DSYoung, I was nearly arrested for indecent exposure one time (I was pissing behind a bar, not exposing myself to kiddies, I might add.)
Does that count?
Bricker,
you’re this up on the law and you’re not even practising? You read the Supremes as a hobby??
and the stars o’erhead were dancing heel to toe
jti,
You know that phrase, “The grass is always greener…?”
When I was a PD, I was miserable, because while I fully supported the lofty ideals of the adversarial system, the reality was that I was playing a part whose real-world results were making me sick.
Even moving to appellate work didn’t help.
Now that I’m no longer in the trenches at all… I keep up with Virginia and federal law, and chime in every time there’s a criminal law question, and wonder why I left.
Then I remember the 3 AM nausea, and that’s that. I’m happier where I am.
But sometimes I miss it.
- Rick
In response to SingleDad’s question, there has been a fair amount of research into the effect Miranda has had on the criminal justice system. A law professor from Univerity of Utah by the name of Paul Cassell has published many articles in which he attempts to determine the cost of the Supreme Court’s ruling in Miranda on criminal conviction rates. If you are interested, he was published in: 28 Ariz.St.L.J. 299 (1996); and 90 N.W. U. L.Rev. 387 (1996) among many others.
In these srticles, Prof. Cassell’s research indicates that approximately 3.8% of all criminal cases have been lost as a result of the decision in Miranda. He extrapolates this figure to state that approximately 28,000 violent crimes, and 79,000 property crimes go unconvicted because of Miranda. That’s 28,000 criminals out on the street waiting for you.
He also studied the effect of Miranda on clearance rates of crimes. Clearance rates are when a case is investigated by the police is eventually charged as a crime. his research also indicated there is a hefty drop in the clearance rates of cases because of the decision in Miranda.
In the articles, he lays out the methodology he used to arrive at these figure, but it is much to involved for our purposes here.
With all that said, I’d like to share my views on the suppression of evidence, specifically for confessions. I believe Miranda was judicial activism at its prime, where the Supreme Court hijacked the legislative bodies of the country and decided to make a rule that they basically pulled out of thin air. Prior to Miranda, the standard was one that looked at the voluntariness of the confessions; rather than whether the police said the right things at the right time. I believe that should be the standard for the admissibility of confessions.
Finally, to Bricker, It does my heart good to hear that you got fed up with the P.D. job. I’m hoping you were able to get your soul back too. :-).
AvenueB-dude,
If you want to see some of the results of what happens when rules designed to protect the innocent are not followed, even for the best of intentions, watch the movie In the Name of the Father. It’s a true story of innocent people being convicted by a system that was not intentionally corrupt, but where convicting criminals was given a higher priority than protecting the rights of the innocent.
Rules such as the exclusionary rule are the ways that we keep those sorts of things from happening. Not the ideal situation, but I haven’t heard any ideas that will work any better. I think that as Americans, we all want to keep our hands clean of those sorts of situations. Even if it does mean letting criminals go free when the police screw up.
I knew I forgot to add something . . .
In response to a couple posts in this thread, I think some things need to be pointed out.
No, singledad, suppression of evidence is not a rare occurance that hadly evers happens. Every day in almost every courtroom, evidence is suppressed, for good or bad. Guns, drugs, kiddie porn, all get thrown out quite often, more often than you would think.
Second, the comments that the exclusionary rule isn’t a concern because it only happens when the police screw up, is also patently false. One of the points Ave.b. is making (or I am trying to help him make), is that this area of the law is extremely confusing, and police officers often don’t know from one minute to the next, whether the evidence they obtain will be excluded. Up until yesterday, nobody knew for sure whether you could pat down someone based on an anoynmous tip, and that is just one example.
When police officers deliberately torture confessions, or just charge into a house without a warrant are the exceptions to the rule.
“…a man of infinite jest.”
Oh yes, and to DSYoung:
The Founding Fathers did envision a criminal justice system that had its focus the protection of the rights of the accused. Due Process, Right to a Jury Trial, Self-incrimination are all examples of those ideals. HOWEVER, I have found scant evidence that those ideas were ever meant to allow the Supreme Court to require Police officers to read Miranda rights, or even allow evidence to be suppressed. If the Founding Fathers wanted the exclusionary rule, they easily could have put it in the Constitution or Bill of Rights.
“…a man of infinite jest.”
Well, yes, but what does that mean? It only leads to the question of which procedures are proper and which are improper (and why). My argument is that a procedure is proper when it makes the outcome of a trial more just; ie more likely to acquit an innocent person and more more likely to convict a guilty person. It’s easy to think of procedures that could one of the above; more difficult to think of procedures that do both.
Going off in a new direction, I’m thinking of a case that occurred a few years back. Unfortunately I don’t recall the cite but there was a man living in Mexico who had an American warrent issued for his arrest. Apparently the Mexican government refused to extradite him. He was then abducted (by the DEA I believe) and brought to the United States where the warrent was served and he was arrested. His abduction was obviously the basis for an appeal, but surprisingly the judge ruled that regardless of how he was made to appear in the United States, once he was there he could be legally arrested and tried.
Hopefully, someone can identify this case and give me more details about the legal reasoning and the eventual outcome. On the surface it appears to me to be an overwhelmingly clear case where improper procedure should have negated the warrent and arrest. For police to kidnap a suspect so they can bring him to a jurisdiction where he can be arrested seems outrageous.
I beg your pardon, but that is an extraordinarily misleading statement.
The vast majority of defense suppression motions are denied at the trial court level. While it may happen “every day” in “almost every courtroom” the proportion of successful suppression motions to unsuccessful suppression motions is quite small.
Of the motions that are successful, a small percentage are overturned on interlocutory appeal.
Of the unsuccessful motions, some are mooted by an aquittal or guilty plea. Some form the basis for an appeal after a conviction, and some of those appeals are successful.
Overall, however, the fact remains that it’s very seldom that evidence is suppressed.
Am I imagining it, or did I give this exact information earlier in this very thread?
Unfortunately, it’s not a very good example. The requirement of corroboration for an anonymous tip has been case law since 1990.
Not yesterday. The Florida v. J.L. decision yesterday did not announce a new rule of law.
That said, I admit that the courts may change the rules. The officers who questioned Ernesto Miranda didn’t “screw up” - but the conviction was reversed when the Supreme Court announced a new rule of law. It happens, yes - but very infrequently.
- Rick
Hamlet:
This statement is an unsupported assertion, since you offer no evidence to support it. Indeed, since Bricker plausibly claims to be a public defender, his claim regarding the frequency of evidence being suppressed explicitly contradicts your assertion.
You really damage your credibility when you try to introduce an assertion that has already been shown to be false.
Secondly, you seem to be refuting my assertion that evidence is rarely suppressed. I made no such assertion, indeed I have no basis whatsoever for making that assertion.
You offer no cites, but I went out looking anyway. I found Prof. Cassell’s web site, and found an article on the empircal effects of Miranda. I haven’t yet read it; my critique, pro or con, will appear in my next message. I have to note, however, that Prof. Cassell appears to have a strong bias against Miranda specifically and the expansion of procedural safeguards in general. This bias may of course result from objective analyisis; still, it calls for very close examination of his methodology.
That does indeed seem to be the case. But is that the result of procedural safeguards such as Miranda, and the concept of exclusionary rules in general?
This is an obvious example of the fallacy of argument from ridicule. I understand that you disagree with their conclusion. However it’s obvious in reading the actual Miranda decsion that they decided the case based not on personal whim, but on their reasoned consideration of the facts."
Again, introducing this sort of argument further damages your credibility. If your position is not strong enough to argue it on the facts, then perhaps you should reconsider it.
[query]I have found scant evidence that those ideas were ever meant to allow the Supreme Court to require Police officers to read Miranda rights, or even allow evidence to be suppressed. If the Founding Fathers wanted the exclusionary rule, they easily could have put it in the Constitution or Bill of Rights.[/query]
The text of the Constitution contains no language whatsoever specifying the method of enforcement of its provisions. The framers wisely left it to the actual government to implement those restrictions. By your reasoning, since no specific enforcement mechanism is in place for any provision of the Constitution, it is utterly unenforcable. This is a completely ridiculous conclusion.
You might, however clumsily, be saying that only the Congress has the right to enforce the provisions of the Constitution. In which case the Congress then can pass any law it chooses, without regard to the text of the Constitution, without fear of contradiction from another branch. Also a ridiculous conclusion, and one at odds with the framers’ intent.
Yet another unsupported counter-intuitive assertion. Your one example is false, as Bricker points out. Without evidence, this assertion is not an argument, it’s an opinion, and a weak one at that. And your claim that it is “patently false” (emphasis added) is just absurd.
The Supreme Court found in Miranda that the questioning without first informing the suspect of his rights creates an irrebuttable presumtion of coercion, and thus a direct violation of the Fifth Amendment. Congress may make any rule it desires as long as it offers the same degree of protection as does the warning. It is clear that section 3501 does not offer that degree of protection.
The rights enumerated under Miranda are legitimate: Every person does have the right to remain silent, to have an attorney present during question, regardless of ability to pay. If they say anything to the police, those words can be offered into evidence.
Let’s consider this thought experiment:
First, we assume that Miranda is bad.
Now somehow I am able to magically educate everyone so they now have full knowlege of their rights under the Constitution and won’t ever forget them. It’s obvious that my education campaign produces the identical results as under Miranda.
Since Miranda is bad, it therefore follows that every citizen having full knowlege of his rights is bad (identity).
This is obviously an absurd conclusion. Therefore the assumption must be false, and Miranda is not bad. Q.E.D.
To refute the above reasoning, you must show that Miranda has some different effect than educating a person as to his rights, and your disagreement with Miranda is caused by this difference.
Just so the record is straight, I am a former public defender, and do not now practice law at all.
Or so I plausibly claim, anyway. 
- Rick
An analysis of POLICE INTERROGATION IN THE 1990S: AN EMPIRICAL STUDY OF THE EFFECTS OF MIRANDA BY [Paul"]HTTP://WWW.LAW.UTAH.EDU/FACULTY/BIOS/CASSELL/]Paul]( [url="HTTP://WWW.LAW.UTAH.EDU/FACULTY/BIOS/CASSELL/) G. Cassell and Bret S. Hayman
Analyzing a lengthy study such as Prof. Cassell’s is difficult to do succinctly. I can however, say with confidence that Prof. Cassell does indeed persuasively demonstrate that:
However the study does little to refute the assertion of Prof. George Thomas that:
Prof. Cassell responds that:
To answer this question, Cassell offers:
It seems hard to me to differentiate denying the police permission to ask questions differs in any meaningful way from the assertion of the right to remain silent or to have an attorney present.
Prof. Cassell goes on to quote Prof. Thomas:
But this example is clearly off-point; Miranda applies only to custodial interviews; the above example seems much more pertinent to a noncustodial* context. Indeed, Prof. Cassell notes that:
Thus Miranda has its intended effect of shifting interviews to more obviously noncoercive environments.
Prof. Cassell makes the bizarre claim that:
This interpretation of the facts seems incomprehensibly contradictory. The police have personal and professional interests in obtaining confessions; were Miranda truly extending “too far”, one would indeed expect them to “push the bounds” as much as legally possible. That they fail to do so tends to support the intentions of Miranda, not undercut them.
In conclusion, it seem clear that the overall confession rate to police has dropped since Miranda. Prof. Cassell notes that “more research is needed,” still, this study does little to address the fundamental assertion of any critic of Miranda: that the decision has reduced the voluntary confession rate.
No matter where you go, there you are.
Neither Miranda or Gideon really created new rights. Suspects prior to Miranda had the right to remain silent, the decision just said that they must be made aware of that right. Suspects prior to Gideon had the right to an attorney, the decision just said that they were entitled to this right regardless of whether they had money or not. Essentially, these Supreme Court decisions just moved these rights from possibilities to general practices.
Strap yourself in 'cause it is go time.
A.
My assertion regarding the amount of suppressing of evidence done in courtrooms was not an “extraordinarily misleading statement.” It was a response to a posting of Singledad, wherein he stated:
The Facts:
In 1984, in U.S. v. Leon, the Supremes conducted a review of various studies into the cost of the exclusionary rule in lost convictions. They concluded:
“the cumulative loss due to nonprosecution or nonconviction of individuals arrested on felony drug charges is probably in the range of 2.8% to 7.1%. . . . Data [from California] suggests that screening by police and prosecutors results in the release because of illegal searches or seizures of as many as 1.4% of all felony arrestees, . . . that .9% of all felony arrestees are released because of illegal searches and seizures, at the preliminary hearing or after trial, . . . and that roughly .5% of all felony arrestees benefit fom reversals on appeal because of illegal searches.”
United States v. Leon, 468 U.S. 897 (1984)
As pointed out by Craig Bradley in THE FAILURE OF THE CRIMINAL PROCEDURE REVOLUTION (1993), those number indicate that roughly “30,000 cases were dismissed nationwide in one year because of the exclusionary rule.”
Now, to me 30,000 criminals directly benefiting from the exclusionary rule, is not rare. I understand that compared to the PERCENTAGE of cases in the criminal justice system, it is 1%, or rare; but that was not my assertion. The refutation by Bricker (and bandwagoning of SingleDad) that the PROPORTION of suppression motions granted is a small percentage is not a refutation. I was talking the number of criminals boys, not proportions. My most sincere apoligies to those who misconstrued what I stated.
FYI, In a report by the US Accounting Office done in 1979, in its report to Congress regarding the impact of the exclusionary rule on federal prosecutions, they stated that 80 to 90% of all motions to suppress are denied. This research has been used as evidence regarding the overwhelming flood of frivolous motions filed by defendants in an attempt to suppress evidence against them; as well as proof of the extraordinary burden the exclusionary rule puts on the criminal justice system. For examples, see SYMPOSIUM ON REFORM OF THE EXCLUSIONARY RULE: AN INTRODUCTION, 26 Pepperdine L. Rev. 789 (1999). or James Ranney, THE EXCLUSIONARY RULE — THE ILLUSION V. THE REALITY, 46 Mont. L. Rev. 289. (1984)
It appears that it is up to those who read this thread to determine whether the 30,000 times a year, that evidence is suppressed is “very seldom,” or “more often than you would think.” But thank you for pointing out that my statement could be misconstued.
B.
I again appreciate Bricker’s critique. In my original point that the police do not always know whether evidence will be excluded was supported by the example of the Supreme’s decision in Florida v. T.L. One of the reasons that the Supremes take cases is when there is a difference in the law in circuits. The TL case dealt with whether officers can pat down a suspect on the basis of an anoynomous tip that the suspect had a gun. Some courts had held that there was an exception to the rule that anonymous tips must be corroborated in cases involving weapons because of the greater potential of harm. It was precisely because some courts had made that ruling that the Supremes took this case in the first place. Bricker, I’m sure you would have to agree that the Supremes do not normally take cases unless there is conflict of the law. The police officers in the places where the lower courts had held there was an exception, thought they had admissible evidence. It wasn’t until the Supreme’s stated that they didn’t that they knew for sure. Though not perfect, I stand solidly by my example.
For the smug Singledad:
Pepperdine University conducted an empirical study of the exclusionary rule, oddly enough entitled “The Pepperdine Study”. For a full recitation of the study, you can check out IF ITS BROKEN, FIX IT; MOVING BEYOND THE EXCLUSIONARY RULE, 83 Iowa L. Rev. 665 (1998), or the abovelisted Symposium piece. They made some interesting findings, based on the research: “First and foremost, our study confirms that police officers do not adequately understand the complicated law of search and seizure.” Perrin, Caldwell, Chase, 26 Pepperdine L. Rev. 971 (1999). at page 974.
The point I made then, and make again now, is that suppression of evidence is more a mistake of the police officers than deliberate misconduct. Why have an exclusionary rule to deter police misconduct, when, in fact, it does not deter misconduct! My example was not “false,” it is completely based on evidence, and it is not merely a “weak” opinion. I await your apoligy.
As you can tell from my post count, I am new to the boards. If this is the way that newbies are welcomed, you need some help. I greatly appreciate the comments of Bricker, I will always try to put my evidence into the posts I make in the future, no matter how boring or tedious. But the smug, self-congratulating tone of a SingleDad, attacking my credibility right out of the box, is a great disincentive to continuing a thread.
To continue:
C.
For over one hundred years, the U.S. criminal justice system had no exclusionary rule. Prior to 1914, when the Supreme’s decided Weeks v. U.S., 232 U.S. 383 (1914), unconstitutional behavior by police was not viewed as a sufficient reason to exclude evidence that was relevant to the guilt or innocence of the accussed. After Weeks, evidence could be suppressed, but only in federal prosecutions. It had no effect on State’s prosecutions, which is a majority of criminal cases. In 1949, the Supreme’s held that the Fourth Amendment DID apply to the States, but did not make the exclusionary rule mandatory in State proceedings. Wolf v. Co. 338 U.S. 25 (1949). The judges felt that the exclusionary rule:
“was not derived from the explicit requirements of the Fourth Amendment; it was not based on legislation expressing Congressional policy in the enforcement of the Constitution . . . [it was] A MATTER OF JUDICIAL IMPLICATION.” Wolf at 28.
Eventually, after changes in the makeup of the Supreme Court, along comes Mapp v. Ohio, in which the Supreme’s overruled Wolf and decided that the exclusionary rule was applicable to the states.
What is fascinating about Mapp, is that the Supreme’s decided that way, WITHOUT MAPP ASKING FOR IT. The Court, in a stroke of judicial activism, went out of their way to make the exclusionary rule applicable to the States. The Supreme’s decided that, things had changed from the time they decided Wolf. They felt that the exclusion of evidence was now necessary, because alternative remedies for violations of the Fourth Amendment were ineffective.
As SingleDad pointed out, the text of the Constitution is silent as to how its provisions are to be enforced. The exclusionary rule, however, upholds the Constitution, not by punishing the man who violated it, buy by letting off somebody else who violated another law. (My apoligies to Professor Wigmore and his quote.)
My APOLOGIES for my mispelling (oops there I go again).
“…a man of infinite jest.”
i apologize if this hasbeen already brought up but I’ve only skimmed some of the post in this interesting but long thread.
My question is, what’s the big deal with Miranda? If anything I think it would help the cops. All they are required to do is read a brief (relatively) card, and the arrestee is assumed to know their rights. Since a case could be thrown out before Miranda if a suspects rights were violated, it seems to me that Miranda provides the police with a concise and clear procedure to ensure a suspect knows their rights.
BTW, in the actual case the court summarized police techiques to elicit a confession. Believe me they were pretty shocking.
Perked Ears indicate curiosity - Know Your Cat
When you make discreditable statements, I will call your credibility into question; one post or a thousand. I pointed out an error, and you seem to have corrected it. This is called learning. I didn’t insult or flame you, which by the standards of the net is quite restrained. Quit whining and get on with your arguments.
To you and the other lawyerly types out there: remember that few of us have law libraries at hand; if you can cite a reference available on the web, it’s much appreciated.
On to the arguments.
Seems low to me, especially considering that the immoral drug laws have made criminals out of millions of otherwise law-abiding people.
[query]“30,000 cases were dismissed nationwide in one year because of the exclusionary rule.”
…
Now, to me 30,000 criminals directly benefiting from the exclusionary rule, is not rare.[/query]
By definition, a person is not a criminal unless they have been convicted of a crime. If the case has been dismissed, they are presumed innocent. You might as well say 30,000 innocent people have avoided jail because of the exclusionary rule.
You’re asserting that a denied motion is “frivolous?” Absurd. I don’t know criminal procedure very well, but it seems you make a motion, a short argument and the judge says “upheld” or “denied.” Regardless, the judicial system is supposed to be always correct, or as close as possible, and it should not tolerate mistakes in the pursuit of efficiency.
If you implement a rule of law to discourage an activity, and that activity goes away, that is an argument in favor of a particular procedure. In fact, the rule works so well that we even catch mistakes as well as deliberate misconduct.
Now that your evidence is in, I will upgrade your example from “false” to “weak”. It’s part of the police in general and an officer’s job in particular to understand the search and seizure laws. If they can’t figure out ten year old case law, that just seems an example of incompetence.
The larger question, as to whether the police “adequately understand the complicated law of search and seizure” is stronger. It seems, however that the good faith provisions help mitigate this complexity.
That’s exactly why the enforcement provisions were left out of the Constitution: To allow future generations creativity and intelligence in how to implement its provisions.
BTW: I’m surprise you missed an opportunity here to say “the smug SingleDad.” 
Everyone, left, right and center, uses “judicial activism” to mean, “a rule I don’t like.”
The Supreme Court is authoritative: If they interpret the Constitution a particular way, that is by definition what it means. If you disagree, then by definition you’re wrong, unless you can convince them to change their minds.
No matter where you go, there you are.
Mr. Borgia,
Your point is very well taken. In fact, many police officials have praised Miranda, because it did gives them a concrete list of things they had to do to help ensure a confession would be used in court. It made it easier on them, because it gave them a bright line test to help them when questioning a subject.
However, many of the problems people have with Miranda are not about how hard it is for police to comply with it, but with what happens to the case when it is violated. That brings the thread back to its original topic: the exclusionary rule. If police did not read the accused his Miranda rights before taking a confession, the confession would be held to be inadmissible.
In paragraph B, Hamlet says:
You’re right when you suggest that the Supremes often take cases to iron out differences amongst the circuits. You’re further correct when you suggest that some courts appear to have tried to carve out a firearms exception for Terry stops based on an anonymous tip.
Here they are: U.S. v. McClinnhan, 660 F.2d 500, (DC Cir. 1981); U.S. v. Clipper, 973 F.2d 944, (DC Cir. 1992); U.S. v. Bold, 19 F.3d 99, (2nd Cir. 1994). McClinnhan is weak, since presumably it would have overruled in pertinent part by Alabama v. White.
There is one additional case that does not explicitly hold that a tip regarding a firearm vitiates the White requirements of corroboration, but in fairness, I agree it suggests it: U.S. v. Walker, 7 F.3d 26 (2d Cir. 1993).
Please note, however, that none of these cases are controlling in the 11th Circuit, which includes Florida. The officers in Florida had no reason to believe that anything other than White was good law – in other words, that a anonymous tip must be corroborated, and it is of no moment that the subject of the tip is a possession of a firearm.
The closest support for your view that the state of the law in Florida was even slightly ambiguous comes from U.S. v. Gibson, 64 F.3d 617 (11th Cir. 1995), suggesting that an anonymous tip together with a threatening or furtive gesture will justify the officer’s drawing his own gun and detaining the gesturer until it can be determined whether in fact he has a gun. Gibson, supra, 623-24. The instant facts are clearly distinguishable. Moreover, this is not a difficult distinction to teach officers.
If I am missng any case law here, please let me know. Absent that, I stand by my original assertion: the police in Florida could reasonably be expected to know the law, since it derived from ten-year-old Supreme Court case law, and never ‘overruled’ or modified in Florida by the Eleventh Circuit.
Actually, I think you give a bit too much credit to the reasonableness of the position taken by the officers in, let us say, DC. They did not - or should not - have believed they had admissible evidence, since they were relying on a circuit court’s substantive modification of a Supreme Court decision. Still, I grant you that the state of the law in DC and in the Second Circuit was far from clear on this issue.
Of tangential interest: under Teague, would you say that J.L. has prospective or retroactive effect?
- Rick