I am not a lawyer!

[trinityvixen]

But is this really even an issue?

Police officers still enjoy the respect of the people, despite individuals' personal dislike or instances of corruption. Like doctors, they have an almost automatic trust extended them by people who depend on them doing their jobs fairly and legally. The default assumption is to trust them and trust them totally. Only upon further interaction do people tend to recognize that police officers are just people, too.

An officer who violates that trust makes the whole organization look bad if he/she is caught out at it. But, because of that trust we imbue in anonymous Officer Doe, we don't question him/her when he/she says something happened like this or like that. We will trust Officer Doe over John Smith, whose apartment was tossed without a warrant, or who was pulled over for no reason other than to agitate him into a charge of "resisting arrest." (Most frequently applied to people who said officer would love to pull over for "living while black.")

So we have this set of rules. You want evidence? Here's how you get it. Get it any other way, and it's no good. You're breaking the rules. We have the good faith exception, though. Play by the rules but get tripped up by someone faltering in the handoff? That's not your fault, you proceded in good faith, you've got a chance to make it stick.

Take away the last of those rules--that if you break the rules, you get nothing--and you open the door to abuse and corruption. Maybe the people really did the crime the evidence indicates. But maybe you should slip in that extra kilo of heroin or make the blood trail a little more graphic just to be sure there's no doubt in a jury's mind. I sympathize with the frustration of law enforcement but that does not mean I trust the frustrated will always behave themselves if they've no fear of the penalty if they don't.

Worse, there's this idea that the severity of the crime that would have been committed, when you, illegally, catch them with damning evidence should justify the inclusion of evidence despite the violation. That's what someone like Scalia would want us to include. Yes, my temper would agree; my rational side recoils in horror. Because if we open that door--how aggregious an offense it is decides how likely or not the evidence is to be kept--suddenly, everything's relative. Can we afford that in a law system already skewed in its prosecutions and decisions by the wealth and color of the defendants? Using the example of the coke bust in the article: who would set the quotas? This much drugs, evidence is out; this much and it's in? One judge thinks a few deaths resulted from a lost prosecution should be on the heads of the police who botched it; another does not and lets it in. There'll be more shopping for judges than there is now.

When it comes down to it, I still believe in the idea that our failure to convict criminals is the lesser crime if our actions lead to our convicting innocents. (Better nine criminals free than one innocent man in jail, that sort of thing.) Given our over-stuffed prisons, we have very little trouble convicting people. Is it too much to ask that the trust we have in our officers be backed up with consequences if it favors protecting the innocent even at the expense of protecting some of the guilty? I think not.

This is a backdoor to disaster.

Comments

[chuckro.livejournal.com]

For reference, I agree wholeheartedly with you. The draconian blanket rule cuts off the "gateway": "I'll just pull over this one guy." "I'll just intimidate this one witness." "I'll just plant this one little bundle of pot..." Currently, the incentive is for the police to play everything as exactly by-the-book as possible, which is the closest we can get to fair protection for everyone. Remove that, and they do have an incentive to cheat; a huge one.

[trinityvixen.livejournal.com]

It's not that I don't trust the police. Despite my well-read collection of incidences where trust has been misplaced, I still do. I still default to trusting them. I know they're human, but it's there in my head: trust them.

But when I can remove myself from my own emotional response, I can remember that they're human and humans are not to be trusted in general. They need boundaries to curb their lesser impulses, as we all do.

[chuckro.livejournal.com]

I'm less likely to trust the police in general. Part of that is because I'm a 20-something male and have a curly beard, so even if I'm wearing a suit, I know they think I'm more suspicious than any women in the room and most non-black men, non-turban-wearing. Most of it, though, is because I went to high school with some guys I know grew up to be cops. They were incompetant assholes then; I have no reason to believe they've changed.

[trinityvixen.livejournal.com]

That's why I think increased experience with cops tends to diminish that automatic respect. Brushes with them have tarnished that respect, but not entirely overcome it. It would take knowing people who are comes or became them as you do to really get rid of that.

[wellgull.livejournal.com]

That's a rule you should break.

The police are your enemy, in pretty much every case. They exist to enforce the authority of the powerful over the powerless. When it's the powerless hurting the powerless, well, they can't much be bothered. When it's the people trying to exercise their rights, well, a little bit of brutality never hurt the right kind of anyone, did it?

I would posit that they are generally less worthy of trust than the average person (when acting in official capacity). After all, they are trained to lie and intimidate in order to catch people...

[viridian.livejournal.com]

I agree.

Common sense wants me to argue that the man with 77 pounds of cocaine deserves to be prosecuted no matter what circumstances they were found under, but you're right. It's worse for one innocent person to be convicted than for ten to get out on loopholes.

Maybe I'd feel differently if he were a murderer, but laws can't be subjective.

[trinityvixen.livejournal.com]

Laws can be subjective after a fashion--we do mitigate based on intent and what not when it comes to degrees of murder. But we don't say it's less murder when we do so. This would be that equivalent--77 pounds is more murder than 76 pounds, for example. That, you can't do.

I only see it as a way to soothe tempers and open floodgates of wrongness. Even if it would appease my temper, I know better than to let my temper decide these things.

[edgehopper.livejournal.com]

It's worse for one innocent person to be convicted than for ten to get out on loopholes.

But this isn't about convicting an innocent person--it's about convicting a guilty person, the evidence against him having been collected illegally. So that argument doesn't work.

Really, what you have to argue is "Worse for one innocent person to be searched than for ten to get out on loopholes"--which is a much harder argument.

[viridian.livejournal.com]

I'm not going to argue with you about this, because I've disagreed with every single comment you've ever written on trinityvixen's lj and it's just not worth the hair it would make me want to tear out.

If you don't understand that it is, ultimately, about protecting innocent people, then I can't help you.

[edgehopper.livejournal.com]

It's about protecting innocent people, but not from a conviction. A person with 76 lbs. of cocaine is guilty of possession with intent to distribute, regardless of how the evidence was obtained (as long as it's clear that it wasn't falsified, which isn't what the exclusionary rule is about.)

No, it's about protecting innocent people from illegal searches that intrude on privacy, cause fear among the general population, and go against basic principles of liberty. I would prefer to do that with stronger civil liability (and maybe even criminal liability) against the police officers and cities responsible, rather than by letting the guilty go free (and not holding the police personally responsible.)

[chuckro.livejournal.com]

would prefer to do that with stronger civil liability (and maybe even criminal liability) against the police officers and cities responsible

The puts the police and cities in charge of watching (and policing) themselves and their friends/coworkers. That creates a huge possibility of corruption. The current system puts the police effectively in conflict with prosecutors and judges. People without power are always better off when those with power are working against each other, rather than together. (Governmental checks and balances work on exactly the same principle as corporate competition!)

[chuckro.livejournal.com]

But this isn't about convicting an innocent person--it's about convicting a guilty person, the evidence against him having been collected illegally. So that argument doesn't work.

I can't tell if you're playing devil's advocate here or not.

The major argument for the exclusionary rule, I'd think, is just our Constitutional protection against unlawful search or seizure. The same rules must be followed whether you've committed a crime or not; and the police must follow those rules for everyone equally.

Removing the rule brings us to the slippery slope of unfair/unbalanced prosecution. If the police felt free to search anyone, compelling reason or no, would they search more black people or white people? If they caught me black people with these searches, would they have the time or incentive to go after the white people who got lucky or covered their tracks slightly better?

What you should be arguing is if two people commit the exact same crime in the same way for the same reasons, they should expect the same [statistical] chance of getting caught, the same treatment by police, the same protections under the law, and the same punishments. To do otherwise makes a mockery of the justice system.

[edgehopper.livejournal.com]

What you should be arguing is if two people commit the exact same crime in the same way for the same reasons, they should expect the same [statistical] chance of getting caught, the same treatment by police, the same protections under the law, and the same punishments. To do otherwise makes a mockery of the justice system.

Yes, that is what I'm arguing. But the question isn't about ideals, we all agree what the ideal is. The question is what remedy you use when the police treat people differently. The exclusionary rule lets the criminal go free because of the police screw-up, while giving the police no harsher sanction than an angry lecture from the prosecutor--and, if the police actually search an innocent preson, no sanction at all. I'd prefer stronger civil and possibly criminal liability for such screw-ups, which would hold the right people responsible while not letting the criminal go free.

[chuckro.livejournal.com]

and, if the police actually search an innocent preson, no sanction at all.

What stops the innocent search-ee from bringing suit against the police, asking for punative damages for voilation of civil liberties? It seems to me you can do that now, even with the exclusionary rule.

[edgehopper.livejournal.com]

Qualified immunity is very strong here (the rule that a government officer isn't civilly liable for offenses in his official capacity unless he knew he was wrong), and it's very hard to win that kind of law suit. I would eliminate the exclusionary rule and weaken qualified immunity in turn, ideally.

[chuckro.livejournal.com]

How would you weaken it, though? Make it not matter if he knew he was wrong?

Would you support a similar weakening of qualified immunity for government officials? I have a vague recollection of this (or something similar) coming up in a discussion with Cubby a ways back.

[trinityvixen.livejournal.com]

The burden of evidence has to be on the police and prosecution because we have a system of innocent until proven guilty (in theory, if not always in practice or mindset). Therefore, consequences of police misconduct should penalize the police at the expense of the alleged criminal because he is still innocent until he is convicted at trial, no matter how many bags of coke are in his trunk.

If you don't throw out the evidence but conclude that the search was done wrong, you're basically looking at the guy getting off anyway because the door was opened to police misconduct, and there's no shutting it. Juries are very sympathetic to that. It comes back to the fact that people, as a whole, trust cops. The second they hear that the cops weren't playing it square as they should have done, doubt creeps into the whole performance, and you're looking at a pretty high no-conviction percentage anyway. Especially if there's reason to suspect that with misconduct might come evidence tampering, suspect intimidation, etc. etc. that would make a looser case seem like a stronger one.

In essence, acquittal is a foregone conclusion once misconduct is introduced, except where bias and inequalities of representation would then lead poor minorities to be the overwhelming majority of cases where there was a conviction. We are already facing that problem now. Getting rid of the exclusion rule would make that disparity worse and not really put away more criminals.

[edgehopper.livejournal.com]

I don't quite understand what you're getting at. If juries will acquit no matter what where there's police misconduct, and will convict black people no matter what, then why does the exclusionary rule even matter?

I don't really have a dog in this fight, because I don't care too much about the issue. I was just interjecting to stop the idea that the exclusionary rule is about protecting the innocent from conviction. In reality, it's about punishing the police, and protecting the innocent from searches without cause.

[trinityvixen.livejournal.com]

I don't quite understand what you're getting at. If juries will acquit no matter what where there's police misconduct, and will convict black people no matter what, then why does the exclusionary rule even matter?

Because of the biases in the courts, the few incidences where they don't acquit will throw the disadvantaged into prison. There's also the open door to planting evidence which means the innocent or at least those guilty of lesser crimes could go away for more time than they are due.

And from a purely practical standpoint: holding trials where the spectre of police corruption all but assures acquital is a goddamned waste of the court's time and resources. Better not to open the can of worms that might impinge on our civil liberties if only because it doesn't waste money and time, which would be better spent on cases where everything was by the book.

[bigscary.livejournal.com]

Alternatives to the exclusionary rule:
1: Put police in jail when they violate civil rights.
2: Put notes in police files when they violate civil rights.

(2) does nothing, (1) is a bit harsh, as they are often VERY minor mistakes or errors of judgment. The exclusionary rule protects us, makes sure cops do their jobs right, but doesn't disincentivize cops from being zealous investigators.

[trinityvixen.livejournal.com]

Bravo, correct. It all comes back to the fact that the alternative(s) are just untenable.

[kent-allard-jr.livejournal.com]

The exclusionary rule has launched a thousand Dirty Harry stories, and with the court's rightward drift, I'm not surprised it's endangered. Still, I'd like to know how many people it sets free, and how these other countries deal with rights-violations, before I'd support scrapping it. Unfortunately the NYT article doesn't seriously address those issues.

[trinityvixen.livejournal.com]

I sincerely doubt it sets free even as many as it seems to on shows like Law and Order. On the whole, cops that I've met are very cautious about not conducting illegal searches because of the headache and possibility of having evidence thrown out, for which they would have only themselves to blame.

I think the threat isn't realized punitively a fraction as often as it is in how it encourages cops to conduct themselves better, which, honestly, benefits everyone.

[wellgull.livejournal.com]

Seriously address? NYT?