I am not a lawyer!
Sep. 18th, 2008 01:12 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
trinityvixenBut 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.
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.
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no subject
Date: 2008-09-18 07:22 pm (UTC)no subject
Date: 2008-09-18 07:39 pm (UTC)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.