mark@elsie.UUCP (07/14/84)
<> Unfortunately, the only effective means of keeping the police from gathering or manufacturing evidence illegally it to exclude it from the trial. Suggestions that police should be prosecuted for their "crimes" will not work because: (a) the police won't arrest; (b) the DA won't prosecute; and (c) often there's no criminal statute that deals with the "crime". For example, there's nothing illegal (usually) about obtaining an improper search warrant, even if its done on purpose. In any event, the Nixon/Reagan court seems determined to gut the exclusionary rule, and in the next few years we'll probably see some true outrages. I wonder how much damage will be done in the process. -- Mark J. Miller NIH/NCI/DCE/LEC UUCP: decvax!harpo!seismo!umcp-cs!elsie!mark Phone: (301) 496-5688
jonab@sdcrdcf.UUCP (07/16/84)
In article <1077@elsie.UUCP> mark@elsie.UUCP writes: >Unfortunately, the only effective means of keeping the police from gathering >or manufacturing evidence illegally it to exclude it from the trial. >Suggestions that police should be prosecuted for their "crimes" will not >work because: (a) the police won't arrest; (b) the DA won't prosecute; >and (c) often there's no criminal statute that deals with the "crime". For >example, there's nothing illegal (usually) about obtaining an improper >search warrant, even if its done on purpose. The original justification for the exclusionary rule, (as I understand it), is to protect a person's freedom from "Illegal search and seizure", guaranteed by the U. S. Constitution. The idea was, in order to protect this right, it must be impossible for any government agency to gain from a violation of the right. Thus, illegally gained evidence cannot be used to convict a person. The problem with the exclusionary rule is that it has often been interpreted so liberally that criminals are allowed to go free, even when there was no intent to deny the right of freedom from illegal search and seizure. The alternative to the exclusionary rule is not to make it a crime for the police to obtain evidence illegaly, (unless they broke laws in doing it such as breaking and entering, etc.), but to allow the criminal to sue the police force in civil court on the grounds of violating his civil rights. The criminal will still go to jail when illegal evidence is found, but what cop in his right mind will risk being sued for $1 million because he violated someones rights? Jon Biggar {allegra,burdvax,cbosgd,hplabs,ihnp4,sdccsu3}!sdcrdcf!jonab
wmartin@brl-tgr.ARPA (Will Martin ) (07/16/84)
There's a point here that seems to be being ignored in the discussion of recent Supreme Court decisions on the use of evidence. These decisions are not redoing the basic Constitutional principles; they are modifying earlier Supreme Court decisions. "Loosening" the allowability of evidence is not taking the American legal system back to pre-Revolutionary European monarchical standards -- it is just undoing fairly recent "tightening" of such allowability by other Court decisions within this very century. The legal system in this country worked fine fifty years ago; justice was done at least as often as it is done now, and it was the best in the world then. Things deteriorated with an emphasis on technicalities over basic principles, and recognition of this fact is resulting in a necessary correction, which is merely a return to previously-existing standards. Just because there is change within your lifetime does not mean that this is an endless or permanent trend; these institutions can only be evaluated with a viewpoint spanning centuries. In other words, don't sweat it. Will
ward@hao.UUCP (Mike Ward) (07/17/84)
[] > The original justification for the exclusionary rule, (as I understand > it), is to protect a person's freedom from "Illegal search and seizure", > guaranteed by the U. S. Constitution. The justification for the exclusionary rule is not to protect "a" person's freedom, but to protect the freedom of all of us. The idea being that if bustin in and rippin off whatever could be found did no good, then maybe the police would show some restraint. The people who are supposedly being protected by the exclusionary rule are not the criminals (whoever that may be - lord knows *I've* never broken any law, ever) but us good guys. Of course in these days when innocent people are rousted by the midnight marauders (oh, excuse us maam, wrong address - just put your thumbprint hear, take off all your clothes and we'll have you out on bail in just a few hours) and the guilty going free (Elisabeth Manning kills her son and gets off because, in order to find the kid's body they had to question her illegally), it's not working out that way. We've got the worst of it both ways. One is tempted to believe that the cops don't really care whether their actions result in a conviction, that they jsut like to kick ass. If this is the case then the whole basis for the exclusionary rule is invalid, and the only recourse for us good guys is the courts. Of course there are problems there, too. The laws being what they are, it is very difficult to get a judgement against the police, no matter how flagrant the violations. What year is this? -- Michael Ward, NCAR/SCD UUCP: {hplabs,nbires,brl-bmd,seismo,menlo70,stcvax}!hao!sa!ward ARPA: hplabs!hao!sa!ward@Berkeley BELL: 303-497-1252 USPS: POB 3000, Boulder, CO 80307
dave@utcsrgv.UUCP (Dave Sherman) (07/17/84)
I seem to recall that it was a long discussion about "legal loopholes"
and the exclusionary rule which led to the formation of net.legal,
about 840 articles ago. So rather than say it all over again, why
don't I just dig into my files and see what's cluttering up the disk...
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From: lab@qubix.UUCP (Larry Bickford)
Newsgroups: net.followup
Subject: American Judicial Headache
Message-ID: <430@qubix.UUCP>
Date: Wed, 17-Aug-83 13:59:27 EDT
One of the headaches of the American (can't speak for Canadian)
judicial system is that it has turned from a search for truth into
an adversary system. Whether the defendant is guilty or not means
nothing any more; it now seems that if anyone on the "people's"
side does the slightest thing wrong, the guilty go free. It's an
attitude that's being propagated by the law schools.
The Fourth Amendment states that the people have a right to be
secure in their property. It does NOT state that the defendant
shall go free if his rights are violated. Unfortunately, that has
been the action. A better one would be to convict the guilty and
also prosecute those who violated his rights. (I have heard this
is the case in the UK. Would appreciate correction/information.)
Truth, Justice, and the American Way are concepts now long-gone.
They don't have to be, if we would get our pride out of the way.
Larry Bickford,
{ihnp4,ucbvax,decvax}!decwrl!qubix!lab, {ittvax,amd70}!qubix!lab
From: dave@utcsrgv.UUCP (Dave Sherman)
Newsgroups: net.followup
Subject: Re: American Judicial Headache
Message-ID: <1995@utcsrgv.UUCP>
Date: Thu, 18-Aug-83 13:44:48 EDT
References: <430@qubix.UUCP>
It's important to understand the principle involved in all the
"let the criminal go free because his rights were violated" cases. The
Canadian system is not as bad as the American, but the same conflict
comes up. There's a fundamental incompatibility between the goal of
convicting criminals and the goal of restraining the police from becoming
too enthusiastic. Unfortunately, the only effective was to stop the police
is to let the criminal go, and thus make the overzealousness worthless.
Consider the "Wray" case, for example. Wray was picked up on
suspicion of murder, and the cops put him through a rather intensive
"questioning session". By the end of it, he was a nervous wreck, and
confessed to the killing. Naturally, the confession obtained under those
circumstances was inadmissible was evidence. (The legal test is whether
the confession was given "under fear of prejudice or hope of advantage".)
However, in the course of his confession Wray told the police where
he had thrown the gun (into a river). They went and found it, and used the
gun as evidence to convict him. The Supreme Court of Canada held by a narrow
margin (5-4) that the gun was admissible as evidence, and the conviction
stood.
"Good", I hear you cry, "the guy committed murder. He has to
pay for it". That's what I thought too, at first. But now think about
it. We've just told the police that they can torture suspects as much
as they want, as long as they get some "hard" evidence out of it, haven't
we? Is this desirable?
I don't have the answers. There are two conflicting interests,
and much of the answer will depend on which one you give priority to.
Please understand the problem before criticizing the system.
Personally I think the U.S. courts have gone too far over to the
civil-rights side. But it's not an easy line to draw.
Dave Sherman
The Law Society of Upper Canada (utcsrgv!lsuc!dave)
--
{allegra,cornell,floyd,ihnp4,linus,utzoo,uw-beaver,watmath}!utcsrgv!dave
From dave Thu Aug 18 23:04:42 1983
To: perelgut
Subject: Re: American Judicial Headache
Your solution might be possible; I've thought about it myself.
However, one problem is that punishing the cop, which itself
would have to be a criminal procedure, would (a) not be carried
out very enthusiastically by anybody in particular, and (b)
would require a criminal standard of proof (beyond any
reaonable doubt). Currently you *don't* have to prove more
than on the balance of probabilities that the police were
"overzealous".
From perelgut Thu Aug 18 23:22:35 1983
To: dave
Subject: Re: American Judicial Headache
Simple. All cops are guilty UNLESS they hold all interrogations in the
interrogation room with counsel present and with the goings on being
video-recorded. The criminal procedure could be handled by an ombudsman
position working closely with the offended criminal's lawyers.
As for the standard of proof beyond reasonable doubt, it could be relaxed
except in the recording room. And you could seal the recorder to guarantee
it was secure beyond reasonable doubt. And assume guilt in the presence of
any tampering.
Personally, I think that, when any guilty person is freed on the basis of
an irrelevant or barely relevant, the lawyer should have to serve the
sentence. :-)
Seriously, I don't approve of jails. I'd rather see penalties requiring
full restitution, work camps to get the money where it otherwise wouldn't
be, and capital punishment as a deterrent in captital crimes, with no
appeal after a guilty beyond all reasonable doubt verdict. And I'd like
to see the legal system revamped to reflect this. And I'd like to meet
Tinkerbell. I guess these are all equally likely.
From dave Fri Aug 19 09:46:33 1983
To: perelgut
Subject: Re: American Judicial Headache
Your "all cops are guilty unless...", first of all, seriously
impairs questioning of people who may not even be suspects. And
what crimes would you apply this system to? Murder, presumably.
What about theft under $200 (usually shoplifting), or being found
in a common bawdy house? Anyway, assuming that a cop is guilty
unless proven otherwise, and combining that with criminal penalties
against the cop, goes *totally* against our system. A lot of cops
would quit.
"No appeal after a guilty beyond a reasonable doubt verdict"?
There is currently no appeal on questions of fact anyway. The only appeal
is on questions of law. If the judge allowed in evidence which was
properly inadmissible, and the jury convicted on the basis of that
evidence, you sure as hell want an appeal.
From: mason@utcsrgv.UUCP (Dave Mason)
Newsgroups: net.followup
Subject: Re: American Judicial Headache
Message-ID: <2030@utcsrgv.UUCP>
Date: Sat, 20-Aug-83 00:53:52 EDT
Perhaps a reasonable approach to overzealous police is to have police
commissions (or whatever) that do something serious when personal rights are
infringed in the process of conducting an investigation..something like firing
all with foreknowledge, instead of 2 weeks suspension with pay during the
investigation and 2 week suspension without pay as punishment.
I personally think the Canadian system seems reasonable, because few
people have their rights seriously abused, BUT this seems to depend almost
solely on the good intentions of the police (usually good, but there are some
glaring examples of peoples rights being totally trampled with very little
being done about it). The law has recently changed due to the Charter of
Rights and there was concern that it would make our system too much like
the American one, but there seems to be little indication of much change so
far (14 months).
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David_Sherman%Wayne-MTS%UMich-MTS.Mailnet@MIT-Multics.ARPAsimard@loral.UUCP (07/25/84)
[Do not write in this space] >Unfortunately, the only effective means of keeping the police from gathering >or manufacturing evidence illegally it to exclude it from the trial. Gathering evidence is a very different from manufacturing it. The exclusionary rule is unimportant in the case of manufactured evidence. That is called perjury (and perhaps other things, depending on circumstances). Therefore, to stay on track, this discussion involves only the gathering of factual, valid evidence by possibly illegal means. >Suggestions that police should be prosecuted for their "crimes" will not >work because: (a) the police won't arrest; (b) the DA won't prosecute; >and (c) often there's no criminal statute that deals with the "crime". For >example, there's nothing illegal (usually) about obtaining an improper >search warrant, even if its done on purpose. c) first: if the statutes don't exist, then that's where the problem should be addressed, not (mis)using the exclusionary rule to end run around it. a) and b) I unfortunately don't have any great statistical base handy at the moment, but my recollection of recent news items shows quite a number of police investigations and several highly visible trials of police officers for events in the line of duty. >In any event, the Nixon/Reagan court seems determined to gut the >exclusionary rule. Lunchmeat. For far too long, the citizens of this country have been denied justice and equal protection under law because someone forgot to dot an 'i' or cross a 't'. This is only a move back to a reasonable balance between the rights of defendants and those of victims and citizens. -- Ray Simard Loral Instrumentation, San Diego {ucbvax, ittvax!dcdwest}!sdcsvax!sdccsu3!loral!simard
wdr@security.UUCP (William D. Ricker) (08/07/84)
>>Unfortunately, the only effective means of keeping the police from gathering >>or manufacturing evidence illegally it to exclude it from the trial. >Gathering evidence is a very different from manufacturing it. >>Suggestions that police should be prosecuted for their "crimes" will not >>work because: (a) the police won't arrest; (b) the DA won't prosecute; >>and (c) often there's no criminal statute that deals with the "crime". For >>example, there's nothing illegal (usually) about obtaining an improper >>search warrant, even if its done on purpose. >c) first: if the statutes don't exist, then that's where the problem >should be addressed, not (mis)using the exclusionary rule to end run >around it. Good point. >a) and b) I unfortunately don't have any great statistical base >handy at the moment, but my recollection of recent news items shows >quite a number of police investigations and several highly visible >trials of police officers for events in the line of duty. Yes, Several HIGHLY VISIBLE trials. A few highly visible trials of scape-goats caught red-handed when the media got on a politician's case do not make society safe. The fourth branch is the prosecutor in most such cases. Our system of checks and balances should not come to rely on investigative journalism as the only check--that should be the double-check, as it was intended by our fore-fathers. The Judiciary is the intended immediate check against the Executive Police powers, with the Legislative as the long-term, policy, check. I don't beleive in Innocence Until Caught Red Handed, only until proven; but neither do I believe in Police & Prosecutor departments free from political pressures. Politics calls for solving 'real' crime, not creating distrust in the government (by arresting police, etc.). -- William Ricker wdr@mitre-bedford.ARPA (MIL) wdr@security.UUCP (UUCP) decvax!genrad!security!wdr (UUCP) {allegra,ihnp4,utzoo,philabs,uw-beaver}!linus!security!wdr (UUCP) Opinions are my own and not necessarily anyone elses. Likewise the "facts".