Squaring the Culture

"...and I will make justice the plumb line, and righteousness the level;
then hail will sweep away the refuge of lies,
and the waters will overflow the secret place."
Isaiah 28:17

07/23/2008 (10:40 am)

Countdown to Oct 7

On October 7 of this year, the US Supreme Court will hear the case of US v Herring and decide whether the police department’s accidental failure to purge an expired warrant from their records requires the exclusion of evidence gathered under that warrant. The case triggers the hope that finally, after almost 50 years of insanity, we can kiss the Exclusionary Rule goodbye.

The Exclusionary Rule is the one that says that evidence gathered improperly cannot be used at trial. According to standing Court precendent, the 4th Amendment protection against unreasonable searches and seizures and the 5th Amendment protection against self-incrimination are not safe unless evidence gathered in violation of the 4th Amendment gets excluded from trial; and not only the evidence gathered improperly, but evidence obtained as a result of other evidence that was gathered improperly, is “fruit of the poisoned tree” and must be excluded as well. The case of Weeks v US in 1914 created the Exclusionary Rule for federal cases (which became a major issue during Prohibition), and in 1961, Mapp v Ohio extended the rule to all the states by way of the 14th Amendment. Some recent cases, however, have suggested that the Court is ready to make changes in the Exclusionary Rule.

Adam Liptak of the New York Times observed over the weekend that the US is alone among nations of the world in enforcing an exclusionary rule.

The United States is the only country to take the position that some police misconduct must automatically result in the suppression of physical evidence. The rule applies whether the misconduct is slight or serious, and without regard to the gravity of the crime or the power of the evidence. (my emphasis)

“Foreign countries have flatly rejected our approach,” said Craig M. Bradley, an expert in comparative criminal law at Indiana University. “In every other country, it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence.”

But there are signs that some justices on the United States Supreme Court may be ready to reconsider the American version of the exclusionary rule. Writing for the majority two years ago, Justice Antonin Scalia said that at least some unconstitutional conduct ought not require “resort to the massive remedy of suppressing evidence of guilt.”

Naturally, the fact that the US does something unusual does not constitute a reason, in and of itself, to change the rule. It does give us a reason to evaluate whether our distinction is a good one, though, and in this particular case, the foreign courts have a point. Some violations of 4th Amendment procedure are more blatant, and more damaging to the fabric of society, than others. Furthermore, the truth is the truth, and evidence gathered improperly is still evidence in an objective universe, regardless of whether it’s permissible in court or not. If we know a crime has been committed, and we know by whom, we should be able to prosecute it.

Law professor Eugene Volokh suggests that the reason for the US’ unique approach to excluding evidence is that it’s a judge-made rule in the US. In most other nations, the legislature made the rules about investigative procedure (and they should have the power to do so here as well). Since the rule was made by judges, they naturally chose to enforce the rule in a manner that remains entirely under the control of judges, avoiding the need for cooperation between branches of government.

This is insanity, and should be changed by the legislature. It makes no sense to allow known criminals to walk away unpunished because of procedural miscues, without at least allowing a court to weigh the miscue against the seriousness of the offense. Allowing the court to weigh the comparable offenses could permit the prosecution of criminals while protecting our liberty.

I actually prefer allowing all evidence gathered to be used in court, but punishing the investigating officers for violations of 4th Amendment protections, graded by the seriousness of the violation. This would deter unreasonable searches, but permit the system of justice to prosecute known criminals. The one exception should be for coerced evidence, which should never be admitted.

There’s no question that protections must remain in place to guard citizens against unreasonable police actions and self-incrimination. However, the Exclusionary Rule has outlived its usefulness as a means to achieve this. Let’s hope the Supreme Court restores the nation’s sanity, and gives us a way to prosecute known criminals without giving away our protections altogether.

Photos from IMDB.com. First photo is of Jack Webb and Harry Morgan as Sgt. Joe Friday and Officer Bill Gannon in Dragnet 1967. Second photo is of Joe Ross and Fred Gwynne as Officers Muldoon and Tootie in Car 54, Where Are You? circa 1961.

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