In The Balance
The Supreme Court has declared by 5-4 in Herring v. United States that evidence found by police based on a negligent error need not be suppressed. I can't call this a surprise, since it's consistent with previous decisions of this court.
What they seem to be doing is rewriting the Exclusionary Rule. Rather than a bright line--make a mistake, the evidence can't be used in court--they prefer a balancing test.
I would think this takes away a fair amount of deterrence against sloppy police work. I don't like relying on good faith from any government officials--I want them to get it right or know there'll be consequences. If you make exceptions like this to the Exclusionary Rule, haven't you, in effect, balanced it away?
posted by LAGuy @ 12:06 AM
10 Comments:
It looks, from press accounts only, like the Court through Roberts is saying that as long as we have no evidence that the police are deliberately trying to violate the 4th amendment, they will give them a break (somewhat similar reasoning was used in the religious display cases where the focus was on intent)
Of course, looking at unintended consequences, the problem is that police (and everyone else for that matter) do not just blithely go about their business and then wait for rules to be applied to see if its OK- they actually mold and conform their behavior around rules in order to achieve or avoid a particular outcome. Here- the message (oversimplified) is that the 4th amendment won't apply as long as you can point to messy paperwork or some other oops.
No only as LAGuy posits will such a rule fail to deter sloppy police work, it actively encourages it for the smarties who know the rules.
LAGuy wrote:
Here's what I never understood. Normally, when we want to deter bad behavior on the part of X, we threaten to punish X. So why, when it comes to police procedure, do we deter bad behavior on the part of X by punishing Z, who he never met?
If I were to break into someone's home and rifle through their things, I could be convicted of burglary. Even if I took nothing of value.
But when Officer Krupke performs an illegal search, and finds evidence that Norman Bates is a mass-murderer, the court "punishes" Krupke by suppressing the evidence against Bates. Who suffers from this? His next ten victims, who will now die. Take that, Krupke! You searched someone illegally, and as punishment, we'll let ten women you don't know die!
Alternative plan: The evidence can be admitted (although of course we must carefully establish that the evidence is genuine, not forged). Krupke receives actual punishment (i.e., money, probation, or jail, just as if he were a CITIZEN like me). And the ten women are not left to die at the hands of a known murderer.
I forgot L.A. Guy's quote:
I would think this takes away a fair amount of deterrence against sloppy police work.
False analogy above-The purpose of the exclusionary rule is not to punish victims of crimes but protect us all against the heavy hand of the state.
The argument above could be used to justify the power of police to apprehend or even kill persons who look creepy- After all if Krupke can't shoot the creepy Bates when he sees him and Bates goes off and kills victims, then the "no shoot on sight" rule has the effect of punishing his next ten victims.
The argument is the police and DAs need to solve murders and relieve themselves of public pressure (they are after all judged on results more than on accuracy), so its that much easier to create evidence and get around citizen protections in order to get a conviction.
I've had the same thinking as Lawrence King since law school. the primary objective for Rules of Evidence, as I understood the case law, was to promote presentation of the best, most accurate evidence to the court. Hearsay is barred because direct testimony is far more accurate and reliable. Admissions against self interest, however, are sometimes allowed because it is unlikely that someone would say something that hurts themselves.
So I always thought it contrary to the search for truth to disallow perfectly good and relaible evidence for a reason unrelated to the purpose of the trial. There should be other ways to discipline the police force.
I understand the argument that the esclusionary rule protects the public from evil authorities abusing their power, but as Roberts says i nthe opinion, there can be no deterrent effect on people who are making a mistake without intent. Especially in this case where the mistake (leaving a warrant in the computer system) is completely remote from the search that took place.
Before the Exclusionary Rule (to keep it simple) a remedy was to sue the officer who screwed up. The Exclusionary Rule works (or worked) for two reasons--it gave a direct remedy to someone whose rights had been violated (it's hard, especially if you happen to be a criminal, to sue a cop who put you away) and it effectively deterred police mistakes, intentional or not. The truth it, cops liked the rule, becasue while no one wants to screw up so big that your evidence can't be used in court, they like being sued even less, even if the odds of being sued are low.
"I understand the argument that the esclusionary rule protects the public from evil authorities abusing their power, but as Roberts says i nthe opinion, there can be no deterrent effect on people who are making a mistake without intent."
This is mistaken. Knowing you will punished even for unintentional errors really makes you run a tight ship. Also, it's very hard to deter this any other way, since it would be very hard to successfully sue a cop in a situation where he clearly didn't intend for the mistake to happen.
This is mistaken. Knowing you will punished even for unintentional errors really makes you run a tight ship.
Correct. Put another way -- the harm of unlawful searches is minimized at the least cost when it is imposed on the police officer, who is in the best position to avoid errors by using additional care.
The Exclusionary rule punishes no one but the victim.
Sure, but punishment is not the purpose. Deterrence is.
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