February 20, 2008
WELL, THAT WOULD REALLY SECURE W'S PLACE IN THE CONSERVATIVE PANTHEON:
Supreme Court to review 'exclusionary rule' on evidence: Conservative justices have their eyes on the controversial doctrine that requires judges to throw out anything improperly obtained by police. (David G. Savage, 2/20/08, Los Angeles Times)
The Supreme Court agreed Tuesday to reconsider the reach of the "exclusionary rule," a doctrine that has been controversial since the 1960s because it requires judges to throw out evidence if it was obtained improperly by the police.Several of the court's conservatives, including Chief Justice John G. Roberts Jr. and Justice Antonin Scalia, have signaled they would like to rein in this rule.
Every day, police officers stop cars or make arrests by relying on information in the files or on the computers of a police department. On occasion, the information is outdated or inaccurate. What should be done, then, if the officer finds drugs or guns in a stopped car, only to learn later that he relied on faulty information when he stopped the vehicle?
Judges have been divided on that question. Some have said the evidence is tainted and should be suppressed. Others have said the evidence should be used if the officer was not to blame for the error.
Justice requires that those who obtain evidence improperly be punished accordingly but that all pertinent evidence be admitted. Posted by Orrin Judd at February 20, 2008 7:19 AM
Yes, that's the only thing that makes sense.
Posted by: erp at February 20, 2008 10:15 AMWe exclude involuntary or even uncounselled confessions because they may be unreliable. The Fourth Amendment exclusionary rule is almost exactly the opposite: we exclude physical evidence of almost certain reliability because we wish to deter police misconduct.
Now if the policeman who made the search and seizure has acted reasonably on the facts as they are known to him, then there is no deterrent policy to be pursued applying the rule, and the evidence should come in.
Substituting punishment of the individual policeman for the exclusionary rule is a bad, bad idea. Such a system would result in police inaction, in police avoiding the situations which might get the officer in personal trouble. Rather, we want him to act in the close cases. In most instances, he will have guessed rightly; in those few exceptions, at least the controlled substance or weapon is off the street, and the criminal is the one who is hassled.
Posted by: Lou Gots at February 20, 2008 5:33 PMWe exclude involuntary or even uncounselled confessions because they may be unreliable. The Fourth Amendment exclusionary rule is almost exactly the opposite: we exclude physical evidence of certain reliability because we wish to deter police misconduct by making such evidence inadmissable.
Now if the policeman who made the search and seizure has acted reasonably on the facts as they are known to him, then there is no deterrent policy to be pursued applying the rule, and t he evidence should come in.
Substituting punishment of the individual policeman for the exclusionary rule is a bad, bad idea. Such a system would result in police inaction, in police avoiding the situations which might get the officer in personal trouble. Rather, we want him to act in the close cases. In most instances, he will have guessed rightly; in those few exceptions, at least the controlled substance or weapon is off the street, and the criminal is the one who is hassled.
Posted by: Lou Gots at February 20, 2008 5:38 PMJustice requires that unreliable evidence be excluded and reliable included, no matter how obtained. Discipline is a separate matter. To exclude reliable evidence reduces justice to cheap tricks and procedural fetishes.
Posted by: oj at February 20, 2008 6:29 PM