Posted on 04/30/2002 9:54:01 PM PDT by Spar
You presume the jury knows about such acts at trial - should the police successfully cover their tracks, the jury cannot account for facts they are not aware of. What do we do after the fact, if such acts only come to light during an appeal?
And even if they know, I'm not at all sure it would make a difference - "It's a mere technicality," the prosecutor will say. "Don't release this obviously guilty person because the police tried just a little too hard." Given how readily you accept this reasoning, I really would prefer not to have juries make this decision at all. Some things are rightly beyond the reach of juries.
Surely it is in the interest of society to punish the police officers. Just as it is to ensure the innocent person goes free.
Ah, but in the scenario I posited, we know that the person is innocent, because I stipulated such. Need I point out that, in reality, we have no such omniscient abilities? Did that person confess because they were under duress? Or did they confess because they were under duress and they were, in fact, guilty? Who knows? How on earth can we possibly know? Do we take the chance and let that person go?
Without procuring a warrant, a police officer searches a house and finds a dismembered body in a trunk. An investigation ensues and all evidence points to the house's resident as the murderer.
Do we throw out the evidence and let the murderer walk? (Assume that all evidence is "fruit of the poisonous tree".)
If we do, who suffers the consequences? The cop? No. Society? Yes. The murderer's next victim? Certainly.
You illustrate very well why arguments-from-the-consequences are not permitted in front of juries. "Release this man, and others will surely die," the prosecutor says. Cute, but it does not change the simple fact that we cannot punish people for things that they have not done yet. What someone might do in the future has no bearing whatsoever upon the truth of allegations about what they have done in the past. Either the accusations are true in and of themselves, or they are not, and what happens tomorrow cannot and will not change the truth of what happened yesterday.
If such truth cannot be established by the state to the satisfaction of its members, then that person must be freed, regardless of the alleged consequences. "People will die for your freedom," goes the chant. "Big deal," says I. "People die in the name of freedom every hour of every day of every week."
The First Amendment guarantees the rights of all citizens to speak their minds. As a result, people with hateful or odious views will be able to spread their vile thoughts to others who will act upon them, and people will die. The Second Amendment guarantees citizens the right to own a gun. As a result, some people who are ill or deranged or criminal will find it easier to obtain a gun and use it for bad acts, and people will die. The Fourth Amendment prevents the police from randomly kicking down doors and searching for criminals. As a result, some criminals will escape detection until after they have committed some bad act, and people will die. The Fifth Amendment prevents the police from simply locking criminals up without a trial. As a result, criminals for whom there is a lack of evidence to convict will go free, and people will die. The Sixth Amendment guarantees the accused the right to call witnesses on his behalf, and to have the assistance of counsel on his behalf. As a result, some criminals will be able to sway juries or exploit weaknesses in the law in order to free themselves, and people will die.
"People will die" is not an argument at all. That is the price of freedom - imperfect safety. We, as a society have decided that freedom is worth the cost to us, but the fact that it has a cost is not enough to remove those freedoms. If that bothers you, there are other societies that have expressed their preference for safety over freedom - perhaps you would find one of them a better fit for your own personal preferences.
Justin
I still don't think this was shoddy at all. Under these standards any judge can throw out anything. With all confessions, for example, there is some level of persuasion. The witness consented to the police behavior. If he regrets it afterwards, tough for him.
Do we not throw out the evidence and let the accused 'drug dealer' walk? -- (Assume that all evidence is "fruit of the poisonous tree".)
-- Of course we should, in america, given our constitutional protections.
If we do, who suffers the consequences? The cop? Lets hope so, but its doubtful. -- Society? Yes, to a certain degree. It has corrupt law enforcement. -- The rogue cops next victim? Certainly.
But I am not advocating punishing the man for a murder he has not committed, but for the murder he has already committed. He killed someone and chopped him up. And while we may not discuss the possibility that he will murder again with a jury, it is certainly appropriate to discuss the matter outside of that context.
And while I agree that freedom comes at a price, I do not agree that this is the price that the framers had in mind when they adopted the 4th & 5th Amendments. The exclusionary rule was not adopted until Weeks v. US in 1919 and was not applied to the states until Mapp v. Ohio in 1961. (The court flirted with the idea of a federal exclusionary rule in Boyd v. US in 1889, but quckly backed off.) The modern tendency is for the courts to try to find exceptions to the "rule" they created.
One of the primary purposes of government is to protect the citizens from criminals. But, as you point out, an equally important function of our government is to protect the liberty of the people. A proper balance must be struck. I think it is important to discuss what that balance is.
I have a preference for sticking with the original understanding of the Constitution. I believe holding police officers indivually responsible for their misdeeds is a better protection of the rights of the citizens than the exclusonary rule. This is especially true in light of the myriad exceptions to the rule the court has created. Now the police can violate your rights and in all probability, the evidence will still be admitted.
There will now be a period of silence from the rule of law, while straw men are comtemplated, and hopefully rejected.
-- More likely, we will hear that you have 'misrepresented' his statements.
There will now be a period of silence from the rule of law, while straw men are comtemplated, and hopefully rejected.
-- More likely, we will hear that you have 'misrepresented' his statements.
Whoops, spoke to soon, -- although it could be construed as a sorta combo effort.
The judge cited several factors showing that Awadallah's consent to go with FBI (news - web sites) agents to their office and later submit to a lie detector test was the "product of duress or coercion."
She said the agents repeatedly made a show of force by telling him he could not drive his own car, frisking him, refusing to let him inside his apartment and ordering him to keep a door open as he urinated. Moreover, she said, one agent threatened to "tear up" the apartment if he did get a warrant.
One question first. Have you ever been arrested or detained? Have you personally witnessed one?
If you had, I will tell you for a fact that the Police will NEVER let you drive your own car to the station (you could simply drive away never to be seen again, a likely scenario in this case).
The Police will ALWAYS frisk you before they put you in their vehicle (for their own protection if nothing else).
The Police will NEVER let you back into your home where you can easily destroy any potential evidence (this is so obvious I feel I should not even have to point this out).
The Police will NEVER let you into a closed room unattended no matter if you need to urinate or not (you might have the evidence flushed as well).
The Police WILL make threats to suspects, it happens every minute of every day, is this knews to you? (if simply THREATING someone, not with physical violence, but property violence, is sufficent to have a case thrown out, I fear for our society even more).
as I see it, this is a matter of an activist juror going out of his or her way to find a justification, ANY justification, to get the result they desire.
I am not a Lawyer, Police Officer or anything related to it. I can tell you from personal experiance that ALL of the things that happened in this case are a normal part of Police work.
Please cite for me any relevent Constitutional Amendments that were violated that would pass the Common Sense test to any person on the street.
I cant wait for this.....
Cheers,
knews hound
Then prove it. And do so within a system that protects those rights I enumerated earlier, so that those for whom guilt is not quite so self-evident may be assured that they are given a fair and open trial. Do so within a system that assures that those who are actually innocent can have a fair and open trial. Really, now - there is already an inevitable imbalance in favor of the state over any one individual, simply by virtue of the fact that the state has resources beyond the reach of virtually any one person. How much farther would you tip the scales?
And while we may not discuss the possibility that he will murder again with a jury, it is certainly appropriate to discuss the matter outside of that context.
If you wish. However, I strongly suspect that the purpose of discussing it in any context is the same as the prosecutor's purpose in discussing it in front of a jury. For the prosecutor, his intent is generally to paper over a weak case, lacking evidence for the accusations at hand, by tossing out a series of hypothetical bad acts that might be committed tomorrow. I am asked to weigh the actual loss of freedom for all against a series of hypothetical bad acts that people might commit. In the face of such, I am forced to remain pragmatic and consider this in simple cost-benefit terms. I find that the price of freedom is far outweighed by the benefits it brings to all of us as individuals. If we think, however, that the hypotheticals outweigh the actuality of the situation(s) before us, I would propose that we simply dispense with the formalities and pre-emptively lock everyone up, on the grounds that they might do something bad someday.
The exclusionary rule was not adopted until Weeks v. US in 1919 and was not applied to the states until Mapp v. Ohio in 1961.
I am not so far removed from con law that I have entirely forgotten the history of the exclusionary rule - you omitted Wolf v Colorado from your discussion ;)
But along with the history of the law, it is equally important to understand why the law is what it is. Again I ask, what is the practical benefit of having a Constitution if there are no consequences when it is violated? Which is, of course, exactly what the court considered in Weeks, and again later in Mapp:
"If letters and private documents can thus be seized and held and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment declaring his right to be secure against such searches and seizures is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution. The efforts of the courts and their officials to bring the guilty to punishment, praiseworthy as they are, are not to be aided by the sacrifice of those great principles established by years of endeavor and suffering which have resulted in their embodiment in the fundamental law of the land."- Weeks v. United States, 232 US 383 (1914), at 393.
Powerful stuff. And a problem that remains inadequately addressed. How are we to reconcile the protections assured us by the Constitution with the notion that the state may ignore them at will, with no penalty to itself? In such a case, does it really mean anything at all to have "rights", if they are less than sacrosanct?
The state and society are not one and the same - the two sets are not a perfect union. The state is less than society itself - it is a representative of society, an agent thereof. So the question is asked - when we punish the state, are we not in some sense punishing ourselves? When we restrict the state, are we not in some sense restricting ourselves?
And the answer is, of course. Of course we are. When we restrict the agent of society, we restrict society's freedom to act through that agent. But that is what the Constitution does - it restricts society by restricting its agent, the state, in order to promote the liberty of the individual. What we lose in collective "rights", we gain back in individual rights. And of course, the Constitution makes no guarantee of collective rights in any case, nor does the Bill of Rights address the rights of "society" or of its agent, the state - it addresses the rights of individuals. If promoting the individual at the expense of society is what is objected to, then the Constitution itself will have to be scrapped, as it is entirely premised on that very proposition.
In any system where there is some notion of individual liberty, restrictions on the powers and rights of the collective and its agents are inevitable. For individual rights to have any meaning at all, there must always be some ground where the state cannot tread, no matter how noble the goals. One cannot simply suggest that we are "punishing ourselves" when we punish the state - it is inevitably so, if we accept the notion of individual rights at all. And what we lose as a collective, we gain as individuals. This is the choice our society and the founders have made. Insofar as it protects the individual at the expense of the state, the exclusionary rule is entirely compatible with the Constitution, by assuring that those restrictions that the Constitution places upon society and its agents have some practical meaning, and are more than simply noble platitudes to be dispensed with at the convenience of the collective, or the whim of its agents.
It is, we might say, the inevitable logical conclusion of the ideas of the founders. Whether the founders themselves envisioned something exactly akin to the exclusionary rule or not is almost irrelevant. The founders were brilliant and wise men, and key to their wisdom was their understanding that they could not imagine what the future might hold. While it is important to consider the intent of the founders, I think that they would blanch at the notion that we are to be mere slaves to men who have been dead for two hundred years, and simply let them do all the thinking for us. We must be prepared to apply for ourselves the brilliant and wise principles they have left for us, to the issues we have before us, and exercise our own reason and judgement. Let the Constitution be our guide, not our master. It serves us - we do not serve it.
John Adams said that the Constitution and its system of government was wholly inadequate for an immoral people. He might as well have added that it was wholly inadequate for an unthinking and unreasoning people...
Second of all the judges ruling linking detention and grand jury testimony are 2 diff things. The judge linked them both and that is an interpretation of the law that she and she alone has ever made.
Though I have no law degree, I actually have extensive credentials and enough smarts to read and understand case law of so required.
That's two questions. No. Yes.
If you had, I will tell you for a fact that the Police will NEVER let you drive your own car to the station (you could simply drive away never to be seen again, a likely scenario in this case).
Certainly. If a person is arrested or involuntarily detained for questioning, then they will not be permitted to present themselves.
The Police will ALWAYS frisk you before they put you in their vehicle (for their own protection if nothing else).
Certainly. The safety of police officers is a legitimate concern, and the minor intrusion upon those detained is not unreasonable in light of that.
The Police will NEVER let you back into your home where you can easily destroy any potential evidence (this is so obvious I feel I should not even have to point this out).
Certainly. It is entirely reasonable that the police have an interest in preventing those accused of crimes and arrested or detained involuntarily from destroying evidence of their guilt.
The Police will NEVER let you into a closed room unattended no matter if you need to urinate or not (you might have the evidence flushed as well).
Certainly. Those accused of a crime and detained involuntarily might very well seek some opportunity to destroy or dispose of evidence of their guilt, similar to above.
So, now that I've apparently given away the farm by accepting almost all of your propositions, why am I still confident?
Why, because every single one of those things you cite as an example is only applicable to a person who has been arrested or involuntarily detained, of course.
Was he arrested or involuntarily detained? Of course not - they got his consent to take him down to questioning. He consented to go with the FBI, and therefore was there voluntarily, of his own accord. As a person not involuntarily detained, he can piss with the door closed if he is so inclined. He can even drive his own car downtown - remember, he's supposedly going voluntarily, so he doesn't really have to go at all. And that means that if he changes his mind as he's getting on the freeway, too bad for the fibbies. And it means that if he wants to go home, he can, unless he's under arrest or involuntarily detained. Which, of course, he wasn't, since they thoughtfully asked for his consent to accompany them. They lied to him and coerced him by treating him as though he were involuntarily detained when he wasn't.
Sorry, chief - you don't get to have it both ways. You cannot have people come in voluntarily and then apply all the same pressures you would to someone being held involuntarily. If someone being held involuntarily asks to go home, you can laugh in his face. If someone is there voluntarily, and they ask to go home, you can't. That's the way the ball bounces - if they wanted to treat him as an arrestee, then arrest him, dammit.
The Police WILL make threats to suspects, it happens every minute of every day, is this knews to you? (if simply THREATING someone, not with physical violence, but property violence, is sufficent to have a case thrown out, I fear for our society even more).
"Confess or we'll burn your house down."
Your silly, inane allegations about libertarians add nothing, as usual.
Don't get me wrong. I'm probably more libertarian than many of them. But I don't believe in lying. The Constitution does not require the "exclusionary rule". Plus, I don't believe that the exclusionary rule protects the citizen from government. Like I said, the cop who screws up a search warrant just goes and gets another doughnut. But if we make him personally liable for his wrongful acts, he'll pay more attention.
I don't mean that cops should be made to pay big damages for honest mistakes. I don't for instance think that they should have to pay for typos in a search warrant. But breaking into a house is another matter.
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