That said, it's obviously not a just result in an individual case like this. It would be nice to be able to have justice in these situations without losing the overall disincentive. I'm not sure that it's possible, but would love to be wrong.
Then escalate that punishment as needed, still without throwing out evidence? E.g. fire the officer outright, don't just "discipline" him, and impose a penalty to his whole department.
What we where discussing was if inadmissibility is good for serving justice (as opposed to serving as a guard against illegally obtaining evidence, and if so, whether we can abolish inadmissibility and use other, equally capable guards against illegally obtaining evidence).
If you think someone missed something from the comment he was responding, say what that was, instead of posting zero-content critiques please.
It saddens me deeply that Chahal is getting off on a technicality but ultimately there is no such thing as an objective spirit of the law. All we have is the literal text - the letter of the law - that's in the books and two sides arguing the best way to interpret that.
Writing warrant laws that protect good citizens and good citizens only is impossible. Sometimes bad people slip through the cracks as a result. It's a tragedy, but not one that is easy to remedy.
I think what the parent is asking for is precisely for it to be the case ALWAYS, so whether this specific instance would set a legal precedent shouldn't matter.
>The DA can use this case as an argument next time, effectively incentivising police to breach protocol in other more egregious ways like tapping into your phone calls without reason.
Not if in addition to using the evidence they also punish the policemen who broke protocol as severely as needed to de-incentivise them.
Except we have some reason to believe they would value nailing some specific criminal with video evidence over their careers...
Indeed, prosecutors do not think about legal precedent. There is nothing stopping them from trying to win a case illegally. However, a guilty ruling can be appealed by the defendant to another court, which will look at the original case and undo the guilty decision if it was achieved incorrectly. The judge hearing the appeal will interpret the law strictly. Only in situations where the law is vague can precedent be set. Precedent means that in the future, judges considering the same vague law will try to interpret it consistently with past interpretations. If a judge ruled that a blatantly illegal court procedure could stand, then this ruling would also be appealed. Appeals can go up a chain of appeals courts all the way to the Supreme Court.
If a prosecutor blatantly broke the law to win a case, and the judge allowed it or colluded with it, and an appeals review made this known, then this would adversely affect their careers. This, combined with that most prosecutors and judges want to follow the rules, is an effective deterrent against illegally obtained evidence.
Even if a prosecutor thought, similarly to you, that it's worth breaking the law to win a case, they are discouraged from doing so by the appeals system.
Are they immune to prosecution if they do illegal things?
"Immune", no, but prosecutors are unlikely to prosecute prosecutors for overzealous prosecutions, and are also unlikely to prosecute police and others working for prosecutors for their actions in support of such prosecutions.
If so, this is to me is an absurd conclusion.
Those two things should be independent. If policeman obtained evidence illegally but it's still good evidence (not planted for example) then it shouldn't be ignored.
Policeman should be prosecuted for breaching the law that specifies how evidences can be obtained and punished, but that's separate case.
In this case also, surely the crime committed is against his girlfriend, who herself can go to the police and make charges against him. I appreciate in domestic abuse cases this is hard, but this is how it needs to be done to maintain any trust in the legal process.
The guy is clearly a disturbed specimen and needs rehabilitation.
The very idea is that the rulebook is NOT thrown away.
Illegally getting evidence is still punished.
It's just that said evidence remains evidence.
And what does "Who knows what evidence can be collected" mean? Is there a bad kind of evidence when it comes to the truth of a situation? Especially video evidence?
I think you misunderstand what the rulebook is. The most basic "rulebook" in the US, and the one on which the exclusionary rule is founded -- the Constitution of the United States -- does not limit the actions of individual government agents, it limits the power of government. If you allow the government to use evidenced gathered outside of that rulebook, but punish government agents, you are, indeed, throwing out the rulebook, and the entire idea of limited government.
A central idea of the US system of government is that preventing tyranny by unbound government is more important than punishing individual wrongdoers in the criminal justice system.
Without the exclusionary rule, not only would the people not be secure in the persons and property from unreasonable searches and seizure (an ideal which is impossible to attain, though obviously necessary to strive forward under the Constitution) but would be deprived, by government, of life, liberty, and property -- through the criminal process -- without due process of law, insofar as they would deprived of such as a direct result of government exercising powers which are strictly and expressly outside of those permitted to it.
> We are one of the few western countries to have it; it's an idiosyncratic response to the problem it addresses.
The United States is unusual in the world (including among "western countries") in the degree to which limited government is a foundational principle. Even other countries with a strong attachment to the idea of fundamental rights often have strong foundational attachment to ideas of governmental (e.g., parliamentary) sovereignty and supremacy, with boundaries of rights and limitations on actions of government agents being determined through the regular legislative process and not being fundamental limits on government.
The question isn't "why do we have 4A" or "why should we be concerned about due process". It's "why do we have this idiosyncratic rule, as opposed to the other obvious remedies to illegal searches, and how does the rule follow directly from the Constitution, which mentions it never?"
The usually offered alternative remedy is not actually a remedy to the problem, its a remedy to a different problem (and one which has an insurmountable agency problem in a system with a unitary executive).
> The question isn't "why do we have 4A" or "why should we be concerned about due process".
Which is fine, because I didn't answer that. I answered why the rule was essential to protecting the limitations on government in the Constitution, including due process, not why we have the 4A or due process.
> It's "why do we have this idiosyncratic rule, as opposed to the other obvious remedies to illegal searches, and how does the rule follow directly from the Constitution, which mentions it never?"
I never claimed it "flowed directly from the Constitution", so to the extent that is your question, it is a non-sequitur where the question was offered. I have answered why the rule is essential to implement the restrictions on government in the Constitution. If you would like to pose a counterargument, or challenge any part of the answer, please feel free and we can have a productive conversation. But merely making oblique and unspecific references to alternatives is unproductive.
Pretty much all Europeans - the legality of evidence here is only refused in very intense cases (read: torture). And it works quite well tbh...
Also for finding someone innocent. You forgot that.
>As a European (currently!) I would not want to allow this to continue.
Because its drawbacks are?
True, some people may want to break the law to gain evidence to support someones defense. I have a gut feeling this is going to be in the minority of cases.
>>As a European (currently!) I would not want to allow this to continue. >Because its drawbacks are?
It's drawbacks are mainly being that it would be a massive retrograde step.
I'm suggesting something like video evidence of a person committing a crime should be presentable to the court whether illegally obtained or not. It IS evidence of the crime after all, in the dictionary, common, sense.
Now, if the video was indeed obtained illegally, then that's another, unrelated to the case on trial, issue, and can be tried separately, have the officer fired or fined, etc.
The idea is very simple: we don't want the police illegally obtaining video (so we discourage that), but in case there is one and it proves a person's innocence or guilt, we might as well use it at the same time.
Sounds perfectly logical to me.
The idea that: we throw video evidence that a man is innocent and let him get the death penalty, or we throw video that a man killed 5 people and let him get off, because we want to discourage the police from getting video evidence illegally, sounds totally illogical.
There are other ways to discourage the police from doing so in the general case, without throwing away perfectly good evidence if it's available in a particular case.
Of course I'm not an American, and so I was not accustomed from a young age on what should and should not be held as evidence, and what is the supposed one and only way to go about such things.
And what about civil cases? I'm pretty sure there would be much more illegal surveillance if the gathered data could be useful in courts.
You're questioning some basic principles of our legal systems that are here to protect us. I agree that it's sad to see how far corruption can go and it's also discouraging to see criminals walk on technicalities, but those issues should be solved differently, not by reducing the scrutiny on obtaining evidence.
See [Blackstone's formulation](https://en.wikipedia.org/wiki/Blackstone%27s_formulation) and [Exclusionary rule](https://en.wikipedia.org/wiki/Exclusionary_rule) for a more detailed explanation.
I see you've never been illegally searched. Don't worry, it will happen. If you're lucky they don't just take your things.
Illegally-obtained evidence applied in a criminal trial is always the government violating the fundamental law which governs its authority to use power against the people. Which is why it cannot be tolerated (and why it is not the exclusionary rule, but the increasingly broad exceptions to it, that are problematic.)
Its true that such excesses by government also involve violations of the law by individual agents of government, which ideally should be punished as well as the government being constrained from exceeding the Constitutional limitations on its powers, but such punishment -- which would require the government to pursue it, which is why it rarely happens -- is no substitute for restraint on government.
Also, the officer who violates will be penalized, and after they fall out of public awareness, they will be brought back for their fine contribution to somebody's political resume.
If somebody is breaching your 4th amendment laws he should be prosecuted, but if he finds a a photo of you and a corpse it shouldn't be ignored just because search was unreasonable.
> if he finds a a photo of you and a corpse it shouldn't be ignored just because search was unreasonable.
You could not be more wrong on that point.
I know that's the theory, but most countries don't have this and they also don't have plague of illegal searches, because, you know, they are illegal and police tends to do legal things and they can loose their jobs and be prosecuted if they start doing illegal things.
I understand that the police in USA has a history of allowing police to do illegal things for "greater good" but ignoring evidence is way too late to prevent illegal searches.
> You could not be more wrong on that point.
In USA, maybe UK and perhaps few other countries I'd be. In virtually any other country I wouldn't be.
The correct action in a case like this should be to use the evidence, and discipline the officer who violated regulations.
When a court disregards obvious evidence, and pretends that it doesn't know things it really does; and when that happens to help a well situated criminal with expensive attorneys; then the obvious result is that the public loses trust in the government. The abstract ideal of "justice" must guide how the law is applied. If courts rule only according to the law as it is written, rather than on the spirit behind it, when courts fail to bring justice to criminals; then we will end up with lynch mobs and vigilantes.
Who can blame a redneck in the woods stocking up on guns when you read an article like that? You can't trust a government that lets a wife beater run free because of a formality. When the system doesn't protect you, you need to protect yourself. Right?