S. Edmund Johnson

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Why Can't Improperly Obtained Evidence Be Used In A Criminal Trial?

In the United States (and possibly other countries as well), whenever evidence in a criminal case is obtained improperly, it is not admissible for trial, and is thrown out. When I say 'improperly', I'm referring to evidence obtained without proper procedure, search warrant, etc. In many cases, this has led to the guilty party not being brought to justice. Not being a lawyer, but rather an engineer with a reasonably logical mind, I find that this practice is totally illogical. I mean, evidence is evidence. There is no real logic in restricting evidence.

I can't believe that this tenet of law was actually written as such, but rather I believe that it had to have been some sort of precedent created by some judge or jurist. And it may have been descended down from old English law. But somewhere along the line, some totally illogical person thought it would be a good way to discourage the police from abusing their powers. In other words, punishing the police. Unfortunately, it is not the police that are punished, but rather the public.

So I actually have three points/questions here:
• Why not instead say, evidence is evidence, and whether obtained legally or illegally, why should it not still be used in a criminal trial?
• And if the evidence was obtained illegally, then why not punish the police with suitable jail time or suitable fines in order to discourage the abuse of police powers?
• Finally, why cannot this tenet of law be struck down with a new law that allows ALL evidence to be used in a trial, and establish proper punishment for any abuses used in obtaining the evidence?

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    Lejan .

    • +3
    Aug 27 2012: I can see your point, yet I do not agree with your conclusions.

    Even logically evidence can not be seen as 'just' evidence as it does matter how it got collected.

    As soon as law allows illegal practices in the strive for justice, it destroys its very own foundation. And even though you would establish punishment for the abuse in obtaining the evidence, this neither legalize nor ratifies this evidence by doing so.

    If I would deal with drugs, get caught and punished for it, do the confiscated drugs become legal this way? No, and rightly so, as punishment can neither be seen as an act of legitimation of the crime itself, nor of its related items or outcomes.

    Several ways to obtain information and/or evidence are defined illegal because of good reasons. Usually they are about the protection of personal rights and privacy issues also and e s p e c i a l l y made to protect citizens against the misuse of power of its government organisations, such as the police, intelligence agencies or military agencies.

    The division of legislative- , judicial- and executive power was installed to reduce the risk of misuse within each field and to provide the most possible equality of all people in front of the law, regardless their position, power, social status, etc. ( and theoretically)

    The simple yet true saying 'The end does not justify the means' is wisely implied in many law-systems around the world, as it guarantees a minimum of misuse of power by not justifying its illegal content.

    Which moral construct would a judge have left if he or she was using illegal material to condemn a criminal? What would be his or her basis of conviction if this basis itself was illegal? As, again, a preceded conviction on gaining illegal evidence does not legalize this evidence on purpose and for a good reason! And that's why illegal ecidence will not be used, regardless of all further consequences.

    Evidence as evidence irrespectively its origin, would open door and gate of misuse of all kind.
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    Aug 27 2012: Because then NO one knows who the good guys are?

    If the good guys cannot even abide by the rules we as a society deem to be important why would anyone adide by any?
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    Aug 31 2012: When evidence obtained illegally cannot be used, it is simply because, no one can be sure it is legitimate. You cannot just show up with a bloody knife, claiming it was taken from the accused's home - you have to be able to prove it.

    Another thing is the rights of an individual. A lot of people are questioned by the police during an investigation... most of them will be innocent of the crime and should not have their home/work searched and money, computers or other items seized.

    The law has to be equal for all. We are all innocents until proven guilty, and even criminals have rights - they might be guilty of a crime, but should not automatically have the right to be innocent until proven guilty taken away in other cases.

    The entire concept of a court is, that one is innocent until a verdict decides otherwise. All doubts should benefit the accused.
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      Sep 1 2012: .
      "When evidence obtained illegally cannot be used, it is simply because, no one can be sure it is legitimate. You cannot just show up with a bloody knife, claiming it was taken from the accused's home - you have to be able to prove it."

      Maintaining the chain of evidence has nothing to do with The Exclusionary Rule.

      "Another thing is the rights of an individual. A lot of people are questioned by the police during an investigation... most of them will be innocent of the crime and should not have their home/work searched and money, computers or other items seized."

      You're right. But that is why we require a search warrant signed off by a judge. However, if as in my example shown above, the police inadvertently exceed the boundaries of a search warrant, then shouldn't they be punished for that? And shouldn't the evidence still be allowed in court?

      See my additional explanation, above.
  • Aug 27 2012: I thought the previous explanations were good, but I'll give it a try.

    To protect the right of the defendant to a fair trial, the courts insist that the state has the entire burden of proof. The state has the obligation to assure that EVERY aspect of the case is conducted legally and according to the rules of the court. Further, the state also must be able to DEMONSTRATE that everything was proper, either by physical evidence or testimony.

    1. If the police are allowed to use evidence that was obtained illegally, this encourages the police to obtain evidence illegally, and we do not want to encourage illegal acts.

    2. The courts have criteria for determining the admissibility of evidence. When it can be demonstrated that evidence was obtained illegally, then the evidence is considered tainted. The courts recognize that it may not be possible for the defendant to determine the entire extent of the illegal activities.

    3. Every piece of physical evidence requires testimony by a human, to determine all of the circumstances regarding how the evidence was found and obtained. Any illegal act makes the testimony suspect; if the person in question has already acted illegally, there is the probability that the person would also commit perjury.

    It is the Supreme Court that has decided that any evidence obtained by means of an illegal act by law enforcement personnel cannot be used as evidence. I am fairly sure that in the USA it is the courts (judges) who determine the rules of evidence, and I suspect that if any legislative body tried to make a law regarding the rules of evidence, the courts would declare the law unconstitutional.

    The punishment for acts that are already illegal are prescribed in the law.

    Hope this helps.

    By the way, the Supreme Court has ruled that evidence obtained by a person NOT in law enforcement, and not acting as an agent for law enforcement, is admissible even if an illegal act was involved. Go figure that one.
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    Gail .

    • +1
    Aug 27 2012: British Common Law - which is the type of law the USA has since the Supreme Court unconstitutionally ASSUMED the power of judicial review and threw out the constitution as the law of the land, replacing it with British Common Law (Mc Culloch v. Maryland - 1819)

    Jefferson said of the silence following this coup d'etat, that Americans would live under the tyranny of an oligarchy, and he was so right.

    (The reason that this coup d'etat was not challenged was because the decision was one that unconstitutionally established a national bank that served the interests of the most wealthy (just like today). Only the most wealthy were allowed to hold federal office. The less wealthy, but still rich, were allowed to hold state level office. Merchants could afford to run for local office. The VAST majority were not allowed to vote at all.

    Every first year law student learns about this, and most politicians are lawyers. When they speak of the constitution, they are referring to the body of precidents and laws that form an unwritten constitution. They know that you think that they are talking about the WRITTEN constitution, but government cannot serve THEIR interests if you figure this out.

    documentary evidence exists. The American history you learned in school is fabricated and looks nothing like what really happened. This is no wonder, because the wealthiest (Rockerfeller, Carnegie, etc) established compulsory education to serve their interests, and a decent education is not in their interest.

    As Rockerfeller said, "I don't want educated people. I want workers".

    Today, laws, not even amendments, are not enforceable because British Common Law leaves the goalpost in motion. It's a very cruel system.
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    Aug 27 2012: Breaking laws to maintain law and order; maintaining dignity in an undignified manner; all seem like dangerous paths to follow.
    If the focus is on evidence and not how it is obtained; then we will soon have a crises in the judicial system.
    Just like so many illegal things are done in a lot of countries in the name of 'national security', then the police and other law enforcement agencies can get away with a lot of evil because they can simply give silly excuses for suspecting an individual.

    Absolute power corrupts absolutely.
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    Sep 2 2012: You did not fail explaining your question and no 'water' was mudded at all.

    Just nobody agreed on your view which seems not to satisfy your expectations ...
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      Sep 3 2012: .
      Well, you're right that they did not agree, but many of the reasons/arguments were mostly off point, and took off on tangents. And they contained a lot of emotional knee-jerk reactions. That was why I felt I had to re-explain it, as I felt that they really weren't getting the point.

      Since I started this conversation I found that apparently many lawyers, jurists and politicians are opposed to The Exclusionary Rule and have advocated its demise. So, I guess am not the only one that finds it to be an illogical solution to protecting Fourth Amendment rights.
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    Sep 1 2012: Well, I guess I'm still failing at trying to explain the question.

    Again, I am not a lawyer, and only recently did I discover that the concept that I am discussing is called "The Exclusionary Rule". This rule is invoked to exclude evidence that is not obtained properly (legally). It's intent is to discourage police abuse of Fourth Amendment rights.

    Now let me describe an example to examine. Detective Smith has received information/evidence (properly obtained) that suspect Jones is a drug dealer. But what he has, may not be enough to convince a jury. So he goes to a judge to obtain, and is granted, a search warrant for suspect Jones' home. During the search of the home, nothing is found. However, parked in the driveway is suspect Jones' Mercedes automobile (verified by DMV records). Detective Smith searches the automobile, since it was unlocked, and discovers drug sales paraphernalia such as a scale, baggies, and a kilo package of an illegal drug in the trunk. Subsequent examination of the car and this paraphernalia by a team of crime scene investigators (CSI) reveals suspect Jones's fingerprints all over everything. Witnesses say that they have never seen anybody else drive the car and that suspect Jones has been the sole driver for the past month. No other fingerprints are found in or on the car or on the paraphernalia.

    Now following here are two scenarios:
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    Sep 1 2012: .
    With the Exclusionary Rule in place:
    1. Detective Smith is congratulated by his peers for making the discovery of the drug paraphernalia and drugs and proving (in their minds because this hasn't gone before a jury yet), that suspect Jones is a scumbag drug dealer. However, he is also told that his search of the Mercedes was not legal because the search warrant was not stated broadly enough to cover the car. Therefore because of Detective Smith's actions, suspect Jones will be set free because Detective Smith did not obtain the necessary evidence properly.

    With an alternative to the Exclusionary Rule in place:
    2. Detective Smith is congratulated by his peers for making the discovery of the drug paraphernalia and drugs and proving (in their minds because this hasn't gone before a jury yet), that suspect Jones is a scumbag drug dealer. However, he is also told that his search of the Mercedes was not legal because the search warrant was not stated broadly enough to cover the car. However because of Detective Smith's actions, suspect Jones will be convicted and sent to jail, even though Detective Smith did not obtain the necessary evidence properly. Additionally Detective Smith will have to spend 30 days in jail and pay a $5,000 fine for his illegal actions.

    Now, tell me. Which scenario protects the Fourth Amendment rights more effectively, and which scenario protects the public more effectively? Also, don't tell me that two criminal wrongs don't make it right. No. Two criminal wrongs are two criminal wrongs, and both should be punished appropriately. I don't believe, as it was stated below, that this is hypocritical in any way.
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      Sep 1 2012: There are several problems with your second example. I'll list two of mine that scare me:

      1. You have created a PRICE that justifies the illegal collection of evidence. Anyone who is willing to pay $5000 and spend 30 days in jail is now motivated to throw all of my individual Fourth Amendment Rights out the window to satisfy their own goal of convicting me. Those "people" include you, everyone on this forum, all my neighbors, the police, and my own government. What if my own government (a "slush fund" in Smith's own police department) or a politician (with his own money) pays for Detective Smith's $5000 fine with my own tax dollars?

      2. Detective Smith gets out of jail 30 days from now. If he is willing to spend another $5000 and 30 days in jail again, HE...not the court who issued the orginal search warrant with restraints on it...gets to decide what can be searched from now on. For all practical purposes, Detective Smith doesn't even NEED a search warrant in his own mind anymore. If he isn't going to ACT in accordance with any restrictions on it, why bother to ask for it in the first place? Let's just let HIM decide what is OK to search all by himself. You have just eliminated all principles of a "Separation of Powers" afforded by my Constitution by separate Executive, Legislative, and Judicial branches designed to monitor each other so no one of them has "exclusive" power. In effect, you have made Detective Smith the "King" (Executive), Congress and the Senate (Legislative), and Judge and Jury (Judicial) branches all by himself. HE becomes the only one to determine right and wrong While gathering evidence against me or anyone else.. That's not a republican form of government with checks and balances. It's a Dictatorship.
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        Sep 1 2012: .
        Your points:

        1. OK. Then how does keeping The Exclusionary Rule prevent what you suggest from happening?

        2. OK. Then how does keeping The Exclusionary Rule prevent what you suggest from happening?
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          Sep 1 2012: 1. If the court has the power to find the evidence "improperly obtained" and says it can't be used, then the defendant's Fourth Amendment Rights are protected.

          2. See answer #1 above.

          Yes, I know what your next objection will be..."What prevents somebody from paying the court $5000 so they will rule the evidence as OK?"

          Nothing. It isn't a perfect world. But I have to believe that there are enough good people in it that eventually the court would get caught and we'd put new judges in it who did have honor and integrity. In the meantime.....

          The Rule is there to prevent government sponsored Illegal Search and Seizure. You want to make all search and seizure legal, regardless of whether it is legal or not. If that ever happens, I'm moving to an island in the middle of nowhere.

          You've proved your point...you can prevent a counter-arguement to any idea presented here. Let's move on.
  • Aug 30 2012: To actually address your questions...
    • Why not instead say, evidence is evidence, and whether obtained legally or illegally, why should it not still be used in a criminal trial? So kill someone to convict someone is somehow valid to you..

    • And if the evidence was obtained illegally, then why not punish the police with suitable jail time or suitable fines in order to discourage the abuse of police powers? Abuse of police powers? What if the citizenry decides to take on the task because they perceive police to be limited on their powers, batman style? We could have parallel justice organizations that will be illegal but police protected, we can call them the justice league.

    • Finally, why cannot this tenet of law be struck down with a new law that allows ALL evidence to be used in a trial, and establish proper punishment for any abuses used in obtaining the evidence? Because you destroy fair trial. How can you presume innocence and abuse an individual's right only to then use that against them? How is that fair? Waht if I killed that guy to get my wife's killer free? Eye for an eye?

    Too complicated... Even for law
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      Aug 30 2012: "So kill someone to convict someone is somehow valid to you.."

      Give me a break. How bizarre is your thinking???

      "Abuse of police powers? What if the citizenry decides to take on the task because they perceive police to be limited on their powers, batman style?"

      That situation already exists.

      To Quote Barry Palmer below:

      "By the way, the Supreme Court has ruled that evidence obtained by a person NOT in law enforcement, and not acting as an agent for law enforcement, is admissible even if an illegal act was involved. Go figure that one."

      "Because you destroy fair trial. How can you presume innocence and abuse an individual's right only to then use that against them? How is that fair? Waht if I killed that guy to get my wife's killer free? Eye for an eye?"

      Your thinking really is bizzare.
      • Aug 31 2012: You can call my thinking bizarre if you like but that is the point, these subjects require you to think differently.

        Mr. Palmer is right. If a private citizen commits a crime to obtain the evidence then it is admissible. What you seem to miss, as well as Mr. Palmer, is that this whole rule is to protect citizens from government. It is meant to curb government's power. It is not meant to protect criminals, it is meant to protect citizens from overzealous governments.

        Put yourself in a court of law. Think you are the defendant. Pretend everyone thinks you are guilty. Now think the police has it in for you because your name is Edmund. What do you think your odds are for a fair trial?
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          Sep 1 2012: .
          You're missing the point. See my additional explanation above.
  • Aug 30 2012: Because individuals have rights. Just as I have a right to a fair trial, defend myself from charges, and to be considered innocent until proven guilty. Take this extreme example. I am accused of killing someone. The police is pretty sure I am guilty and that my wife knows this and is hiding evidence. They are given warrants and nothing turns up and my wife is silent. They grab her and torture her to get her to talk. She talks. Evidence is uncovered and I am put to death.

    What is wrong with this picture? When do we allow the state to infringe on citizen's rights? Are you for torture?

    Different example. I am a Wall Street tycoon. I create a ponzy scheme and I get rich. Things go south and I am accused of defrauding people. The police has reason to think I did it. So they decide to break on my apartment and get the evidence on my PC without a warrant... well, if I am not guilty until proven guilty, aren't they violating my rights? Can they? More importantly should they?

    Last example? Baltazar Garzon in Spain. The just justice Judge decided to allow police to record conversations between defendants and their lawyers because he was sure they (the lawyers) were involved in criminal activities. In the end the Spanish supreme court revoked his status as a judge. Why? because he violated the defendants rights.

    The point is... if you are going to administer justice you need to do so in a manner that is strict and uniform. In law, when rules are broken there are consequences designed for the system to work as best as it can.
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      Aug 30 2012: Geeez people! Get off the torture theme. Do you really think that if somebody wanted to do torture, that they would be deterred by the fact that they might lose a case? Come on. There are safeguards against torture now, and they would remain in place then. Changing the admission of improperly obtained evidence wouldn't change that. The police would still be subject to jail and/or fines in either case.

      The "Exclusionary Rule" (I finally found out that this is the law principle that I have been talking about) does nothing to protect citizen's rights. It only allows evidence to be inadmissible. If police wanted to intentionally violate civil rights, they can do that now.
      • Aug 31 2012: Well, for one, I love torture. That's why I read a lot of TED's posts. But I digress...

        It is about citizen's constitutional rights protection from government officials and from self-incrimination. This rule is very limited as well. The point is, you can't have the cake and eat it. If you want to ensure a level of impartiality and fairness in law then you must agree that citizens should have the same rights when they enter a court of law. If law enforcement is 'allowed' to break the law to obtain evidence, then your rights are trampled.

        Take Miranda warnings. Why would you have such a warning? Because the constitution says so. Fifth amendment. Same source of exclusionary rule.
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    Aug 29 2012: My biggest concern with modern policing as a parent and a highschool teacher is that the police seem to have lost sight of the importance of setting a good example when trying to influence others behavior. Following correct procedure with evidence is part of the police showing that they follow the rules. If we compromise in this then the police are just another gang who will do anything to win the gang war. The problem with "the constable erred" is that it creates a situation where an officer has to weigh up the positives of making a bust against the negatives of a repremand due to unlawful acquisition of evidence.
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    Aug 28 2012: I'd really like to know if "The Constable Erred" concept is actually in place in any other country. Anybody know?
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      Aug 28 2012: not in Canada.

      It appears to apply in England upon judicial review by a parliamentary body.
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      Aug 28 2012: http://www.opcc.bc.ca/Review_on_the_Record/2011-02/2011-02_Submissions_on_Behalf_of_Constable_Ince.pdf

      I was curious....this was the first one that popped up on the search for "The Constable Erred Law/policy"....British Columbia....that would be Canada?
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        Aug 28 2012: Well, I just read through the case and it is about a constable(s) not noticing the deteriorating medical condition of a prisoner. The neglect led the prisoner's death.

        So this is not the same concept as where a police officer (constable) improperly discovers culpable evidence.

        Thanks for looking. My searches didn't turn up anything. I'm going to keep looking though.
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          Aug 28 2012: Dear S. Edmund Johnson,
          Your question above askes...

          " I'd really like to know if "The Constable Erred" concept is actually in place in any other country. Anybody know?"

          The evidence I provided indicates that "The constable Erred" polocy/law is in place. Just because that particular case did not meet your requirement, does not mean the policy is not in place.
  • Aug 28 2012: The way that they obtained the evidence was illegal in some fashion or another. So it would seem hypocritical for a 'criminal' to put another actual accused criminal in jail, and it the united states they strive for equality. Plain and simple it would not be fair If the people who upheld the law were also above it. Who would protect the police from us?
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    Aug 28 2012: Even if you change your topic from "Illegally obtained" to "Improperly obtained" it scares the heck out of me.

    Would it be more improper or illegal to allow me to be tortured to get me to confess to something (obtain the evidence from me)?

    Would it be OK if the torturer said, "I wasn't torturing him, I only coerced him"?

    The foundation of our Justice system is "Innocent until proven guilty". The proof must be obtained by legally acquired evidence against me. I can not be forced to testify against myself. So we can not allow even the reference to the "British constable erred" when considering improperly or illegally obtained evidence. If the "constable" is allowed to say, "Oops! I didn't realize I was torturing the defendant when I got the evidence...Sorry!", then the Judge can say, "Oh, OK! We will then use the evidence!", I shudder to think of the possibilities.

    ADDED: Also, we have a philosphical belief that it is better to let 10 criminals go free than to convict one innocent person., despite the fact the criminals get returned to the free society.
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      Aug 28 2012: You're still missing the point. Nowhere have I advocated abuse of police power. Torture? Where did that come from?

      The topic is "The Constable Erred."

      And if he erred, why dismiss the evidence?
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        Aug 28 2012: I understand you aren't advocating it. But...

        Who decides what limits to place on the EXTENT of the allowable error? It's a short stretch from, "Oops! I erred in illegally SEARCHING the defendant" to "Oops! I erred in illegally TORTURING him."



        The error doesn't have to be conducted by the "police". What if I as a regular citizen just didn't like you and I tortured you or obtained ANY sort of evidence from you by ANY means I chose? Then testified against you with that evidence?

        That's what scares me about allowing illegal evidence "just because" someone (anyone) erred in it's acquisition.
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          Aug 28 2012: The extent of the allowable errors you mention, could still happen today under the present system. What I am questioning/suggesting doesn't change that. It only means that today, the criminal would get to go free due to lack of evidence.
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        Aug 28 2012: I agree they can still happen under the present system. The difference is under the present system those errors result in evidence that can not be used or may actually have been acquired by commiting a crime itself, and that alone provides an incentive for some...not all...people to not do them.

        Your proposed system eliminates any real incentive for more people not to do them. It supports an increase in those type of activities. If all I have to do is say, "I commited an error...sorry" for the evidence to be legally admissable in court, then the floodgates are opened for an increased number of actions that would end up violating a large number of Human Rights issues.

        That's the reason I wouldn't be able to support it.

        It appears your main concern is that a criminal can "get away" with a crime under the present system and be returned to society. Yes, that concerns me to. But I re-iterate my previous comment in an earlier post...we have a philosophy that it is better to allow 10 criminals to go free than to wrongly convict one innocent person. And that SHOULD be a real fear for any civilized society. History shows that people have been coerced, tortured, etc to get them to confess to things they did NOT do, just so the torture would stop. Then they were executed for their confession.

        I would prefer we don't resort to any system that allows the gathering of "legal use evidence" by ANY method like that...even well short of torture.
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    Aug 28 2012: In Australia the laws regarding search warrants are nowhere near as strict as the US. A warrent to search a premises can be granted on an anonymous tip. Any evidence of illegal activity found during the search is admissable, even if it has nothing to do with the original investigation. It is a particular problem for renters as you can find yourself in court because the previous tenants were "partiers" and owed some one money. Even though the original report clearly has nothing to do with you personally as you don't even know the person. The police can still proceed. It makes you want to search every house you rent thoroughly.
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      Aug 28 2012: Well, I'm not sure I would like to have search warrants granted solely on anonymous tips. That is a little too loose.

      However, I think I do agree with the thought that "Any evidence of illegal activity found during the search is admissable, even if it has nothing to do with the original investigation."
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        Aug 28 2012: The problem you have is when it was in the house when you moved in but you can't prove it.
        It's also alittle dissapointing when the police search your house because someone told them you had a meth lab but the search only turns up a bootleg copy of a DVD which they charge you for just because they are already there.
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          Aug 28 2012: I understand your quandary about pre-existing evidence being found. But that situation exists under today's rules. Search warrants are usually somewhat broad, and could possibly include evidence that you're talking about even today.

          But, then, maybe that person shouldn't have obtained a bootleg copy of the DVD in the first place. Owning bootlegged material is illegal, and in a perfect society shouldn't that person be punished as well?.

          No, I'm not advocating willy-nilly searches on a whim. In fact, your statement that a search warrant can be obtained solely on the word of an anonymous informant really gives me the creeps.

          Procedures and laws should always be followed. But if they are inadvertently not followed. then shouldn't the evidence still be allowed, and shouldn't the police officer subsequently be punished?

          By the way, you should view Dan Ariely's talk on cheating:

          http://www.ted.com/talks/lang/en/dan_ariely_on_our_buggy_moral_code.html
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    Aug 27 2012: I guess I muddied the waters by using the term "illegally". To me, improperly obtained evidence is illegal. So I guess my title for this discussion should have been:

    Why Can't IMPROPERLY Obtained Evidence Be Used In A Criminal Trial?

    To quote Barry - "1. If the police are allowed to use evidence that was obtained illegally, this encourages the police to obtain evidence illegally, and we do not want to encourage illegal acts."

    There is really not too much to discourage improper acts on the part of the police right now. Except for blatant abuses. I mean how many officers have been punished with jail time or fines for exceeding the scope of a search warrant? So our current system does not punish the officer for improper acts, but rather it protects the criminal.

    My thought is this. If a person accidentally kills another, he is charged with manslaughter, even though it was an accident. I assume he is charged because of his negligence. So if a police officer doesn't follow procedure and obtains evidence improperly, why not charge the police officer with rights violation for his negligence instead of letting the criminal go free for lack of the crucial evidence?

    Again, quoting Barry: "By the way, the Supreme Court has ruled that evidence obtained by a person NOT in law enforcement, and not acting as an agent for law enforcement, is admissible even if an illegal act was involved. Go figure that one." There you go! It's just a matter of who you work for.

    Does anybody have any comments regarding the "Constable erred" concept?
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    Aug 27 2012: I obviously didn't do a very good job of expressing my thought, and as a result I believe that you have all missed the point. I am not saying that law enforcement be encouraged to go out and violate civil rights. Nor am I advocating "the end justify the means". What I am advocating is that if evidence is obtained illegally, either on purpose or by accident, then why shouldn't it still be used in Court?

    Basically, laws are written to guide behavior for the common good of the public. The laws go on further to punish those who violate the law. Yet in the case of illegally obtained evidence (again, either on purpose or by accident), no punishment is meted out to the police who violate civil rights in obtaining the evidence. Rather we punish the public by letting the criminal go free for lack of evidence. There is no real deterrent for the police, other than to "lose a case".

    I was once told by a Los Angeles police captain (and I don't know if this is true), that in Great Britain, there exists a concept of "the constable erred". If the constable collected evidence improperly, or illegally (again, either on purpose or by accident), he is punished. But the evidence is still considered valid and is used at trial.
    • Aug 27 2012: "Yet in the case of illegally obtained evidence (again, either on purpose or by accident), no punishment is meted out to the police who violate civil rights in obtaining the evidence."

      This is not all accurate. Whenever anyone breaks the law in any way, that person is subject to investigation, trial and punishment. In particular, this is true of law enforcement personnel. In the case of illegally obtained evidence, in most cases no one actually broke a law, they just did not meet the criteria for admissible evidence. For example, the evidence in question may not have been specified properly on the search warrant. Because the judge does not allow the evidence to be used in court, the defendant's civil rights are not violated,

      Often the law enforcement official involved does not break any law. In these cases he/she may be punished administratively and most often this punishment never reaches the headlines.
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        Aug 27 2012: Just think of it S. Edmund Johnson,

        Do you want them to walk into your home, dump your computer, your sock drawer, your record of every video you ever rented, your facebook entries, your emails to friends and family, your deepest most person property and your deepest most personal thoughts and see what kind of case that they can make out of it? I assure you that without these laws in place and without any scientific training or methodology they will make their own assertions and conclusions and it will land even you in jail.

        addition: and then simply say OOOOOOOOOOOpss Constable Error -
        PS I was married to a cop for 28 years
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          Aug 27 2012: No. You're completely missing the point. What you described is total abuse of power by the police. I'm not advocating that. I'm advocating "the Constable erred" concept.
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      Aug 28 2012: Well, the problem you appear to have is that if you cannot limit the initial Constable error, you cannot then limit or eliminate the enitre worst case scenario. I realize you are not advocating worst case scenarios intentionally but it is you who seems not to get it especially when you are convinced that even though you did your best to explain it, mulitple bright people of good intent - do not get it.

      IN THE scenario I outlined all they would have to say is 16 Rutherford dr (fictious example of course), I thought it said 61 and they make this argument later when they know your address and can easily figure out its mirror image Easy to buy right? No one said that collectively they cannot be wiley.
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        Aug 28 2012: Well, the problem in your scenario is that the same thing does happen under today's rules. The only difference is that the police would just get a slap on the wrist, and not be charged with a crime. And any criminal evidence located at the wrong address (if any) would not be allowed in any court.

        Jail time and fines would be in place to discourage intentional "accidental" mistakes.
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          Aug 28 2012: Accidental mistakes should be statistically rare, although, I wonder if you realize that police hiring techniques are designed to ensure that there are almost no really bright ones - they need run of the mills guys who will not question authority. The people need to be protected from misuse of power and the laws that constrain this are key.

          We all feel just as stongly about justice as you do especially in serious cases. We do not want a murderer set free any more than we want the wrong person executed or jailed. We all know it does happen though.