The Exclusionary Rule

The NY Times ran this article yesterday on what's known as the Exclusionary Rule. In1914 the Supreme Court ruled in Weeks v. United States that if law enforcement officials find evidence by breaking the law or violating your Constitutional rights, they can't use that evidence against you in a federal court. The Rule was then extended to the local and state level in Mapp v. Ohio (1961). While there's a good deal of nuance in the various opinions handed down by the Supreme Court, there is one important exception: if the police can prove that they would have uncovered the evidence in question if they hadn't broken the law or violated the Constitution, the evidence is admissible.

So, for example, if the police break into my home without a search warrant and find that I have a giant cocaine factory in my basement, they can't use the evidence they found in my house to convict me. If, however, the police can prove that they could have had a judge sign a search warrant and uncovered the evidence that way, i.e., without violating my rights, then the evidence is admissible, and I'm pretty much screwed.

The Times article clearly indicates that the Rule is controversial and that many people think it ought to be thrown out. In my not-so-humble opinion, that's just plain wrong: the Exclusionary Rule needs to be kept in place. Three important points:

1. The only evidence the Exclusionary Rule excludes is evidence that the police didn't obtain legally and can't even prove they could have obtained legally. I can't think of a single good reason why the police should be entitled to use evidence that they had no right to have found in the first place. The Exclusionary Rule just makes sure that the outcome of a case is the same as it would have been if everyone followed the rules. It's the same principle referees use in assigning penalties in football, or any other sport: the penalty is intended to take away any advantage the offending team got by not playing by the rules.

2. In that same vein, if the police broke the law but can prove that they could have gotten the evidence legally, they can use it. The same principle is at work here: by allowing the evidence to be used, the judge is making sure the outcome is again the same as it would have been if the police obeyed the law.

3. The major argument the Times emphasized in getting rid of the Exclusionary Rule has to do with the supposed social cost: "The criminal is to go free because the constable has blundered.” Unfortunately, that's not an accurate characterization of what happens: it's not as though the police have an air-tight case and because of some legal technicality the criminal gets off; the police wouldn't have had a good case to begin with if they hadn't violated the defendant's rights. The criminal doesn't go free because the constable blundered; the criminal goes free because there was no way to legally get the evidence needed to convict him or her.

One final example. Consider two cases:

Case 1: a 7-11 is robbed, and the police believe Joe is the culprit. The police believe the money Joe stole is in his house, but they don't have probable cause to get a search warrant. Since these are good, law-abiding police officers, they're forced to let Joe go and not charge him with burglary.

Case 2: a 7-11 is robbed, and the police believe George is the culprit. The police believe the money Joe stole is in his house, but they don't have probable cause to get a search warrant. Since these aren't particularly good police officers, they chose to break into his house anyway, knowing it's a gross violation of his rights. The police find the stolen money and charge George.

If we were to abolish the Exclusionary Rule, Joe would get off, but George would be convicted of burglary. Not that I don't like the idea of George being charged for something he's guilty of, but here's the problem: George is convicted because the police violated his rights.

Does anyone really believe that's not unjust?

Lots of Cases!

I've started doing a little reading of cases in preparation for law school (and, I admit, somewhat out of enjoyment of going back to my Philosophy of Law class and looking over the more interesting scenarios we covered). While I'm sure there will be much to hate about 3 years of law school, I think one consistent silver lining is that a good portion of what we'll read are opinions, meaning you get an interesting anecdote for most concepts you study. And in that vein, I thought I'd share an interesting case I just read, Regina v. Dudley and Stephens. Fair warning: this is a pretty creepy case.

The Case:
You can read the full background at that link I posted, but here's the basics: three men, Dudley, Stephens and and Brooks, along with a younger boy, Richard Parker, were sailing some kind of a boat, which was destroyed by a minor weather occurrence thousands of miles away from land. The four of them piled into a very small life raft with only two tinfuls of turnips and no fresh water. From July 7th to July 23rd of that year (1884), the four had almost nothing to drink or eat, and were near death. After some discussion between the three men, Dudley and Stephens decided that the boy, who was likely the most weakened of all four, would have to be killed in order to save the others. Brooks did not agree to the plan (which explains why he was not a co-defendant), and in the early morning of July 24th, Dudley held down the boy while Stephens stuck his penknife into the boy's jugular vein, killing him. On July 29th, the three men were found by another boat after subsisting on the boy's remains for nearly a week. After a long & involved legal process, Dudley and Stephens charged with first-degree murder and convicted.

Eventually the Queen's Bench, which is some kind of appellate court in England (possibly the highest court--I don't really know), heard the case and ruled that there was no excuse of necessity, that Dudley and Stephens were guilty of murder, and that they were therefore sentenced to death.

My Thoughts:
I think the court was clearly right in ruling that the excuse of necessity doesn't apply here, because of one very important fact of the case: the three men never consulted with Parker and decided, without his input, that he would be the one to die. In similar cases (yes, this has happened more than once) where the survivors drew lots to determine who should be killed, there was a legitimate excuse, which was recognized by courts. But for a person to decide to save himself by killing the weakest person, and to do it without even talking to the victim, is clearly murder.

But there's still a question of whether, in cases where a person must kill in order to save himself, the individual ought to be punished. Especially difficult in this case was the fact that all four men were slowly starving death over several weeks, with no realistic hope of survival except to commit a terrible crime; I think it would be hard to seriously condemn someone who made the wrong choice.

The court, by the way, agreed that a lesser punishment was appropriate: it wrote, "...if in any case the law appears to be too severe on individuals, to leave it to the Sovereign to exercise that prerogative of mercy which the Constitution has intrusted to the hands fittest to dispense it."

Dudley & Stephens were sentenced to 6 months imprisonment and then released.