Waiting for Fitzgerald

[Spanky]

Originally posted by Tyrone Slothrop
How have I contradicted myself? On this topic, I asked a single question, because I was curious what your answer would be. WTF?

I was referring to stuff in the past. Nothing current.

[Spanky]

Originally posted by SlaveNoMore
Leave Arnold alone. He was a true war hero. Had he and Gates not succeeded at Saratoga, the Fight for Independence would have met an early demise.

That he conspired with the enemy later on shouldn't tarnish his image.

Just ask John Kerry.

Excellent post. Great analogy.

[Tyrone Slothrop]

Originally posted by Secret_Agent_Man
However, my point was simply that I really do think that the exclusionary rule reduces the number of illegal searches and seizures, and thus is beneficial. There may be other ways to get to that result -- but I can't think of others that a Court can establish and enforce.

I think this is a key point. Because a court cannot order the sort of regime with financial penalties that might replace the exclusionary rule -- e.g., a rule preventing police departments from agreeing to assume damages assessed against individual officers -- the Exclusionary Rule would seem to be the only thing that a court can do to ensure that criminal defendants' rights are preserved.

[Tyrone Slothrop]

Originally posted by Spanky
I was referring to stuff in the past. Nothing current.

Do I contradict myself?
Very well then I contradict myself,
(I am large, I contain multitudes.)

Walt Whitman, "Song of Myself"

[Hank Chinaski]

Originally posted by Spanky
I was referring to stuff in the past. Nothing current.

Ty@50. how long should we give your former you? a minute?

[Shape Shifter]

[Shape Shifter]

:doh3:

[Spanky]

Originally posted by Tyrone Slothrop
I think this is a key point. Because a court cannot order the sort of regime with financial penalties that might replace the exclusionary rule -- e.g., a rule preventing police departments from agreeing to assume damages assessed against individual officers -- the Exclusionary Rule would seem to be the only thing that a court can do to ensure that criminal defendants' rights are preserved.

If the courts had stayed out of it and let the legislature deal with it we would have been much better off. The legislature should decide the penalties not the courts. But we will never be able to fix the problem because the Supreme Court decided that the exclusionary rule was a constitutional right. The British, with their common law right system, were lucky to not have judges divorced from reality.

[Oops -- meant to quote, not edit. I think I've restores Spanky's post to the original. Sorry. -- T.S.]

[Tyrone Slothrop]

Originally posted by Spanky
If the courts had stayed out of it and let the legislature deal with it we would have been much better off. The legislature should decide the penalties not the courts. But we will never be able to fix the problem because the Supreme Court decided that the exclusionary rule was a constitutional right. The British, with their common law right system, were lucky to not have judges divorced from reality.

The exclusionary rule is not a "constitutional right." The right is the right to be free of unreasonable searches and seizures. The exclusionary rule is one way of preserving this right. As a matter of policy, you may be right that, e.g., a system of financial penalties and/or incentives might, on the whole, provide a better mix of results. My point, however, is that if courts leave the question up to the legislature(s) by deferring to whatever system it/they adopt, you may find that legislatures don't wish to spend money to preserve those constitutional rights, and the rights are then effectively extinguished by legislative inaction. A constitutional right that depends on legislative action to be realized is not much of a constitutional right. Analogously, one could suggest that there is no right to compensation for takings except as a legislature sees fit to provide. Conservatives probably find it easier to imagine that the abstract promise of legislative action is not comforting when you put it in that context.

[Shape Shifter]

Originally posted by Tyrone Slothrop
The exclusionary rule is not a "constitutional right." The right is the right to be free of unreasonable searches and seizures. The exclusionary rule is one way of preserving this right. As a matter of policy, you may be right that, e.g., a system of financial penalties and/or incentives might, on the whole, provide a better mix of results. My point, however, is that if courts leave the question up to the legislature(s) by deferring to whatever system it/they adopt, you may find that legislatures don't wish to spend money to preserve those constitutional rights, and the rights are then effectively extinguished by legislative inaction. A constitutional right that depends on legislative action to be realized is not much of a constitutional right. Analogously, one could suggest that there is no right to compensation for takings except as a legislature sees fit to provide. Conservatives probably find it easier to imagine that the abstract promise of legislative action is not comforting when you put it in that context.

And actually, other remedies already exist. They're just not very effective, as this article points out:


"Alternatives to the Exclusionary Rule .--Theoretically, there are several alternatives to the exclusionary rule. An illegal search and seizure may be criminally actionable and officers undertaking one thus subject to prosecution, but the examples when officers are criminally prosecuted for overzealous law enforcement are extremely rare. 158 A policeman who makes an illegal search and seizure is subject to internal departmental discipline which may be backed up in the few jurisdictions which have adopted them by the oversight of and participation of police review boards, but again the examples of disciplinary actions are exceedingly rare. 159 Persons who have been illegally arrested or who have had their privacy invaded will usually have a tort action available under state statutory or common law.


Moreover, police officers acting under color of state law who violate a person's Fourth Amendment rights are subject to a suit for damages and other remedies 160 under a civil rights statute in federal courts. 161 While federal officers and others acting under color of federal law are not subject jurisdictionally to this statute, the Supreme Court has recently held that a right to damages for violation of Fourth Amendment rights arises by implication out of the guarantees secured and that this right is enforceable in federal courts. 162 While a damage remedy might be made more effectual, 163 a number of legal and practical problems stand in the way. 164 Police officers have available to them the usual common-law defenses, most important of which is the claim of good faith. 165 Federal officers are entitled to qualified immunity based on an objectively reasonable belief that a warrantless search later determined to violate the Fourth Amendment was supported by probable cause or exigent circumstances. 166 And on the practical side, persons subjected to illegal arrests and searches and seizures are often disreputable persons toward whom juries are unsympathetic, or they are indigent and unable to bring suit. The result, therefore, is that the Court has emphasized exclusion of unconstitutionally seized evidence in subsequent criminal trials as the only effective enforcement method. "

http://caselaw.lp.findlaw.com/data/c...ment04/06.html

[Penske_Account]

Originally posted by SlaveNoMore
Leave Arnold alone. He was a true war hero. Had he and Gates not succeeded at Saratoga, the Fight for Independence would have met an early demise.

That he conspired with the enemy later on shouldn't tarnish his image.

Just ask John Kerry.

[SlaveNoMore]

Penske_Account
2. She is land of fu. Dead to me.

How will you know what to have for dinner?

[Penske_Account]

Originally posted by SlaveNoMore
How will you know what to have for dinner?

I am meeting the Paigow at Bings. What do you recommend?

eta: more seriously this is a major dilemma! chinese? tex-mex? sushi? pasta? if so, what kind of sauce?!!?!? w/ salad?

[Sexual Harassment Panda]

Originally posted by Penske_Account

Good point. Nobody should have gone to Vietnam to try to find out if there were still POWs and MIAs alive there or anywhere else. What a traitorous act!

It should be obvious that Kerry can't control what pictures the Vietnamese choose to hang in their museums. Do you know if there are pictures of Reagan or Bush in the same museum?

[Spanky]

Originally posted by Tyrone Slothrop
The exclusionary rule is not a "constitutional right." The right is the right to be free of unreasonable searches and seizures. The exclusionary rule is one way of preserving this right. As a matter of policy, you may be right that, e.g., a system of financial penalties and/or incentives might, on the whole, provide a better mix of results. My point, however, is that if courts leave the question up to the legislature(s) by deferring to whatever system it/they adopt, you may find that legislatures don't wish to spend money to preserve those constitutional rights, and the rights are then effectively extinguished by legislative inaction. A constitutional right that depends on legislative action to be realized is not much of a constitutional right. Analogously, one could suggest that there is no right to compensation for takings except as a legislature sees fit to provide. Conservatives probably find it easier to imagine that the abstract promise of legislative action is not comforting when you put it in that context.

If it were not a constitutional right I think Legislators would have changed it long ago. In other words if the legislators had the power to overturn the courts decision on how to handle illegally seized evidence I think they would have done so. At least after the third Dirty Harry Movie.