Monday, August 04, 2008

Illegal Searches and Admissible Evidence

According to U.S. law (if I understand correctly), evidence obtained in the course of an illegal police search is inadmissible in court. Presumably the purpose of this rule is to discourage the police from conducting illegal searches. But aren't there better ways to do this? Consider my old principle of moral sacrifice: we should set things up so that, in extraordinary cases, public servants can take extralegal measures and personally suffer the consequences. ("If an end is worth torturing someone for, then it's worth going to prison for.")

This principle suggests that we should allow illegally obtained evidence in court, and instead punish the police officers who were personally responsible for obtaining it illegally. If the punishment is suitably severe (e.g. losing their jobs), this will suffice to deter routine police malpractice. But - importantly - it leaves open the possibility of achieving justice by unconventional means in those rare cases where the stakes are so high that an officer is willing to sacrifice his own career to see justice done.

Am I missing something?


  1. The rule is there not merely to discourage illegal searches; it is there to protect the rights of those who are under investigation, by making it useless to engage in any form of inquiry that violates those rights. Thus it provides a double protection: obtaining evidence illegally is useless, and you risk your career by doing it.

    Your argument, I think, seems to assume that, in fact, achieving justice can be guaranteed. But consider instead the case of an innocent person who is under suspicion because all the available evidence points to him. Any protection your suggestion can provide him is post hoc -- i.e., the only protection you give him is that any police who violate his rights will be investigated. But what is needed is something in place that provides him protection from the very beginning.

  2. Brandon, if "all the available evidence points to him", then that's just horrendously bad luck. Following the evidence is the best a legal system can do, and on rare occasions that will lead to mistakes being made. (At least it is more rare than it would be under any alternative system.) But what difference does it make whether the misleading evidence is obtained legally or illegally?

    If you think it's more important to protect the innocent than to convict the guilty, presumably the solution is to raise the standards of proof required to secure conviction. ("Beyond a reasonable doubt", and all that.) I don't see how excluding some available evidence -- however illicitly obtained -- could be expected to lead to better outcomes, whatever your metric.

    Perhaps you mean to suggest that the 'rights' in question are absolute and inviolable, such that officers should never conduct illegal searches no matter the stakes. But that doesn't strike me as remotely plausible. The 'right' merely has pro tanto force, so it is appropriately safeguarded by discouraging its violation, rather than making such extra-legal measures completely useless no matter the countervailing reasons.

  3. No, the best a legal system can do is to follow the evidence in such a way as to provide at least some protection to the rights of the people involved, even if they have bad luck. By allowing illegally obtained evidence you are eliminating one form of such protection and replacing it with nothing. By refusing to allow illegally obtained evidence in this or that case, one provides a general before-the-fact protection for all cases: a better outcome, I would say, whatever your metric.

    Simply raising the standard of conviction won't suffice as a substitute; for one thing, the standards are already for the most part reasonably high. You are also again trying to substitute an after-the-fact remedy (if your rights are violated, you'll have some limited remedy) for a before-the-fact protection (it is useless for the police to try to violate your rights in the first place).

    Part of the rationale for the rule is that the police need checks and balances, too; people need to be protected by removing unnecessary temptation to abuse to power; and that legal justice presupposes rights and therefore cannot genuinely exist in an environment that accepts their violation. In removing the protection you weaken the ability of the legal system to fulfill all of these, and I still don't see that you've suggested anything that would even remotely compensate for the lost.

  4. If police officers will be personally punished for illegally obtaining evidence, then there isn't any "unnecessary temptation" for them to abuse their power. The only difference between the current situation and my alternative proposal, so far as I can tell, is that mine opens the possibility of police officers sacrificing their own interests for the sake of securing a conviction.

    Note: (1) That's a pretty good before-the-fact "protection", I'd say. It ensures that the right will almost never be violated, not just that you have "some limited remedy" in case of violation.

    (2) This can be expected to lead to better outcomes. Policemen aren't likely to sacrifice themselves like this, but on the extraordinarily rare occasion when they are willing, this is almost certainly because justice so strongly demands it.

    Now, it's true that the protection against illegal searches is very slightly weakened on my proposal. Slightly more illegal searches will take place. You call this a "loss". I call it a good thing. My proposal is tailored so that the additional searches are precisely the ones that should take place. They are the ones that are most likely to advance the cause of justice.

    "By refusing to allow illegally obtained evidence in this or that case, one provides a general before-the-fact protection for all cases: a better outcome, I would say, whatever your metric."

    You must be kidding. Making everyone immune to prosecution would provide even better "general before-the-fact protection". That doesn't make it remotely preferable to the current system.

    Obviously we need to balance the good of protecting the innocent against the good of convicting the guilty. My proposal does that. Your response does not seem to.

  5. This post brings back memories. I did parliamentary debate in college, and I used to introduce this resolution all of the time. As you probably know, most other countries don’t have the exclusionary rule. And in fact, the U.S. only adopted it at the federal level at the beginning this century, and only applied it to the states in the sixties. Anyhow, yeah, it’s kind of an unusual idea, and I think a lot of people share your frustration with it. Here’s what I’d say in its defense, though:

    1) Any system that tried to protect the right against unreasonable search and seizure by punishing police would either be a bureaucratic nightmare, or else wouldn’t do a very good job protecting the right. Imagine having to punish police for every illegal “stop and frisk” search, or even enough of them to deter the practice – I just think that’s unmanageable. Also, I don’t know who you think should mete out punishments for illegal searches – the courts? a police disciplinary body? – but there would be all sorts of institutional pressures not to punish officers. And what’s going to happen if officers mess up and aren’t punished? Who’s going to make the courts or internal affairs or whoever go after cops who conduct illegal searches? I can’t really imagine much of a public outcry to punish cops for gathering evidence that puts criminals in jail. Final subpoint – if what you’re concerned about is giving police officers personal incentives not to violate people’s rights, the exclusionary rule actually helps in this regard. Look, it’s a lot easier, as a matter of institutional politics, to demote or fire an officer for gathering evidence in a way that rendered it unusable, and allowed a criminal to go free. It’s a lot harder to do the same to an officer for gathering admissible evidence that leads to a conviction.

    2) The exclusionary rule leads to more cooperation between prosecution and law enforcement, which is a good thing. Think of it this way – if I’m a DA under the current system, I’ve got an incentive to make sure the police do searches by the book. Otherwise, I’m out of evidence. But if I’m a DA under your system, I get the evidence whether the search is book the book or not, and unless I’m somehow party to the search – which, admittedly, might sometimes be the case – I won’t personally take the fall if it’s illegal.

    3) This last point is a little more philosophical: I think it’s plausible that rectification for rights violations should involve returning the victim to the status quo ante. This is what happens in tort law, for example. If I negligently break your nose, I have to pay you enough so that you’re as well off now as you were before the accident happened. So what if the right in question is the right against unreasonable searches? Well, permanently excluding any evidence obtained isn’t exactly the status quo ante. But it’s a lot closer to it than allowing the ill-gotten evidence to be used in court, which might lead to a conviction. Whether you think this is a plausible argument depends, I suspect, on how you view the role of the state in protecting people’s 4th amendment rights. If you think the role of the state is just to deter violations of these rights, then this last point won’t have much truck with you. If you think the role of the state is to “make the victim whole again” by returning him to where he was before the violation happened, then you should see it as a point in favor of the exclusionary rule that it does this.

  6. Thanks Andrew, that's helpful.

    Re: (1), I had wondered whether part of the motivation might be that illegal searches are so routine that it would be difficult to deter policemen before the fact (rather than simply nullifying their effect as the exclusionary rule does). I don't know enough about the details. But in theory I would've thought this should only be a problem if one can't always tell in advance whether a particular search is legally valid. Otherwise, even if the illegality is widespread today, changing the incentives by introducing and enforcing punishments for violations should serve to end the practice overnight. No? That does depend upon reliable enforcement though; if this is impracticable in our current cultural context, as you suggest, then that kills the idea.

    re: (3), I'm more of a consequentialist about such things. We should have such rules (or 'rights') as would tend to promote the greater good, and similarly for our rules about what to do in case of rights violations. In some cases this will recommend rectification "returning the victim to the status quo ante". But not, I think, in this case.

  7. As a historical note, the exclusionary rule exists because the U.S Supreme Court under Warren wanted to impose tight restraints on evidence collection while elected officials did not. Judges can exclude evidence, but they are not prosecutors and cannot collect evidence or initiate proceedings against officers, so they used the only means available to them.

    Enforcement against police may be much easier now with the development of 'lifelogging' and other monitoring technologies. Some states tape interrogations (Obama supported this in Illinois, I believe), video/audio recorders can be worn by police officers and installed in cars, etc. If records are continually transmitted to 3rd party storage that can be accessed by the public, then police abuses become very difficult indeed. However, I expect that this 'Transparent Society' (at least for police) would be attacked for privacy concerns and claims that this would telegraph police plans (the 3rd party repository could have a 24 hour delay, although that introduces opportunities for corruption and political interference) and movements. And, of course, in many places authorities are too attached to police corruption and illegal activities to countenance the reduction in their discretion.

  8. Richard,

    You say, "If police officers will be personally punished for illegally obtaining evidence, then there isn't any "unnecessary temptation" for them to abuse their power."

    However, this seems to be straightforwardly false. People abuse their power when they will be personally punished for it all the time; they do so under conditions of vendetta, for instance, or out of malice, or when they are certain (on whatever basis, good or bad, right or wrong) that they are right. But that's precisely the sort of temptation one would be trying to exclude with the rule: the rule puts up a wall against this sort of thing by making it so that it would do no good anyway.

    With regard to your number (2), policeman aren't the judges of what is just (except in the limited sense that we all are) so it shouldn't be in their hands at all to decide the matter.

    You call an increase in illegal searches a good thing, despite the fact that (1) this weakens the credibility of the police and the legal system by increase the cases where the police ignore the law; (2) this increases the chances of innocents being harmed by the police; (3) this increases the number of cases in which the rights of people are violated by people working for an institution that is supposed to assist in protecting rights. And this is all because, in a very small handful of cases, you could get the bad guy by failing to obey the law. On the same lines we could justify vigilante justice. You can have an entirely coherent and workable legal system that doesn't have the exclusionary rule, or that allows conditions for vigilante justice; but it makes no sense to justify such a system (relative to one that has the exclusionary rule or forbids vigilante justice) on the basis of a small increase in criminals caught, without regard for how this affects anything else.

    I'm afraid I don't understand the criticism when you say:

    You must be kidding. Making everyone immune to prosecution would provide even better "general before-the-fact protection". That doesn't make it remotely preferable to the current system.

    Because, read plainly, this is so clearly false that I don't know what to make of it. Immunity to prosecution doesn't grant any general before-the-fact protection from violation of rights; it just eliminates our ability to provide any remedy. We need a system that (1) provides before-the-fact protection from violation of rights; (2) preserves rights that are reasonable and for the common good; and (3) provides after-the-fact remedies for rights that have been violated. General immunity from prosecution would fail miserably all three of these things.

  9. Brandon, I thought we were talking about "protection" with regard to the right not to be subject to illegal searches. If we're talking about the protection of all rights, then it simply isn't true that a more efficient legal system (as I claim my proposal would provide) does nothing to "even remotely compensate for the lost" immunity to illegal search. It better protects us against all manner of rights violations, by doing a better job of putting violent perpetrators safely away in jail.

    Perhaps we simply disagree about the empirical question of what the precise consequences of my proposal would be, i.e. whether policemen would tend to sacrifice themselves more often for just or unjust ends.

    But I also think that you're wrong to say that it "weakens the credibility of the police and the legal system by increase the cases where the police ignore the law", because I'm suggesting that the police accept full personal responsibility and subsequent punishment. (Cf. Civil Disobedience.) It's not as though they're really ignoring the law, breaking it willy-nilly as though it weren't even there. In any case, if this still bothers you, we could always rewrite the law so it explicitly permitted unconventional searches if those conducting it personally pay the price.

    Essentially, my point is that there shouldn't be any unconditional right against being searched without a warrant. There should be a strong presumption against it, that's all. But if a person is so sure that a warrantless search would best advance the cause of justice -- so sure that they're willing to sacrifice their own skin to this end -- then I don't see that any real rights are violated by their doing so. We are well secured against being searched willy-nilly, and that's all we need here.

    "it makes no sense to justify such a system (relative to one that has the exclusionary rule or forbids vigilante justice) on the basis of a small increase in criminals caught, without regard for how this affects anything else."

    Indeed, the person you imagine yourself talking to sounds like a right fool, but he isn't me. Look back over the conversation. I was arguing that the deterrence effect would ensure minimal negative consequences, so I was quite plainly concerned with the broader consequences and not only the potential benefits. My claim all along has been that the benefits outweigh the costs. But again, this is an empirical dispute.

  10. Richard,

    Fair enough on the scope of the protection; my focus hasn't been on protection from violation of all rights protection from violation of rights relevant to a particular process or institution. For instance, one wants one's police to be related to the legal system in such a way as to protect people from having their rights unnecessarily violated by the police. (Also, I don't know how it is in NZ, but violation of rights by the police is a massively important issue in the US, and is likely to continue to be. I'm inclined to think that this is part of the real root of the disagreement here. There is no One True Supremely Rational Justice System; there are just lots of different kinds of rational justice systems depending on the issues that are seen as particularly important. In the US, at least in principle, the protection of the innocent is usually regarded as having a massively greater priority than punishment of the guilty; protection of the people from the police is usually regarded as an important part of the protection of minority rights; etc. And these all have an ultimate effect on evaluation.)

    However, I don't think we are merely disagreeing on an empirical issue. As I noted above, your justification for preferring a system that would lack the exclusionary rule would seem to apply equally to a system allowing vigilante justice (perhaps of a restricted form); and because of that, it seems vulnerable to precisely the same sorts of worries that would plague a similar argument for allowing victims under certain circumstances to avenge themselves. Now, no doubt you could have a system involving vigilantism that would be quite workable and coherent, and even have on-balance good consequences. But given that that is not our system, most of us would reject even a good chance for a very good such vigilante system precisely because of the problems of vigilante systems in general. Even if we could say benefits would outweigh the costs, we cannot decide on overbalancing benefits alone; we build justice systems (or any system of government) not merely to optimize actual effectiveness but also to minimize risks. Vigilantism, even operating properly, carries with it too much risk of not operating properly. Similarly, given a system that already holds the exclusionary rule, nothing you have said would be a sufficient reason to justify a change from that system to a non-exclusionary system, because all you are focusing on is on the balance of benefits outweighing costs, to the detriment of the balance of security outweighing danger. This is why I keep focusing on the fact that you haven't provided anything that adequately compensates for what is lost, and have suggested that you are focusing too exclusively on the small benefit of increasing criminals without regard for anything else. The deterrence effect you suggested, for instance, is already built into the system, albeit in a form slightly different from the one you've suggested, so in suggesting it you aren't adding anything major, just replacing the built-in deterrence mechanisms of the exclusionary system with a stand-alone mechanism. That eliminates the loss of deterrence, assuming that the stand-alone deterrent is adequate, but that doesn't compensate at all for the loss of the benefits of the exclusionary system itself, which has been justified only by the benefits of capturing more criminals. I'm not saying that you yourself ignore negative consequences; I'm saying that your justification of the non-exclusionary system over the exclusionary system effectively ignores them. The two are not the same -- in one case, we are only considering what the non-exclusionary system requires, so we minimize negative consequences that might be involved in this presupposed system; whereas in the other we are considering not merely costs and benefits within the system, but also the costs and benefits of the systems themselves (which has to consider all their potential costs and benefits) and the costs and benefits of changing from one to another. It's possible that an inquiry into this might identify some form of non-exclusionary system as real, attainable progress on the exclusionary system; that would be a justification of the non-exclusionary over the exclusionary. But I think that is the minimum that is required for a justification of one over the other, and clearly you don't. That's where I think the real disagreement lies.

  11. Also consider the separation of powers: the exclusion of evidence is a judicial matter. The police can and often do collect all the information they wish; but the 4th Amendment states that no such evidence is admissible for an investigation, unless a court has given prior approval (i.e. a warrant; this also includes a post-facto warrant by a FISA court in the interest of national security).

    Bluntly put, your initial presumption (discouragement) is incorrect; the 4th Amendment is an unequivocal rejection of illegal search and seizure as inadequate evidence.

  12. Now that we've entered the third world order they don't need warrant or probable cause anymore. Stuff like this happens every day and it will only get worse.


Visitors: check my comments policy first.
Non-Blogger users: If the comment form isn't working for you, email me your comment and I can post it on your behalf. (If your comment is too long, first try breaking it into two parts.)