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THE MUSINGS OF A TRADITIONAL SOUTHERN DEMOCRAT

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Location: Douglas, Coffee Co., The Other Georgia, United States

Sid in his law office where he sits when meeting with clients. Observant eyes will notice the statuette of one of Sid's favorite Democrats.

Saturday, January 31, 2009

Praise the Lord! This rule has resulted in far more injustice than justice. -- U.S. Supreme Court Justices Step Closer to Repeal of Evidence Ruling

If we as attorneys prevail in what is known as a suppression hearing to get the court to suppress evidence, that is, rule it inadmissible, a guilty defendant will usually walk.

From The New York Times:

In 1983, a young lawyer in the Reagan White House was hard at work on what he called in a memorandum “the campaign to amend or abolish the exclusionary rule” — the principle that evidence obtained by police misconduct cannot be used against a defendant.

The Reagan administration’s attacks on the exclusionary rule — a barrage of speeches, opinion articles, litigation and proposed legislation — never gained much traction. But now that young lawyer, John G. Roberts Jr., is chief justice of the United States.

This month, Chief Justice Roberts, writing for the majority in Herring v. United States, a 5-to-4 decision, took a big step toward the goal he had discussed a quarter-century before. Taking aim at one of the towering legacies of the Warren Court, its landmark 1961 decision applying the exclusionary rule to the states, the chief justice’s majority opinion established for the first time that unlawful police conduct should not require the suppression of evidence if all that was involved was isolated carelessness. That was a significant step in itself. More important yet, it suggested that the exclusionary rule itself might be at risk.

1 Comments:

Blogger touche' said...

Should the criminal go free because the constabulary has erred? Justice Benjamin Cardozo asked this question in the well reasoned opinion that established the exclusionary rule. He reasoned that the only way to police the police was to not let them use any evidence they obtained outside the restraint on government power contained in the constitution. To allow its use, he concluded, would ultimately lead to a government that would ignore the right of the people to be secure in their person and effects as the constitution guaranteed. His reasoning is much more cogent today than it was then. Believeing that the end justifies the means, the United States, during the Second Bush administration ordered the torture of prisioners of war in violation of existing laws and treaties to gain information. Will the President, Vice President, Secretary of Defense and the Attorney General be prosecuted for their conduct? If they are not, does that not prove Cardozo's point?

10:33 PM  

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