Saturday, July 19, 2008

Professional pigs

The NYT has been doing a pretty long series called American Exception about unique aspects of the American law system. This month's article was about the exclusionary rule, a legal principle that since 1961 has automatically acquitted defendants whose prosecution rests on evidence obtained illegally, regardless of the magnitude of either the police violation or the defendant's crime. However, recent court cases have weakened the principle, and an upcoming Supreme Court case will reevaluate and clarify* the rule.

Scalia (along with Roberts) has already indicated that he thinks the rule is outdated, citing recourse through civil suits and "increasing professionalism" among police and "new emphasis on internal police discipline." Ironically enough, the comment was made in regards to a complaint that because the police did observe the knock-and-announce rule, the damning evidence found should excluded. Scalia brushes away concerns that with the exclusionary rule police won't wait before barging in, saying that "incentive is minimal" that this would happen, and that "ignoring knock-and-announce can realistically be expected to achieve nothing." Only, that's exactly what happens all the time, and it's what's happened even before 2006 when the Supreme Court struck down the exclusionary rule with regards to knock-and-announce violations in Hudson v. Michigan. And as for "increased professionalism," Radley Balko debunks that with his long-running "another isolated incident" watch.

Edit: Crime & Federalism brings up a point that I hadn't realized: the exclusionary rule, in practice, isn't as strong as the NYT article makes it out to be. According to a federal judge, a successful motion-to-suppress is "almost as rare as hen's teeth." All a police officer usually has to do is lie, and the motion will be denied.

* By which I mean arbitrarily legislate and regulate. I don't actually believe that these days the judicial branch makes objective decisions, and I think it's almost all political, even with regards to decisions I agree with. And though I'm not a big legal history buff, I have a feeling it's always been that way.

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