Relay-Version: version B 2.10 5/3/83; site utzoo.UUCP Posting-Version: version B 2.10 5/3/83; site utcsrgv.UUCP Path: utzoo!utcsrgv!dave From: dave@utcsrgv.UUCP (Dave Sherman) Newsgroups: net.legal Subject: Re: Legal Loopholes -- exclusionary rule Message-ID: <4934@utcsrgv.UUCP> Date: Tue, 17-Jul-84 13:51:16 EDT Article-I.D.: utcsrgv.4934 Posted: Tue Jul 17 13:51:16 1984 Date-Received: Tue, 17-Jul-84 14:19:37 EDT References: <426@teldata.UUCP> <1077@elsie.UUCP> <1203@sdcrdcf.UUCP> Reply-To: dave@utcsrgv.UUCP (& Sherman) Organization: The Law Society of Upper Canada, Toronto Lines: 162 I seem to recall that it was a long discussion about "legal loopholes" and the exclusionary rule which led to the formation of net.legal, about 840 articles ago. So rather than say it all over again, why don't I just dig into my files and see what's cluttering up the disk... ======================================================================= From: lab@qubix.UUCP (Larry Bickford) Newsgroups: net.followup Subject: American Judicial Headache Message-ID: <430@qubix.UUCP> Date: Wed, 17-Aug-83 13:59:27 EDT One of the headaches of the American (can't speak for Canadian) judicial system is that it has turned from a search for truth into an adversary system. Whether the defendant is guilty or not means nothing any more; it now seems that if anyone on the "people's" side does the slightest thing wrong, the guilty go free. It's an attitude that's being propagated by the law schools. The Fourth Amendment states that the people have a right to be secure in their property. It does NOT state that the defendant shall go free if his rights are violated. Unfortunately, that has been the action. A better one would be to convict the guilty and also prosecute those who violated his rights. (I have heard this is the case in the UK. Would appreciate correction/information.) Truth, Justice, and the American Way are concepts now long-gone. They don't have to be, if we would get our pride out of the way. Larry Bickford, {ihnp4,ucbvax,decvax}!decwrl!qubix!lab, {ittvax,amd70}!qubix!lab From: dave@utcsrgv.UUCP (Dave Sherman) Newsgroups: net.followup Subject: Re: American Judicial Headache Message-ID: <1995@utcsrgv.UUCP> Date: Thu, 18-Aug-83 13:44:48 EDT References: <430@qubix.UUCP> It's important to understand the principle involved in all the "let the criminal go free because his rights were violated" cases. The Canadian system is not as bad as the American, but the same conflict comes up. There's a fundamental incompatibility between the goal of convicting criminals and the goal of restraining the police from becoming too enthusiastic. Unfortunately, the only effective was to stop the police is to let the criminal go, and thus make the overzealousness worthless. Consider the "Wray" case, for example. Wray was picked up on suspicion of murder, and the cops put him through a rather intensive "questioning session". By the end of it, he was a nervous wreck, and confessed to the killing. Naturally, the confession obtained under those circumstances was inadmissible was evidence. (The legal test is whether the confession was given "under fear of prejudice or hope of advantage".) However, in the course of his confession Wray told the police where he had thrown the gun (into a river). They went and found it, and used the gun as evidence to convict him. The Supreme Court of Canada held by a narrow margin (5-4) that the gun was admissible as evidence, and the conviction stood. "Good", I hear you cry, "the guy committed murder. He has to pay for it". That's what I thought too, at first. But now think about it. We've just told the police that they can torture suspects as much as they want, as long as they get some "hard" evidence out of it, haven't we? Is this desirable? I don't have the answers. There are two conflicting interests, and much of the answer will depend on which one you give priority to. Please understand the problem before criticizing the system. Personally I think the U.S. courts have gone too far over to the civil-rights side. But it's not an easy line to draw. Dave Sherman The Law Society of Upper Canada (utcsrgv!lsuc!dave) -- {allegra,cornell,floyd,ihnp4,linus,utzoo,uw-beaver,watmath}!utcsrgv!dave From dave Thu Aug 18 23:04:42 1983 To: perelgut Subject: Re: American Judicial Headache Your solution might be possible; I've thought about it myself. However, one problem is that punishing the cop, which itself would have to be a criminal procedure, would (a) not be carried out very enthusiastically by anybody in particular, and (b) would require a criminal standard of proof (beyond any reaonable doubt). Currently you *don't* have to prove more than on the balance of probabilities that the police were "overzealous". From perelgut Thu Aug 18 23:22:35 1983 To: dave Subject: Re: American Judicial Headache Simple. All cops are guilty UNLESS they hold all interrogations in the interrogation room with counsel present and with the goings on being video-recorded. The criminal procedure could be handled by an ombudsman position working closely with the offended criminal's lawyers. As for the standard of proof beyond reasonable doubt, it could be relaxed except in the recording room. And you could seal the recorder to guarantee it was secure beyond reasonable doubt. And assume guilt in the presence of any tampering. Personally, I think that, when any guilty person is freed on the basis of an irrelevant or barely relevant, the lawyer should have to serve the sentence. :-) Seriously, I don't approve of jails. I'd rather see penalties requiring full restitution, work camps to get the money where it otherwise wouldn't be, and capital punishment as a deterrent in captital crimes, with no appeal after a guilty beyond all reasonable doubt verdict. And I'd like to see the legal system revamped to reflect this. And I'd like to meet Tinkerbell. I guess these are all equally likely. From dave Fri Aug 19 09:46:33 1983 To: perelgut Subject: Re: American Judicial Headache Your "all cops are guilty unless...", first of all, seriously impairs questioning of people who may not even be suspects. And what crimes would you apply this system to? Murder, presumably. What about theft under $200 (usually shoplifting), or being found in a common bawdy house? Anyway, assuming that a cop is guilty unless proven otherwise, and combining that with criminal penalties against the cop, goes *totally* against our system. A lot of cops would quit. "No appeal after a guilty beyond a reasonable doubt verdict"? There is currently no appeal on questions of fact anyway. The only appeal is on questions of law. If the judge allowed in evidence which was properly inadmissible, and the jury convicted on the basis of that evidence, you sure as hell want an appeal. From: mason@utcsrgv.UUCP (Dave Mason) Newsgroups: net.followup Subject: Re: American Judicial Headache Message-ID: <2030@utcsrgv.UUCP> Date: Sat, 20-Aug-83 00:53:52 EDT Perhaps a reasonable approach to overzealous police is to have police commissions (or whatever) that do something serious when personal rights are infringed in the process of conducting an investigation..something like firing all with foreknowledge, instead of 2 weeks suspension with pay during the investigation and 2 week suspension without pay as punishment. I personally think the Canadian system seems reasonable, because few people have their rights seriously abused, BUT this seems to depend almost solely on the good intentions of the police (usually good, but there are some glaring examples of peoples rights being totally trampled with very little being done about it). The law has recently changed due to the Charter of Rights and there was concern that it would make our system too much like the American one, but there seems to be little indication of much change so far (14 months). ======================================================================= This archive brought to you as a public service by... -- {allegra,cornell,decvax,ihnp4,linus,utzoo}!utcsrgv!dave or David_Sherman%Wayne-MTS%UMich-MTS.Mailnet@MIT-Multics.ARPA