Monday, July 10, 2006

Abuse of Power and Excluded Evidence

In the recent U.S. Supreme Court decision in Hudson v. Michigan, the court decided that evidence could be used as evidence, even though the police who entered a building did not provide adequate time for the inhabitants to come and open the door before the police forced their way in. This narrowing of the "exclusionary rule," which prevents unlawfully obtained evidence from being used in a criminal prosecution, has been widely criticized by proponents of civil liberties.

The Fourth Amendment to the U.S. Constitution confers this right:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Much 20th century jurisprudence notwithstanding, it is notable that the Constitution protects the rights of citizens against unreasonable searches and seizures, but it does not provide that the remedy for a violation of this right should be the exclusion of any evidence obtained. Indeed, whether evidence was obtained legitimately or not does not alter the nature of the evidence itself. Excluding such evidence often has the net effect of punishing those who were victimized by crimes which can not be prosecuted successfully without the ill gotten proof. Why is it that the remedy is to exclude convincing evidence? Is it not instead more just to look at the different option of holding liable those who were guilty of abusing power and violating constitutional rights?

For an interesting discussion of the background of the case law that created the exclusionary rule and made it applicable to the states, see Matthew Scully here.

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