This is a good step forward, but until we (the citizens) are able to say that LEOs are no longer using parallel construction[0], this is a lot less helpful than it could be. This just means LEOs have to work a bit harder to mask their illegal activities.
For example, say you're talking to your friend who sells weed and drive over to pick it up. The cops know you're buying drugs, so they pull you over for rolling through a stop sign, search your car, and "stumble" upon the weed. There is no way to prove they used a Stringray to get this information in the first place. Extrapolate this to other activities.
It's always better to use non-illegal activities when constructing examples. After all, why is it a bad thing that police are more efficient at catching criminals (I'm a strong supporter of legalization btw, but recognize that as long as it's illegal, the police need to do their jobs).
So whys is parallel construction a bad thing? Here's a different example. The FBI uses machine learning to develop models for predicting whether an individual is involved in terrorist activities. You are an innocent civilian who just so happens to a) be mulsim b) be an immigrant c) have recently visited a suspected country and d) work in agriculture and had to buy a lot of fertilizer recently. The FBI's system has labeled you a thread and that info was shared with the local authorities.
At midnight on a Tuesday, your home is raided based on this info. The local police use the fertilizer purchase as the reason. The rest came from the FBI. It's a no-knock raid. A family member is injured or killed in the process. You end up in jail for several days during the interrogation. Turns out you are a closet homosexual. Various other things surface. You go to trail. You're innocent. Much of the evidence is fabricated or spurious, so it's thrown out. You get found not guilty.
Your life is ruined. You are a disgrace to your religion. Your wife has divorced you. Your child has a permanent disability. You've lost your job. All because due process wasn't followed.
Not merely because due process wasn't followed, regular Joe Citizen passively supports it by having no problem with this outcome in any meaningful way. There are no political consequences.
This is a country where a significant minority have elected a presidential candidate who activity argues against due process, using the argument that because terrorists don't follow due process neither should we. And that is an increasingly popular sentiment, that somehow following the law and ethics is liberal bullcrap, and that selective application of due process as a kind of loyalty test and reward is patriotic and heroic.
>It's always better to use non-illegal activities when constructing examples. After all, why is it a bad thing that police are more efficient at catching criminals
Because the police's job is not to "catch criminals", it is to "catch criminals within the boundaries of the law/constitution".
It's actually to "serve and protect" not "catch criminals." If that's one of the ways they serve the community, fine. But it's a far cry from where we are today. I don't feel served or protected by police at all - and I'm white.
Anecdotally I'm sure there's plenty of examples out there, but in my personal experience, interactions with police are tense, adversarial, and scary, and that's if you haven't done anything illegal. Police should be jovial and friendly with the public they are supposed to protect. I see no evidence of that where I live.
"She argued that the order gave her a "property interest" within the meaning of the 14th Amendment's due process guarantee, which prohibits the deprivation of property without due process."
It was shaky legal ground to begin with, with clear precedent against the argument.
While a restraining order may not compel police to act in a certain fashion on demand, that has nothing to do with the general reason police exist to begin with, and the way they interact with the public. In a true government "of the people" the police exist to protect those people.
You're still missing it. The police's job is to enforce the laws passed by Congress or local governments. Those laws in theory are to protect the public or their interests. In reality, there are often bribes (eg big pharma or oil), politics (gay marriage), or just evil (slavery). Enforcing these laws harms the many for the selfish gain/purposes of a few. They'll enforce them anyway.
Later on, someone tries go push against that leaning on the theory that they're responsible for our safety. Supreme Court gets extra clear that they're not. That's while they continue to let laws from bribes stand. Little room for debate now. Also, anyone pushed into confessions using cops and prosecutor's legal right to lie about the evidence already knows system isnt about protecting people. That shit wouldnt exist if it was.
So no, they're neither intended to nor required to "serve and protect." They're instead enforcers of arbitrary laws that can protect or harm individual citizens. From there, individual departments or prosecutors might have policies (as some do) to treat community with respect while focusing activities on reducing actual harms. However, that's entirely voluntary.
I think the OP's point was that you can argue against parallel construction even more effectively if you can demonstrate a case where the hidden side of the parallel construction isn't even illegal can already be problematic, you have a stronger argument against it.
After all, why is it a bad thing that police are more efficient at catching criminals
Generalizing a bit, the people most likely to make that particular argument are in my experience also the people most likely to respond to "three felonies a day" type arguments. I don't know why, but the strongest law-and-order folks tend to also be the strongest anti-"big government" folks.
So framing parallel construction as a method to enable selective prosecution of anyone (see: "three felonies a day", given unlimited warrantless surveillance, you can Richelieu anybody you like) at any time -- with all the threat that implies of being used to expand government power without limit and intimidate, silence or outright imprison detractors -- is probably a more successful approach.
My reason for citing something illegal is this is 1) this is a case where it is more likely to be used, and 2) it's still wrong here, so in cases that are more grey, it should be definitely seen as wrong.
However, your example doesn't really require a Stingray. It shows that pre-crime modeling and no-knock warrants have negative outcomes (to which I agree).
But I fail to see why due process wasn't followed... Judge should have sanctioned raid in that case anyway, right (or how does it work)? And there's always some arbitrary line where someone decides 'that's enough for a raid', we just have to hope that whoever it is, he/she has a good common sense. In your example, if that person wasn't working in agriculture (and still suddenly bought large amounts of fertilizer etc.) And was seen with radicals/known offenders. And was known to distribute radical literature. In that case do you think raid was justified? Because that's really the way to stop terrorist acts, all that things they do for security at airports are useless, you can't do anything if there's determined crazy person with bomb on the streets, it's too late. That FBI's machine learning algorithm is just have to be good, to be used. FBI should be force by fear of bad media in case of wrong outcome to tune it for no false positives.
What does that example have to do with parallel construction? They could easily get a warrant in that situation, ending in a raid with the same result.
A comment does not end simply because you've stopped reading it.
> Your life is ruined. You are a disgrace to your religion. Your wife has divorced you. Your child has a permanent disability. You've lost your job. All because due process wasn't followed.
The practice of parallel construction should be illegal, with severe penalties for its use, it makes a mockery of our entire system of government. The only reason it's allowed is because the entire bill of rights is today viewed as a "nice to have" rather than the foundation of our republic.
"I saw residue that I believed to be an illegal substance."
"Suspect was in a neighborhood known for illegal activity."
"A drug dog signaled on the vehicle."
"While performing a safety check on one of the occupants I found a weapon, leading me to believe there may be more weapons in the vehicle."
Please, please, please, can we at least all get on the same page when it comes to what constraints there actually are on police in the real world. We can't possibly have a serious conversation about policing so long as there's naive comments like this in the discussion, that make sense only in a fantasy world that we have ample evidence does not exist, at least not in the US.
Because some people believe that the ends justify the means. They would rather see innocent people punished than guilty ones go free. They especially don't like seeing guilty people go free on "technicalities."
Furthermore, many people are prejudiced or bigoted. They see people different from themselves (which in today's world generally means people with dark skin or people who wear non-Western clothing) doing bad things, and they conclude that most or all people who are different from themselves do bad things. On that worldview, due process is an impediment to seeing justice done.
That mindset, together with democracy, leads to abuse.
There's also this false narrative - the police search TONS of people without finding drugs or anything actionable. They happen to also search people who have drugs. But the only people who go in front of judges are (for the most part) criminals. So judges (and the press) only see the actual positives, not the 19 false positives for each actual positive.
Yes. And it's even worse than that: prosecutorial misconduct leads to a lot of innocent people pleading guilty to crimes they did not actually commit in order to avoid the risk of being unjustly convicted of a more serious crime that they also did not commit. But in the eyes of the system, again, justice has been done because the person is, by their own (coerced) admission, guilty.
"The suspect was acting suspicious, and the vehicle smelled like marijuana."
In Canada, some recent trials have dramatically increased the threshold for what constitutes reasonable grounds for a search [0], but from what I understand, the rules are different in the US (e.g. that a drug dog can sniff the exterior of a vehicle, and in many circumstances drugs have been trained to alert on command from the handler).
If you're interested in how law enforcement (in the US) has really evolved toward this (including so-called "consent" searches where the courts have ruled things like stop-and-frisk are legal because people are hypothetically allowed to decline to be searched), I recommend reading "The New Jim Crow" - it's excellent, if depressing, reading.
I'm moving to the opinion that whenever K-9 or human cop noses are used to generate probable cause, three mylar balloons must be filled, using a pump, with the air alleged to contain the illegal odor, and sealed with chain-of-evidence stickers. One balloon is later fed to an "electronic nose" machine, in a double-blind fashion, to create an arguably impartial report. Then one is for the use of the prosecutor, and one is for the use of the defense.
If the balloon does not contain marijuana odor molecules, all evidence collected in the subsequent search is inadmissible. One cannot cross-examine a dog, and human cops are no more trustworthy than any other witness that has a personal stake in the outcome of the case. What people can see and hear can be recorded by cameras and microphones, and examined after the fact by both sides in the adversarial process. Allowing smell, touch, and taste "evidence" for determination of probable cause seems to be an end-run around due process.
"I smell weed" or "the dog alerted [because I signaled it to alert]" should not be a substitute for judicial oversight of police activity.
I was once told that if you're ever pulled over by a cop in my home town that the only thing you could do was to comply with everything, including warrantless searches even if innocent. That, if nothing illegal was found as a reason to get pulled over, a light would be busted. On top of that, it was argued that since false charges led to enough jailtime throughout the years that compliance was the only choice. At the time, it was stupidly hard to believe that it was good advice, especially after watching the "Don't Talk to Police" video [1].
About a year later, I saw [2] from the Chicago Tribune from my hometown which pretty much completely confirmed what I was told. I apologized to him after reading that. The conversation seriously, seriously raised doubt towards the "don't talk to the police" advice, since it minimizes a very, very turbulent legal landscape.
> This is a good step forward, but until we (the citizens) are able to say that LEOs are no longer using parallel construction[0], this is a lot less helpful than it could be. This just means LEOs have to work a bit harder to mask their illegal activities.
But that's good. Don't let perfect be the enemy of better. Before this ruling, they didn't even have to go that far. While we assume that LEOs are good at parallel construction, standard human laziness applies and something will trip them up a lot of the time.
If a three-letter-agency is out to get YOU, specifically, you are hosed no matter what. However, that is a different problem from an LEO being able to vacuum up a ton of stuff and sift through it cheaply simply because they need a couple more collars to make their drug arrest quota.
If the NSA is out to get you, they will simply fabricate the evidence, no parallel construction needed.
I had a very long debate with someone on this about its MitM uses and it confuses the crap out of me when people say it's not used for that. For some reason many people seem to think that, even though there's enough information for research, that it's not what they're used for.
The same folk love to critique and minimize those with privacy concerns for wearing "tin foil hats". I really, really don't understand it considering all that's happened...
Tower to baseband injected code (via some update mechanism explicitly placed in the code, or an exploit) that then now has DMA access to physical memory?
Meta phone data like the number that you called? That's the drug dealer's number, in this example. That's an notification of a call, but not of the contents. So is that an intercept? I would say no, but it depends on your definition of "intercept".
I hesitate to comment on topics like this for fear of coming across as ignorant, but I find myself very conflicted over this subject.
I am a huge advocate for privacy and am strongly against unnecessary surveillance by governments and companies. On the other hand, if the evidence is compelling it seems a waste to discard it.
It's a hard question - do you think about the bigger picture: protect human rights by setting a precedence
Or do you think think about the short term: convict a dangerous criminal.
In a more hypothetical scenario, if a dangerous serial killer was brought into court and there was only one compelling piece of evidence, but it was obtained in an extremely unlawful manner - what would a judge be expected to do?
In the long run, the more dangerous criminal is the government itself if unchecked. Yes, it is frustrating to have criminals go free because police or prosecutor fucked up -- but government holds both the power of law and the power of (sanctioned) violence. If even they cannot be expected to follow their own law, why are they expecting others to follow it?
Your hypothetical is clear: the defendant's counsel would ask the judge to throw out the case, and the judge would comply. To make it a bit less hypothetical: what if the compelling piece of evidence was obtained through torturing a witness?
(edit: also, a "dangerous serial killer" is not so until a judge has convicted him/her. You are begging the question by presuming guilt)
> what if the compelling piece of evidence was obtained through torturing a witness?
The standard reply is that evidence obtained from torture can't be compelling because it is by definition unreliable. I've never been happy with that, since some claims can easily be independently verified. (For example, if I wanted credentials for a bank account belonging to Bill Gates, and I tortured him for those credentials, I wouldn't be too worried over the fact that someone under torture will be willing to say anything to stop it, and thus I can never really know if he was telling the truth about his credentials -- I can just try to take money, and if it doesn't work I'll keep torturing him.)
Once we stipulate that the compelling evidence obtained from torture is known to be true, I think you'll find that a lot of people still consider this a tough question.
> edit: also, a "dangerous serial killer" is not so until a judge has convicted him/her. You are begging the question by presuming guilt
No, a dangerous serial killer is one regardless of conviction. It's fair game to have whatever facts you want in a thought experiment.
> The standard reply is that evidence obtained from torture can't be compelling because it is by definition unreliable
You're conflating the reason evidence from torture is inadmissible with one of the arguments against torture.
Evidence from torture can't be admitted because we won't condone torture, ever (or, that's the theory, the real world is more, erhm, nuanced). The fact that intelligence from torture is unreliable is just one of a suite of arguments against torturing people in the first place, not a universal fact which is true for any information obtained through torture.
> since some claims can easily be independently verified
That's basically the Jack Bauer school of torture: You have a bad guy, and you know for a fact that he knows where the bomb is, and if/when he tells you, you can confirm immediately. If that situation occurred in the real world, I would assume that most people would bite their tongues and accept torture. But there is no evidence that it does. It's "What was your role in planning the attack? Who is the person in this picture? Who knows where Osama is hiding?" [source: Zero Dark Thirty] -- Sure, eventually, you can sort-of confirm these things, but torture really isn't effective if you have months-long feedback cycles.
>> The standard reply is that evidence obtained from torture can't be compelling because it is by definition unreliable
> You're conflating the reason evidence from torture is inadmissible with one of the arguments against torture.
No, I'm complaining that in much of what I read on this topic, the argument I stated is presented in the terms I stated it in: no evidence given under torture can ever be trusted, because people under torture will say whatever you tell them to say. I find that aggravating, because it is clearly wrong.
It's misleading to say it's one of a suite of arguments presented against torturing people in the first place; it is one of two, the other being that we shouldn't torture people because it is invariably morally wrong.
I don't think it's a coincidence that arguments that we should never torture people no matter what rely so heavily on different premises of invariability. But while the moral-incorrectness invariability claim can be defended, the untrustworthiness invariability claim can't be.
> a dangerous serial killer is one regardless of conviction.
But how do you know whether the person presented in the dock is a dangerous serial killer?
> It's fair game to have whatever facts you want in a thought experiment.
The whole point of a trial is to establish facts. In reality, we cannot ever guarantee things like this; we can only ever say how convincing the evidence is for a particular history of events.
TBH, if we want an example, OJ Simpson is good: he was eventually found to have wrongfully killed his wife in civil court, but at his initial murder trial he was acquitted due to (among other things) poor evidence handling by the LAPD.
There were widespread accusations of attempts to 'frame' OJ and of police racism. It was both right and necessary to discard the questionable evidence, otherwise a large part of the public would have believed that he was wrongly convicted. Evidence is not just for the courtroom, it's to rule out allegations of improper conviction and unfair treatment by the general public.
Keep in mind that the standard of proof in a civil trial is a lot lower. Being found liable in a civil trial doesn't mean he should have been found guilty at the criminal trial.
I agree that OJ probably did it based on what's known, I'm just nitpicking that one bit.
I'm saying that a more specific thought experiment, one where there is someone in custody, with clear (but tainted) video evidence of them committing multiple murders is in line with the more general thought experiment proposed upthread. So the various lawyers, the judges, the cops, they all have knowledge of the clear video evidence and the question is whether it can be used at trial or not.
So you could have a whole bunch of people really comfortable calling the suspect a murderer (because they've seen the evidence) and no path to a conviction.
I believe the problem there is that you can't define what "clear evidence" is, until the trial, when it's already been collected.
This gives policemen some really bad incentives to follow through on. Currently, the penalty for obtaining evidence illegally(or suppressing exculpatory evidence) is a slap on the wrist, so LEOs would have an incentive to collect as much evidence as possible, ignoring due process violations, because there's always a chance that evidence is ruled "clear evidence" at trial.
You would have to institute severe penalties for police officers, and then you are likely to end up with a law that has little effect in practice, except for corruption - LEOs will shy away from using it, except in cases where they know they can get away with it(bought prosecutor/judge, friendly jury, etc), or, admittedly, in cases where they really believe they're catching The Bad Guy(tm). The problem with this kind of law is that it has little effect for the majority of people(except for the headline that we caught one more Bad Guy(tm) per year using it), but it usually ends up as a tool to oppress minorities or those with deviant political and social views, as those are the ones a jury is most likely to be biased against.
Consider also that most criminal cases actually end with a plea bargain pre-trial. There is no jury to argue in front of in most of them, so all you'd have in front of you is evidence that the prosecutor is claiming to be "clear evidence"(still unproven), and your overworked PD telling you that the likelihood of the prosecutor not getting a conviction is in the single digits. You would have to allow judges to rule on whether something is "possibly clear evidence", but judges naturally favor the prosecution(most judges are ex-prosecutors, and they are usually on friendly terms with prosecution/police officers).
Due process is already trampled daily, without this "clear evidence" law that you propose. Police officers fabricate justifications for stops and searches out of thin air, prosecutors violate Brady by hiding exculpatory evidence(so much so that Chief Judge Kozinski highlighted it in a dissent - http://www.abajournal.com/news/article/epidemic_of_brady_vio...), trials take a stupidly long amount of time, PDs are exhausted, overworked and underpaid, etc. Your theoretical addition to it won't really make a significant impact - there's a million other ways for prosecutors to get a conviction, this will just be one extra tool in the toolbox. It won't be making the situation much worse, but it'd still be worse.
> No, a dangerous serial killer is one regardless of conviction.
True enough, but the point he raises is at what point do you justify illegal actions.
In your example, torture may or not bear fruit, depending on if your suppositions are correct.
The point is generally that in order for extreme measures to be taken, extreme justification must be given. And in general the justifications needed for torture would be so high that you would probably be able to convict without it, i.e. You can only torture someone if you knew beyond any doubt they dunnit.
The point of restricting the collection of evidence is to ensure that law enforcement go through a process with justification at each stage. This is to protect innocent/law abiding from law enforcement itself, as a lot of the acts they go through in the course of their business would be illegal if they were not law enforcement.
> And in general the justifications needed for torture would be so high that you would probably be able to convict without it
It's so high that IMHO the only possible place for torture in a civilized legal system is as punishment for torture by someone acting in a position of authority; if you're at the point where the moral calculus favors torture, you give absolutely zero fucks about what happens to yourself afterwards.
> an ALLEGED dangerous serial killer was brought into court and there was only one compelling piece of evidence, but it was obtained in an extremely unlawful manner
.. then it's quite possible that the person is innocent and the evidence is wrong. After all, if someone is willing to break the law to get evidence, why wouldn't they just fabricate it?
See http://www.innocenceproject.org/ which has managed to overturn a large number of convictions by finding contradictory evidence, especially from DNA.
To be fair most of these cases are not due to unlawfully acquired evidence or evidence that was fabricated altogether, so it's not a direct comparison.
The logical conclusion of your reasoning is that the police should gather all evidence that's physically possible. Just go and ransack people's homes, looking for evidence, no warrant involved.
Once they've got all the evidence they can collate it all and decide which people were probably really nasty, try to build a case - or in really extreme cases, just claim that the already-gathered evidence shows something so heinous that they needn't bother with that.
But that initial ransacking of our personal space without warrant (i.e., without probable cause) is the problem, not just the use of that evidence in a trial. People should be secure in their homes without needing to worry about law enforcement deciding it's time for periodic fishing expedition.
For me, the rule of law must trump all - the moment we sidestep that, it's the moment an already unfair (for the common man at least) legal system instantly becomes unacceptably weighted towards the state, bad policing and loss of the "justice" from the justice system.
In your situation, the judge would almost certainly be expected to throw out the evidence. I'd almost always prefer one guilty person go free than set a precedent that allows dodgy evidence and corrupt practices to convict innocent people. Plus - if the police /really/ know he's guilty, he'll be watched, and probably caught again.
Plus - if the police /really/ know he's guilty, he'll be watched, and probably caught again.
Especially for drug crimes. The customers still want the product and the sellers still need to pay their bills so if they don't clean themselves up (which is a win-win since it didn't require prison or some else that's expensive or disruptive) they'll come back to the attention of authorities.
I'd like to ask the question from the other direction: what do you propose should be done to law enforcement officers who collect evidence illegally?
As it stands today, we accept a sort of compromise. Law enforcement is typically not punished for collecting evidence illegally, but the evidence is discarded, giving them a strong incentive to follow the rules.
Do you accept the evidence but throw the responsible people in jail? That's probably going to have a major chilling effect on law enforcement in general, since they encounter a lot of ambiguous situations. But if you don't punish them, then collecting evidence illegally might as well be legal.
Think about it this way: it's not a waste to discard illegally collected evidence, it's a waste to collect evidence illegally. That ends up saying the same basic thing, except it directs the blame at the party that's actually responsible for doing it wrong.
For illegal actions, they should be investigated, judged and if necessary, punished. Just as regular citizens would be for such actions. Being in law enforcement does not mean you get extra slack when violating a law, it means you enforce the law. But if a police officer violates the law, they diminished the rule and respect for the law.
> the evidence is discarded, giving them a strong incentive to follow the rules.
I don't think that is a strong incentive at all. Such absurd exception from law enforcement is so advantageous to the criminal elements in the police and the government that they will use it to their advantage. A situation where one part of government is allowed to violate the law by another part of government with no law enforcement action means the checks and balances aren't working.
> I am a huge advocate for privacy and am strongly against unnecessary surveillance by governments and companies. On the other hand, if the evidence is compelling it seems a waste to discard it.
It is a waste, and one of the primary drivers for the saying "hard facts make bad law". (In this case, the bad law would be finding a reason to allow the evidence because it is necessary to punish someone who really ought to be punished.)
Excluding evidence is the method we have of enforcing the ban on illegal collection. There is an alternative system which would allow use of illegally collected evidence -- we could subject police who break the law to criminal penalties. But we make it almost impossible to prosecute police for anything they do, so instead we have to ignore what they find when they overreach.
(Note that if evidence is collected illegally by a private citizen, it won't be excluded.)
> Excluding evidence is the method we have of enforcing the ban on illegal collection. ... so instead we have to ignore what they find when they overreach.
There should rightfully be public outcry when this does happen as well, because essentially the police bungled the investigation and let a (likely) guilty person get away with the crime. OJ Simpson is a well-known example of this (brought up elsewhere in thread).
A good heuristic is to always favor the long term over the short, unless doing so significantly endangers the long term from ever coming to fruition. Of course, "significant" is subject to discussion. A serial killer, no matter how dangerous, has near zero chance of taking down the government and legal system, so to preserve the precedence for good policing practices, the judge should throw the evidence out. After all, if said person is actually a serial killer, there will be more chances to catch them properly.
In general, I'm willing to sacrifice a few people (including the people I love the most) to preserve just and fair institutions, but not the other way around.
Lets go one step further. Some man was convicted for serious crime and sent to jail, shortly after that in parallel case investigation comes up with very strong evidence (like videotape) that actually this person they are trying to convict here is responsible for both crimes. What judge should do? Overall point, if we throw away illegal evidence for conviction, can we use it for proving not guilty?
Yes. Mostly because you are not infringing on the rights of person Number 1. But you cannot use it convict Number 2 (pun not quite intended) for the crime N1 was convicted of.
I see, though there could be third party, which could be hurt by not using this evidence (e.g. 'their rights were infringed' in some sense). Imagine how would feel family of a victim of a rapist/murdered who was freed on a technicality.
The government can use evidence collected illegally if provided by a private party not at the behest of the government. AKA: Cops can't pay a PI to break into someone's house. Prosecutors can use evidence from a criminal who broke into someone's house and then sent it to the police. Prosecutors can use evidence collected by cops while in active pursuit of a third party.
The illustrated guide to law is fascinating and enjoyable [1] . For americans, at least, the whole thing is pretty wonderful.
There is a whole section on criminal procedure. The gist is, the police are expected to cross the line, infringing on rights on a fairly regular basis. It's up to the courts to throw out the excessive or egregious uses of power. Which, when you think about it, makes a lot of sense. They shouldn't step way over the line, ever. but you want police to push hard to find the "bad guys". sometimes they go excessively far and the bad guys go free. The thinking is, sometimes pushing to hard, and letting people go (innocent or not!) is preferable to timid officers that don't approach the line at all. We all want the "bad guys" to get caught.
It's whole different sections of government that decide where the line is. The police should push using every tool they have until the courts or the legislature say it's to much. You won't find a police officer, DA, defense attorney or judge that says the system is perfect. I think it's a pretty good heuristic though, the innocent pay a (hopefully) small price from time to time, in exchange more "bad guys" get caught.
>I think it's a pretty good heuristic though, the innocent pay a (hopefully) small price from time to time, in exchange more "bad guys" get caught.
The architects of our legal framework thought otherwise:
>it’s of more importance to community, that innocence should be protected, than it is, that guilt should be punished; for guilt and crimes are so frequent in the world, that all of them cannot be punished; and many times they happen in such a manner, that it is not of much consequence to the public, whether they are punished or not. But when innocence itself, is brought to the bar and condemned, especially to die, the subject will exclaim, it is immaterial to me, whether I behave well or ill; for virtue itself, is no security. And if such a sentiment as this, should take place in the mind of the subject, there would be an end to all security what so ever.
-John Adams' Argument for the Defense: 3–4 December 1770
>It's whole different sections of government that decide where the line is. The police should push using every tool they have until the courts or the legislature say it's to much.
That works until the police start hiding what they're doing from the courts and the legislature. Look at the hoops they've jumped through to keep Stingray information away from judicial scrutiny, even dropping entire cases rather than letting Stringray details come to light.
That's the whole intention of parallel construction, too. You step way over the line to collect evidence illegally, but then you find a way to pretend you only stepped over a little bit. Checks and balances only work when each side knows what the other is up to.
I'd be inclined to agree, if and only if "going too far" comes with its own (judicial, not administrative) punishments, not just letting the suspect go free. Otherwise the incentive structure is screwed up, since the police suffer personal consequences when they don't go far enough but do not when they go too far.
IMO all sufficiently reliable evidence should be admissible but illegitimate collection of evidence (e.g. illegal searches) should be punished more severely.
AIUI the German court system superficially also considers illegitimately obtained evidence inadmissible but has provisions that allow case-by-case decisions to be made in consideration of the severity of the crime. I think that is far more reasonable.
Imagine the classic crime drama scenario: a suspected serial killer is being interrogated by the police, the officer beats him up (breaking the law) to make him talk after exhausting all legal options. The killer reveals truthful information that helps locating the final victim and severely incriminates him.
If I understand the two systems correctly, under the US system the evidence would be inadmissible, even if it proved perpetrator's knowledge (which may be a major factor in proving his guilt). Under the German system the evidence might be considered because although it was gained illegally it is crucial to the case and the crime was so severe. In either case they officer should face severe consequences (though IMO likely not severe enough).
There was actually a situation similar to this in Germany a few years back: a police officer tortured a suspect to make him talk. I think he was thought to have abducted a child that was at the risk of dying. I'm not sure how it worked out but it sparked a similar discussion in German media about the ethics of the situation (with the general consensus being that the behaviour was blatantly illegal even if it may have saved a life).
I think you mean the Daschner-case in your last paragraph, if so, small correction: He only threatened the suspect with torture and didn't actually do it, and reported himself for doing so. He was sentenced very mildly, but the court made clear that there was no way for it to be legal.
Not really. There are reliable ways to collect evidence that might still be illegal.
For example it might be illegal to search a diplomat in the same way as would be legal for an ordinary civilian. But there's no obvious reason why evidence gathered from a non-permissible search would be less reliable than from a permissible one by default.
Likewise although it is true that torture is not a good means of gathering intelligence or extracting confessions (because there's a clear incentive for people to make up things just to stop the suffering) if the information can be verified it could still reasonably be considered evidence that the tortured person possessed perpetrator's knowledge.
"Evidence" is never absolute. Even if you have a video recording of a suspect shooting and killing a victim and then walking into police custody that's still not a 100% guarantee. Evidence is however cumulative (beyond a certain threshold anyway). You rarely base a conviction on a single piece of evidence alone.
For every serial killer, the government may be catching 100 mostly innocent people this way. To me the morals here are very clear. The case should be thrown out.
There are a couple of different rationales advanced today for excluding illegally obtained evidence (this is called the "exclusionary rule"). One that you hear a lot is that it gives an incentive for police and prosecutors to respect constitutional rights as they do not want to have their cases dismissed. (Otherwise, there would be no legal consequences for conducting an illegal search.) It would also seem improper for a court to condone illegal searches by allowing the resulting evidence to be introduced.
The rule originates in a 1914 Supreme Court case, Weeks v. United States[1]. In that case, the police searched a man's home without a warrant and then introduced papers seized in the search as evidence to convict him of running an illegal lottery.
The court reasoned that this evidence must be excluded (and the conviction must be overturned) because to allow illegally obtained evidence to be used in a proceeding would "affirm by judicial decision a manifest neglect, if not an open defiance, of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action."
In other words, if the 4th Amendment's protections against unreasonable searches and seizures are to mean anything, a Court cannot countenance the use of illegally obtained evidence.
I think this reasoning is persuasive even if it seems a bit formalistic. The state only has the power to convict you when it is itself acting lawfully. A conviction based on evidence it did not have the authority to obtain is meaningless.
The idea is to discourage the authorities from acting unlawfully because as soon as they get free reign to do so how can you ever be sure of a person's guilt?
Considering how advance technology is there are already reasons to doubt any system which is not fully encrypted beyond the government's access of not having had evidence planted or manipulated.
Essentially: A serial killer told his lawyers where two of his victims were buried. Should the lawyers disclose this information even though their defendant was the only source?
It's interesting because it's not merely hypothetical, and their reporting is fairly good.
While it doesn't answer your question, the spirit of the answer can maybe inform the spirit of how one would answer your question.
The issue is that the data was gathered without a warrant, making it inadmissible.
In cases like this where it sounds like a number was found in a known drug dealer's phone, I can't imagine they would have had much trouble getting a judge to sign a warrant to track the phone?
In my opinion? The evidence stands - it's real evidence - but the police officer who gathered it in an illegal manner is jailed for doing so.
You want to put that perp away so badly that you're willing to break the law to do so? It will be the only time in your career that you get to do it (because as soon as you do, your career is over), so choose the perp wisely...
[Edit: mikeash has a good point - the line can be grey. Police should only be jailed for deliberately, knowingly collecting illegal evidence, not for making a technical mistake that a defense lawyer with a vendetta can exploit to ruin them.]
The problem you face is one of perspective. The founding fathers lived under the rule of a monarch, in an era filled with tyrants, so they well knew the patterns of behavior and the risks. And they appreciated that the risk of abuse of power by the government far exceeded the risks of letting a few criminals and wrongdoers fall through the cracks now and then. A government unrestrained by strong protections for individual liberty and due process is a government with no guardrail to protect it against prosecution of systematic injustices.
>In a more hypothetical scenario, if a dangerous serial killer was brought into court and there was only one compelling piece of evidence, but it was obtained in an extremely unlawful manner - what would a judge be expected to do?
There's a reason why all over the world, almost all legal systems, have terms and regulations restricting those kind of police overreach, EVEN if it's for "catching a serial killer" -- and it's not because lawmakers don't want to catch criminals.
You are probably an really smart person, but this line of reasoning appeals to us at a very visceral level. If you look at the harm done to society, a guilty individual going free is a far smaller injury than letting government run amok.
It might seem absurd today (although it shouldn't, given the snowden papers), but power concentrated in government hands will be mistreated as soon as the person gets elected who is willing to use it. And if that happens, it's catastrophic.
One thing to keep in mind is that Stingray use isn't limited to collecting evidence to use at trial. It's sometimes used just to make warrant service & arrests easier.
I wonder how often it's used as a law enforcement tool with no intent to disclose its use.
One of their major use cases is to siphon up information about people attending protests. Obviously these data are never, ever used to repress political dissidents, promise.
FBI made it clear to lower level law enforcement to always conceal evidence obtained through Stingrays and to never enter such evidence for this reason. Their use will be further concealed behind parallel construction for national security.
For example, say you're talking to your friend who sells weed and drive over to pick it up. The cops know you're buying drugs, so they pull you over for rolling through a stop sign, search your car, and "stumble" upon the weed. There is no way to prove they used a Stringray to get this information in the first place. Extrapolate this to other activities.
[0] - https://en.wikipedia.org/wiki/Parallel_construction