From a reader:
Hello Jonah:
I’ve found the discussion on the exclusionary rule to be interesting.
I currently work as a defense attorney, so I obviously have some
affinity for the rule. By I come from a very conservative background
and actually worked for several years as a prosecutor before falling
into my current line of work. (Criminal defense is a sideline to the
main thrust of my practice).
Thus, I find myself conflicted for a couple of reasons. First, I
learned very early on when I worked in the prosecutor’s office that
cops lie, and they lie all the time. The thing is, most of the time
we don’t really care that they lied, specifically for the reasons that
you have outlined. This is not say that all cops lie or fudge the
facts to get around a possible suppression based on a bad search, but
it happens much more often than is generally known. Thus, giving cops
an “out” to cover there intentionaly illegal actions is problematic.
However, you suggest that “If a cop wrongly breaks down my door, I
should be able to sue. If a cop wasn’t absolutely sure he had the
right guy, he’d still have a strong incentive to have all the right
paperwork.” I worry that this system would have the opposite effect,
w/ police officers subject to civil penalties (and loss of job?)
becoming too timid in their work for fear of crossing the line. Just
because I’m a defense attorney doesn’t mean I want the police
emasculated. When I call them, I want them at my door guns drawn and
ready to roll.
My own personal experience is that folks who cry about the effect of
the exclusionary rule are overstating their cases. In my own case,
I’ve probably brought 15-20 motion to suppress last year, and I only
won in a single case, and even in that case, my client didn’t get away
scott-free because there was other evidence that wasn’t suppressable.
My evidentiary challeges never win unless the violation is easily
provable and obvious. In most cases, it’s a case of he said/she said,
and who do you think judge’s most often believe? The guy in blue w/
the badge and gun? Or the guy with multiple tattoos, nose rings,
piercings, long, ratty hair and a bad attitude?
I guess what I’m saying is that, while there may be some egregious
exceptions, the exclusionary rule works pretty well as is.
Ciao.
[Name withheld]