6 ms·

I've never understood this. If I gather evidence against somebody illegally, and it proves their guilt, shouldn't we both go to jail?

qeternity 10y ago
Fruit of the forbidden tree. It's inadmissible in court.
- sathackr 10y ago
  Unless the LEO acted in "good faith"
ChuckMcM 10y ago
The structure is to keep police officers honest which is more important than a particular person going to jail. The operating principle is that a dishonest police force is more dangerous than a criminal who was caught using illegal evidence. Typically the criminal will commit another crime and if you get evidence against them legally, then you can prosecute them for the new crime.
- denzil_correa 10y ago
  > The operating principal Wouldn't the right word be "principle"?
  - ChuckMcM 10y ago
    Yes it would be (fixed). Thanks for catching it while it was still editable!
- gpm 10y ago
  The "we both go to jail" policy would probably do even betting at keeping police officers honest. The threat of the officer going to jail being significantly worse than the threat of allowing the criminal to walk free. The details are sketchy, who prosecutes the police/prosecutors? But in principle I think it makes sense.
  - Frogolocalypse 10y ago
    > worse than the threat of allowing the criminal to walk free. Alleged criminal. You realize you're innocent until proven guilty, right?
    - deleted 10y ago
      [deleted]
  - Cerium 10y ago
    A "we both go to jail" policy would have the same incentives we see in the Wells Fargo example. We need top down incentive to follow the law at all levels. The current situation means that nobody profits from failure to follow the law.
  - Retra 10y ago
    >The threat of the officer going to jail being significantly worse than the threat of allowing the criminal to walk free. Not if the officer going to jail is being manipulated by their superiors or is otherwise arranged to take the fall for someone else.
woolly 10y ago
I think the logic is: "If you're willing to gather evidence against somebody illegally, then you'd also be willing to fabricate evidence that doesn't exist".
wolfgke 10y ago
This argument would legitimize torture if society would agree on that it is legitimate. So it's a really bad idea to accept this argument.
- mcbits 10y ago
  The way the system is now, if you gather evidence by "torture" (remembering it's just an analogy) and fail to come up with a convincing cover story for how you gathered the evidence, then the case is dismissed and everyone goes home. "Welp, it was worth a try!" It's this current system that's at risk of legitimizing torture as yet another illegal-but-oh-well tool for investigation.
  - CapitalistCartr 10y ago
    Not if the victim of torture can afford our legal system. A (most likely Federal) judge would deny qualified immunity to those responsible, and they'd be held accountable at least in civil court, possibly criminal, although doubtful, given the way state prosecutors crawl up the police butt.
    - knieveltech 10y ago
      A federal judge deny qualified immunity? I'm struggling to contain my incredulity. There are instances where cops shot people who were unarmed and attempting to comply, where filmed doing it from multiple angles, and the cops still walked.
      - AnthonyMouse 10y ago
        There also cases where cops shot people and the cops went to jail, but nobody talks about those. https://slatestarcodex.com/2014/12/17/the-toxoplasma-of-rage/ https://slatestarcodex.com/2014/12/17/the-toxoplasma-of-rage...
        knieveltech 10y ago
tptacek 10y ago
You're getting a lot of huffy responses to this question, but it is an entirely legitimate one. In fact, many (maybe most?) western countries don't have the same exclusionary rules the US has. There are other remedies to police misconduct. If you were starting a nation from first principles, it's not an iron law of justice that your courts have that rule. The reason we believe the exclusionary rule works so well is that it strikes directly at the incentive structure for the police. We don't have to convince evidence-gathering officers of their liability or assess liability up and down the chain of responsibilities on the prosecution's side; we just have to assess whether evidence was handled properly, and, if it wasn't, the prosecutors lose the evidence. The one simple rule neatly ensures that nobody --- in any role --- on the prosecution's side has any incentive to mishandle evidence (or coerce underlings or partner organizations to mishandle it). But clearly the rule isn't a requirement. We don't generally believe, for instance, that Canada's criminal justice system is systemically corrupt, and they don't have a hard-and-fast exclusion rule.
- waqf 10y ago
  > incentive structure for the police That assumes that the police's incentive is simply to convict as many people as possible. Which, if true, raises other concerns.
  - setr 10y ago
    I think it more assumes that the police's incentive is to maximize the ratio of accusation to conviction as much as possible, which is a reasonable goal. If they were simply trying to maximize the total number of convictions, then this wouldn't necessarily help; the police would just make broaden the kind of cases they'd accuse And ofc, it's the function of the police to maximize the misdemeanor to conviction ratio; it's the function of the court to judge the quality of misdemeanor. It is the function of whatever social/moral arm of the government to minimize misdemeanors. A police officer minimizing the number of accusations should only be doing so for practical reasons; In the ideal world he shouldn't be trying to interpret the law itself, and if it should exist (because it should in general be explicit what is and is not legal, and in general, it is not the policeman's job to decide what is moral, it is to enforce the standing morals.) But its not an ideal world, and nobody wants to spend time/effort/money on a trash case, so the general incentive is to successfully convict; not to simply try.
goodplay 10y ago
What guarantees do we have that the evidence has not been fabricated or planted? Evidence collection processes exists to minimize misconduct. If someone can't explain how the evidence has been obtained, they should be viewed as suspect.
tgragnato 10y ago
I'm with you ! They are both criminals and as such should be detained. Quoting Bill Binney “Things won't change until we put these people in jail”
devwastaken 10y ago
There's multiple problems with that idea. Firstly, it incentivizes 'working around the system' for enforcement to go after people. Enforcement is not inherenetly out there for the 'good', many times they're there for their own agenda, while looking like they're enforcing the law. This can create a mixture of criminal/enforcement culture, and lead to a further increase of 'bad cops'. Secondly, when gathering evidence illigally, it may be that the evidence is purely out of context, shaped to make the person look guilty, or that the methods of doing so are not reliable. Courts still have a problem with reliability of evidence, even 'lie-detectors' are still seen as legitimate, but there is no evidence of their ability.
deleted 10y ago
[deleted]
riprowan 10y ago
How can tainted evidence be used to establish guilt beyond reasonable doubt, when the entire basis of trust in the collection of the evidence is ostensibly gone.
alasdair_ 10y ago
One reason that I didn't consider until relatively recently is the issue of standing. It's not possible for random people to successfully sue, say, the police for illegally gathering evidence if they have no proof that they were harmed and no proof that it happened. The issue is that only people charged with a crime have the standing needed to bring this matter up in court. The (possible) crooks keep the police and justice department honest.
xenotb 10y ago
How would one stop the police from getting "anonymous tips" with illegally acquired evidence again and again? It sounds like it would lead to a plain disregard for procedure.
mfukar 10y ago
I'm pretty sure there's a common saying about two lefts not making a right. Or two rights not making a wrong? Can't quite remember.

qeternity 10y ago

Fruit of the forbidden tree. It's inadmissible in court.

sathackr 10y ago
Unless the LEO acted in "good faith"

ChuckMcM 10y ago

The structure is to keep police officers honest which is more important than a particular person going to jail. The operating principle is that a dishonest police force is more dangerous than a criminal who was caught using illegal evidence. Typically the criminal will commit another crime and if you get evidence against them legally, then you can prosecute them for the new crime.

denzil_correa 10y ago
> The operating principal Wouldn't the right word be "principle"?
- ChuckMcM 10y ago
  Yes it would be (fixed). Thanks for catching it while it was still editable!
gpm 10y ago
The "we both go to jail" policy would probably do even betting at keeping police officers honest. The threat of the officer going to jail being significantly worse than the threat of allowing the criminal to walk free. The details are sketchy, who prosecutes the police/prosecutors? But in principle I think it makes sense.
- Frogolocalypse 10y ago
  > worse than the threat of allowing the criminal to walk free. Alleged criminal. You realize you're innocent until proven guilty, right?
  - deleted 10y ago
    [deleted]
- Cerium 10y ago
  A "we both go to jail" policy would have the same incentives we see in the Wells Fargo example. We need top down incentive to follow the law at all levels. The current situation means that nobody profits from failure to follow the law.
- Retra 10y ago
  >The threat of the officer going to jail being significantly worse than the threat of allowing the criminal to walk free. Not if the officer going to jail is being manipulated by their superiors or is otherwise arranged to take the fall for someone else.

woolly 10y ago

I think the logic is: "If you're willing to gather evidence against somebody illegally, then you'd also be willing to fabricate evidence that doesn't exist".

wolfgke 10y ago

This argument would legitimize torture if society would agree on that it is legitimate. So it's a really bad idea to accept this argument.

mcbits 10y ago
The way the system is now, if you gather evidence by "torture" (remembering it's just an analogy) and fail to come up with a convincing cover story for how you gathered the evidence, then the case is dismissed and everyone goes home. "Welp, it was worth a try!" It's this current system that's at risk of legitimizing torture as yet another illegal-but-oh-well tool for investigation.
- CapitalistCartr 10y ago
  Not if the victim of torture can afford our legal system. A (most likely Federal) judge would deny qualified immunity to those responsible, and they'd be held accountable at least in civil court, possibly criminal, although doubtful, given the way state prosecutors crawl up the police butt.
  - knieveltech 10y ago
    A federal judge deny qualified immunity? I'm struggling to contain my incredulity. There are instances where cops shot people who were unarmed and attempting to comply, where filmed doing it from multiple angles, and the cops still walked.
    - AnthonyMouse 10y ago
      There also cases where cops shot people and the cops went to jail, but nobody talks about those. https://slatestarcodex.com/2014/12/17/the-toxoplasma-of-rage/ https://slatestarcodex.com/2014/12/17/the-toxoplasma-of-rage...
      - knieveltech 10y ago

tptacek 10y ago

You're getting a lot of huffy responses to this question, but it is an entirely legitimate one. In fact, many (maybe most?) western countries don't have the same exclusionary rules the US has. There are other remedies to police misconduct. If you were starting a nation from first principles, it's not an iron law of justice that your courts have that rule. The reason we believe the exclusionary rule works so well is that it strikes directly at the incentive structure for the police. We don't have to convince evidence-gathering officers of their liability or assess liability up and down the chain of responsibilities on the prosecution's side; we just have to assess whether evidence was handled properly, and, if it wasn't, the prosecutors lose the evidence. The one simple rule neatly ensures that nobody --- in any role --- on the prosecution's side has any incentive to mishandle evidence (or coerce underlings or partner organizations to mishandle it). But clearly the rule isn't a requirement. We don't generally believe, for instance, that Canada's criminal justice system is systemically corrupt, and they don't have a hard-and-fast exclusion rule.

waqf 10y ago
> incentive structure for the police That assumes that the police's incentive is simply to convict as many people as possible. Which, if true, raises other concerns.
- setr 10y ago
  I think it more assumes that the police's incentive is to maximize the ratio of accusation to conviction as much as possible, which is a reasonable goal. If they were simply trying to maximize the total number of convictions, then this wouldn't necessarily help; the police would just make broaden the kind of cases they'd accuse And ofc, it's the function of the police to maximize the misdemeanor to conviction ratio; it's the function of the court to judge the quality of misdemeanor. It is the function of whatever social/moral arm of the government to minimize misdemeanors. A police officer minimizing the number of accusations should only be doing so for practical reasons; In the ideal world he shouldn't be trying to interpret the law itself, and if it should exist (because it should in general be explicit what is and is not legal, and in general, it is not the policeman's job to decide what is moral, it is to enforce the standing morals.) But its not an ideal world, and nobody wants to spend time/effort/money on a trash case, so the general incentive is to successfully convict; not to simply try.

goodplay 10y ago

What guarantees do we have that the evidence has not been fabricated or planted? Evidence collection processes exists to minimize misconduct. If someone can't explain how the evidence has been obtained, they should be viewed as suspect.

tgragnato 10y ago

I'm with you ! They are both criminals and as such should be detained. Quoting Bill Binney “Things won't change until we put these people in jail”

devwastaken 10y ago

There's multiple problems with that idea. Firstly, it incentivizes 'working around the system' for enforcement to go after people. Enforcement is not inherenetly out there for the 'good', many times they're there for their own agenda, while looking like they're enforcing the law. This can create a mixture of criminal/enforcement culture, and lead to a further increase of 'bad cops'. Secondly, when gathering evidence illigally, it may be that the evidence is purely out of context, shaped to make the person look guilty, or that the methods of doing so are not reliable. Courts still have a problem with reliability of evidence, even 'lie-detectors' are still seen as legitimate, but there is no evidence of their ability.

deleted 10y ago

[deleted]

riprowan 10y ago

How can tainted evidence be used to establish guilt beyond reasonable doubt, when the entire basis of trust in the collection of the evidence is ostensibly gone.

alasdair_ 10y ago

One reason that I didn't consider until relatively recently is the issue of standing. It's not possible for random people to successfully sue, say, the police for illegally gathering evidence if they have no proof that they were harmed and no proof that it happened. The issue is that only people charged with a crime have the standing needed to bring this matter up in court. The (possible) crooks keep the police and justice department honest.

xenotb 10y ago

How would one stop the police from getting "anonymous tips" with illegally acquired evidence again and again? It sounds like it would lead to a plain disregard for procedure.

mfukar 10y ago

I'm pretty sure there's a common saying about two lefts not making a right. Or two rights not making a wrong? Can't quite remember.