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The idea of the exclusionary principle is that it's the only way to have the right incentives for the authorities to abide by constitutional restrictions on the

The idea of the exclusionary principle is that it's the only way to have the right incentives for the authorities to abide by constitutional restrictions on their power. If they don't follow the rules, then they can't use their evidence in court. As a result, their internal procedures are designed to prevent that outcome. Despite the high profile cases and media coverage that makes it seem otherwise, law enforcement procedures tend to be much more restrictive than the constitution demands, because they want to avoid any doubt that their actions are legal and that their evidence is admissible. They also want to avoid edge-cases that could lead to court rulings that add to their constitutional restrictions, which will tie their hands in future cases where they might have a pressing need to exercise the full scope of their powers. Without the exclusionary rule, you rely on the authorities following restrictions purely out of the goodness of their hearts, or only as much as the voters of the day demand. What incentive would the prosecutors and police have to limit their own authority? You can't have the fox guarding the hen house.

humanrebar 9y ago
> ...it's the only way... How can this be true? "Only" is a strong word. And there are functioning judicial systems elsewhere that have different evidentiary rules. I agree that there should be external incentives to obey rules and procedures, but there have to be other incentives out there. Why can't sanctions against individuals and organizations work just as well, for instance? The exclusionary principle is remarkably indirect, if incentives for law enforcement officials is the primary reason for the principle.
- marcoperaza 9y ago
  >Why can't sanctions against individuals and organizations work just as well, for instance? Because the judicial branch doesn't play an active role in regulating and managing the executive branch. They can only address specific cases and controversies that have been brought before them. And if the legislature doesn't enact penalties for police overstepping their bounds, then the courts can do nothing to punish them. They can only issue orders to halt a specific ongoing violation. This is a hard requirement of the US Constitution[1], and the other common law systems around the world function the same way. [1] https://en.wikipedia.org/wiki/Case_or_Controversy_Clause https://en.wikipedia.org/wiki/Case_or_Controversy_Clause
  - humanrebar 9y ago
    So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible. What concerns me is that there seems to be a resignation to a false dichotomy between partially informed jurors and abusive trials. I'm not convinced that there isn't a better option out there. Especially since the U.S. is somewhat unique in its application of the idea. http://www.nytimes.com/2008/07/19/us/19exclude.html http://www.nytimes.com/2008/07/19/us/19exclude.html
    - marcoperaza 9y ago
      >So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible. In the UK, these rights are merely statutory and exist at the discretion of Parliament (the doctrine of Parliamentary Sovereignty). If Parliament does not create an adequate enforcement mechanism, then that is its will and the legally legitimate outcome. The rights guaranteed by the US Constitution, however, do not exist at the discretion of Congress. The courts will not allow the Fourth Amendment to become inoperative because Congress and the President fail to enforce it. On the other hand, Congress can and does create statutory rights through legislation, and is free to create as vigorous or as weak an enforcement mechanism for them as it wishes.
      - humanrebar 9y ago
        There's nothing about the exclusionary principle in the Constitution. It lays out rights but doesn't say much about what happens if they are violated. > The courts will not allow the Fourth Amendment to become inoperative because Congress and the President fail to enforce it. Again, this is a false choice. Other countries make sure prevailing law is enforced without the exclusionary principle. And other amendments are enforced without compromising the pursuit of truth in the courtroom. There are no enforcement mechanisms for the first amendment in the Constitution, but it gets enforced.

humanrebar 9y ago

> ...it's the only way... How can this be true? "Only" is a strong word. And there are functioning judicial systems elsewhere that have different evidentiary rules. I agree that there should be external incentives to obey rules and procedures, but there have to be other incentives out there. Why can't sanctions against individuals and organizations work just as well, for instance? The exclusionary principle is remarkably indirect, if incentives for law enforcement officials is the primary reason for the principle.

marcoperaza 9y ago
>Why can't sanctions against individuals and organizations work just as well, for instance? Because the judicial branch doesn't play an active role in regulating and managing the executive branch. They can only address specific cases and controversies that have been brought before them. And if the legislature doesn't enact penalties for police overstepping their bounds, then the courts can do nothing to punish them. They can only issue orders to halt a specific ongoing violation. This is a hard requirement of the US Constitution[1], and the other common law systems around the world function the same way. [1] https://en.wikipedia.org/wiki/Case_or_Controversy_Clause https://en.wikipedia.org/wiki/Case_or_Controversy_Clause
- humanrebar 9y ago
  So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible. What concerns me is that there seems to be a resignation to a false dichotomy between partially informed jurors and abusive trials. I'm not convinced that there isn't a better option out there. Especially since the U.S. is somewhat unique in its application of the idea. http://www.nytimes.com/2008/07/19/us/19exclude.html http://www.nytimes.com/2008/07/19/us/19exclude.html
  - marcoperaza 9y ago
    >So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible. In the UK, these rights are merely statutory and exist at the discretion of Parliament (the doctrine of Parliamentary Sovereignty). If Parliament does not create an adequate enforcement mechanism, then that is its will and the legally legitimate outcome. The rights guaranteed by the US Constitution, however, do not exist at the discretion of Congress. The courts will not allow the Fourth Amendment to become inoperative because Congress and the President fail to enforce it. On the other hand, Congress can and does create statutory rights through legislation, and is free to create as vigorous or as weak an enforcement mechanism for them as it wishes.
    - humanrebar 9y ago
      There's nothing about the exclusionary principle in the Constitution. It lays out rights but doesn't say much about what happens if they are violated. > The courts will not allow the Fourth Amendment to become inoperative because Congress and the President fail to enforce it. Again, this is a false choice. Other countries make sure prevailing law is enforced without the exclusionary principle. And other amendments are enforced without compromising the pursuit of truth in the courtroom. There are no enforcement mechanisms for the first amendment in the Constitution, but it gets enforced.