3 ms·

It makes sense to me -- illegitimately gained evidence is inadmissible. What would you do differently, and why do you think it would work better?

jakelazaroff 2y ago
Prosecute the detectives who broke the law.
- SpicyLemonZest 2y ago
  As a replacement for the existing system, that seems significantly worse for the victims of police misconduct. They’d have no recourse unless it can be proven beyond a reasonable doubt, and the officers responsible would have a Fifth Amendment right not to testify about it.
  - boxed 2y ago
    In Sweden, all evidence is admissible. If you have a warrant for say drugs, and you accidentally find someone who is kidnapped in that house, you can still use that evidence to prosecute the kidnapper.
    - buildsjets 2y ago
      The same in the USA. But only if the original warrant for the drugs were obtained legally. If the original warrant was obtained illegally, all evidence obtained using that warrant is inadmissible.
    - SpicyLemonZest 2y ago
      Sounds like a system that makes a lot of sense for a country with a higher level of police trust. As you can probably infer from the call for prosecuting the police upthread, there’s a lot of Americans who don’t particularly trust the police and don’t think that accidents are the common case. For what it’s worth, that specific scenario is admissible in the US as well under the plain view doctrine.
    - mplanchard 2y ago
      That is also fine here, provided that the warrant for drugs was legally obtained. Even if it were not illegally obtained, finding an actual victim of kidnapping, who testifies under their own free will, would probably be enough to trigger the attenuation doctrine, which allows the admission of illegally obtained evidence when it is of sufficient distance from the illegality to "attenuate" the connection.
    - ewidar 2y ago
      I think the key point is that you start with a valid warrant, no?
    - WrongAssumption 2y ago
      Same in the US. What you cannot do is conduct a warrantless search and then use the evidence.
    - deathanatos 2y ago
      (IANAL.) > In Sweden, all evidence is admissible. In America, we have the fourth amendment, a right against unreasonable searches. In Sweden, if I don't have a warrant or probable cause, and I search the house 'cause I feel like it, and I find drugs, can I then use the evidence of the drugs that I found in court? AFAICT, that's a closer analogue here. Because if I can, then you effectively don't need warrants: just violate the rights of the person, do the search, and see what comes of it. If something comes out of it that makes them look guilty, book 'em! /s, a bit, but the point is that if you don't bar the fruits of illegal/unconstitutional searches, the right becomes meaningless. > If you have a warrant for say drugs, and you accidentally find someone who is kidnapped in that house, you can still use that evidence to prosecute the kidnapper. You can here, too (the "plain view doctrine" would apply here, I believe), if you validly have that warrant, which critically, the police here did not.
      - themaninthedark 2y ago
        IANAL but my understand is that the plain view doctrine would apply. for example, if the police have a warrant for a 2000 Honda Civic with suspicion it was used in a hit and run, they come to the property and check the cars parked in the driveway, the garage door is open so they can see no cars there as well but they come into the house, go into your basement and find your grow operation, that would constitute an illegal search. The grow operation was not in "plain sight", since it was behind a door in the basement and the scope of the warrant was for a 2000 Honda Civic, something not kept in basements. Usually warrants tend to be overbroad, so the it would probably be written as "search property for evidence of hit and run" in which case they could gain access to the basement.
      - jakelazaroff 2y ago
        I don't think you've answered the original question, though. Why is that better than e.g. prosecuting detectives for their illegal conduct? Because in a sense police in the U.S. don't need a warrant right now — sure, the evidence might be thrown out, but they effectively face no accountability for breaking the law.
  - jakelazaroff 2y ago
    So make these things civil offenses. Lower burden of proof and no right to not testify. Make them personally pay for breaking the law.
- Cthulhu_ 2y ago
  You'd end up losing a lot of detectives though, which is also pretty damning.
  - perlgeek 2y ago
    You want to lose those that break the law.
xnorswap 2y ago
Your question made me look up https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree That has some examples of how other countries handle things.

jakelazaroff 2y ago

Prosecute the detectives who broke the law.

SpicyLemonZest 2y ago
As a replacement for the existing system, that seems significantly worse for the victims of police misconduct. They’d have no recourse unless it can be proven beyond a reasonable doubt, and the officers responsible would have a Fifth Amendment right not to testify about it.
- boxed 2y ago
  In Sweden, all evidence is admissible. If you have a warrant for say drugs, and you accidentally find someone who is kidnapped in that house, you can still use that evidence to prosecute the kidnapper.
  - buildsjets 2y ago
    The same in the USA. But only if the original warrant for the drugs were obtained legally. If the original warrant was obtained illegally, all evidence obtained using that warrant is inadmissible.
  - SpicyLemonZest 2y ago
    Sounds like a system that makes a lot of sense for a country with a higher level of police trust. As you can probably infer from the call for prosecuting the police upthread, there’s a lot of Americans who don’t particularly trust the police and don’t think that accidents are the common case. For what it’s worth, that specific scenario is admissible in the US as well under the plain view doctrine.
  - mplanchard 2y ago
    That is also fine here, provided that the warrant for drugs was legally obtained. Even if it were not illegally obtained, finding an actual victim of kidnapping, who testifies under their own free will, would probably be enough to trigger the attenuation doctrine, which allows the admission of illegally obtained evidence when it is of sufficient distance from the illegality to "attenuate" the connection.
  - ewidar 2y ago
    I think the key point is that you start with a valid warrant, no?
  - WrongAssumption 2y ago
    Same in the US. What you cannot do is conduct a warrantless search and then use the evidence.
  - deathanatos 2y ago
    (IANAL.) > In Sweden, all evidence is admissible. In America, we have the fourth amendment, a right against unreasonable searches. In Sweden, if I don't have a warrant or probable cause, and I search the house 'cause I feel like it, and I find drugs, can I then use the evidence of the drugs that I found in court? AFAICT, that's a closer analogue here. Because if I can, then you effectively don't need warrants: just violate the rights of the person, do the search, and see what comes of it. If something comes out of it that makes them look guilty, book 'em! /s, a bit, but the point is that if you don't bar the fruits of illegal/unconstitutional searches, the right becomes meaningless. > If you have a warrant for say drugs, and you accidentally find someone who is kidnapped in that house, you can still use that evidence to prosecute the kidnapper. You can here, too (the "plain view doctrine" would apply here, I believe), if you validly have that warrant, which critically, the police here did not.
    - themaninthedark 2y ago
      IANAL but my understand is that the plain view doctrine would apply. for example, if the police have a warrant for a 2000 Honda Civic with suspicion it was used in a hit and run, they come to the property and check the cars parked in the driveway, the garage door is open so they can see no cars there as well but they come into the house, go into your basement and find your grow operation, that would constitute an illegal search. The grow operation was not in "plain sight", since it was behind a door in the basement and the scope of the warrant was for a 2000 Honda Civic, something not kept in basements. Usually warrants tend to be overbroad, so the it would probably be written as "search property for evidence of hit and run" in which case they could gain access to the basement.
    - jakelazaroff 2y ago
      I don't think you've answered the original question, though. Why is that better than e.g. prosecuting detectives for their illegal conduct? Because in a sense police in the U.S. don't need a warrant right now — sure, the evidence might be thrown out, but they effectively face no accountability for breaking the law.
- jakelazaroff 2y ago
  So make these things civil offenses. Lower burden of proof and no right to not testify. Make them personally pay for breaking the law.
Cthulhu_ 2y ago
You'd end up losing a lot of detectives though, which is also pretty damning.
- perlgeek 2y ago
  You want to lose those that break the law.

xnorswap 2y ago

Your question made me look up https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree https://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree That has some examples of how other countries handle things.