The Supreme Court recently announced that it will amend the rules on criminal procedure, possibly even the rules on evidence. Reforms of any kind-- legal, economic, political-- give us a chance to compare what is and what ought to be. Now, I'm nowhere near an expert in legal theory and am not a practitioner of law, but I'd like to take a look at some of the rules on evidence, particularly the so-called poisonous tree. Please bear with me if I mix up my legal terms or processes; feel free to educate me. To lay my point let us consider a hypothetical but very likely situation:
[thun-thun]
An eight-year-old girl goes missing in the park; a few metres from where she was playing, blood and several teeth are found by passers-by. SOCO confirm that the blood and teeth belong to the missing girl. SPO4 Lenny Brusko investigates-- there are no witnesses to the attack and abduction, and there is no evidence in the scene that can point to any suspect. However, some witnesses say they saw Manny Yakis-- a known violent sex offender who recently got out of prison-- walking in the park on the day the girl disappeared, but no one can say that there was any contact between the two. Brusko, after 30 years on the job, has a hunch that Yakis is their guy.
Brusko invites Yakis for questioning. Yakis is careful with his answers, giving Brusko nothing but leering eyes and tonnes of frustration. Jack Makoy, the fiscal who will prosecute the case, says they don't have enough evidence on Yakis to secure an arrest or search warrant. With no other leads to follow, Brusko stakes out Yakis' apartment.
After three days of staking out and no other sources of evidence in sight, Brusko is getting very worried, believing that the girl is being harmed in the apartment. Claiming he heard a scream from inside Yakis' apartment, Brusko breaks down the door and finds the body of the missing girl, along with the club that broke several of her teeth in the park, the plastic-lined duffel bag which he used to cary the girl, and the kitchen knife he used to stab her. Brusko immediately arrests Yakis, knocking the perp unconscious in the scuffle. The coroner identifies the cause of death as loss of blood due to multiple stab wounds-- she has been dead for two days. Yakis' semen is found on the girl's body. Confronted with this evidence, Yakis, alone with Brusko and a camcorder in the interrogation room, confesses to the crime. He is then assigned a public attorney for his trial.
During the arraignment, Yakis' defense attorney files a motion to throw away all evidence gathered from Yakis' apartment because they were found in a warrantless search-- he can prove beyond any doubt that the scream Brusko supposedly heard never happened. The attorney also files a motion to throw away the confession because (1) this was brought about by evidence from the warrantless search and (2) Yakis wasn't informed of his rights when he was arrested because Brusko knocked him unconscious. Noting that the police and prosecution have no other evidence on Yakis aside from those gathered in his apartment, the defense attorney files a motion to dismiss the case due to lack of evidence.
Under current rules of evidence, the judge has no choice but to grant the defense attorney's motions to throw away all evidence on Yakis because they are all fruits of the poisonous tree-- they are all tainted evidence. Brusko conducted a warrantless search and lied about exigent circumstances, and Yakis' confession was obtained without him knowing about his rights. The judge will have to dismiss the case due to lack of admissible evidence because he will have to pretend that he never saw the girl's body and the perp's confession. Even if the judge rules that double jeopardy does not apply, Yakis will remain free unless Brusko can find evidence that is not in any way linked to the contents of the apartment.
I clearly understand the need to prevent agents of the State from committing abuses such as warrantless arrests and searches. No one wants to see overzealous detectives overstep the rights of the accused-- allowing one noble detective to overstep the lines will lead to other less noble ones doing the same and before we know it it's as if the Magna Carta never existed. There is a clear need to protect people from the State's agents given their immense powers.
But is it really in the interest of justice and human rights to overlook what we know is true? In the case above, two people committed crimes: Yakis and Brusko. If the judge does not admit the evidence and dismisses the case, Yakis and Brusko will both go free (ok, Brusko will have a bad day, maybe a stern warning from his boss) but the real victims-- the girl and her family-- will be denied justice. How can a wrong correct two wrongs?
I understand that the purpose of the doctrine on tainted evidence is to prevent abuses by agents of the State. But instead of completely ignoring the truth, even from tainted evidence, why not simply criminalise acts that taint the evidence? Say, life in prison for a warratntless search or illegal wiretap, or the errant cop joins the perp in jail for the duration of the latter's sentence. This way the criminal goes to jail along with the abusive agent of the State, giving justice to both the victims and the criminal justice system.
I'm not arguing that the end justifies the means; on the contrary, agents of the State who abuse their power should be punished harshly, even as harsh as the criminals they convict. But I think it's wrong to deny the truth-- to pretend that what we know as true does not exist-- just to punish those who abuse their police powers. In fact, the present doctrine on tainted evidence is incentive incompatible-- those who abuse their powers (i.e., agents of the State) are not held personally liable for their actions. Their punishment, if you can call it that, comes mainly in the form of dismissed cases. There is a mismatch between the crime, which is a personal decision by the abusive agent, and the punishment, which is borne by society in the form of a dismissed case (not to mention a criminal on the loose). We want agents of the State to do their jobs well, within the bounds of the law, and respecting the rights of the accused-- I think the prospect of a long prison term provides more of a deterrent against abuse than potentially dismissed cases.
I can't see how ignoring facts, wherever they're from, helps the cause of justice. It's weak as a deterrent and does not really hit abusive agents of the State where it hurts. Now that we are considering revising the rules on criminal procedure and evidence, what is the philosophical reason not to change the doctrine on tainted evidence and fruits of the poisoned tree? Aren't justice and the justice system served by considering the facts-- all facts-- and punishing all who did wrong?
As I said earlier, I'm nowhere near an expert in legal theory and am not a practitioner of law. If you are, and you think I'm way off, please educate me.
[thun-thun]
An eight-year-old girl goes missing in the park; a few metres from where she was playing, blood and several teeth are found by passers-by. SOCO confirm that the blood and teeth belong to the missing girl. SPO4 Lenny Brusko investigates-- there are no witnesses to the attack and abduction, and there is no evidence in the scene that can point to any suspect. However, some witnesses say they saw Manny Yakis-- a known violent sex offender who recently got out of prison-- walking in the park on the day the girl disappeared, but no one can say that there was any contact between the two. Brusko, after 30 years on the job, has a hunch that Yakis is their guy.
Brusko invites Yakis for questioning. Yakis is careful with his answers, giving Brusko nothing but leering eyes and tonnes of frustration. Jack Makoy, the fiscal who will prosecute the case, says they don't have enough evidence on Yakis to secure an arrest or search warrant. With no other leads to follow, Brusko stakes out Yakis' apartment.
After three days of staking out and no other sources of evidence in sight, Brusko is getting very worried, believing that the girl is being harmed in the apartment. Claiming he heard a scream from inside Yakis' apartment, Brusko breaks down the door and finds the body of the missing girl, along with the club that broke several of her teeth in the park, the plastic-lined duffel bag which he used to cary the girl, and the kitchen knife he used to stab her. Brusko immediately arrests Yakis, knocking the perp unconscious in the scuffle. The coroner identifies the cause of death as loss of blood due to multiple stab wounds-- she has been dead for two days. Yakis' semen is found on the girl's body. Confronted with this evidence, Yakis, alone with Brusko and a camcorder in the interrogation room, confesses to the crime. He is then assigned a public attorney for his trial.
During the arraignment, Yakis' defense attorney files a motion to throw away all evidence gathered from Yakis' apartment because they were found in a warrantless search-- he can prove beyond any doubt that the scream Brusko supposedly heard never happened. The attorney also files a motion to throw away the confession because (1) this was brought about by evidence from the warrantless search and (2) Yakis wasn't informed of his rights when he was arrested because Brusko knocked him unconscious. Noting that the police and prosecution have no other evidence on Yakis aside from those gathered in his apartment, the defense attorney files a motion to dismiss the case due to lack of evidence.
Under current rules of evidence, the judge has no choice but to grant the defense attorney's motions to throw away all evidence on Yakis because they are all fruits of the poisonous tree-- they are all tainted evidence. Brusko conducted a warrantless search and lied about exigent circumstances, and Yakis' confession was obtained without him knowing about his rights. The judge will have to dismiss the case due to lack of admissible evidence because he will have to pretend that he never saw the girl's body and the perp's confession. Even if the judge rules that double jeopardy does not apply, Yakis will remain free unless Brusko can find evidence that is not in any way linked to the contents of the apartment.
I clearly understand the need to prevent agents of the State from committing abuses such as warrantless arrests and searches. No one wants to see overzealous detectives overstep the rights of the accused-- allowing one noble detective to overstep the lines will lead to other less noble ones doing the same and before we know it it's as if the Magna Carta never existed. There is a clear need to protect people from the State's agents given their immense powers.
But is it really in the interest of justice and human rights to overlook what we know is true? In the case above, two people committed crimes: Yakis and Brusko. If the judge does not admit the evidence and dismisses the case, Yakis and Brusko will both go free (ok, Brusko will have a bad day, maybe a stern warning from his boss) but the real victims-- the girl and her family-- will be denied justice. How can a wrong correct two wrongs?
I understand that the purpose of the doctrine on tainted evidence is to prevent abuses by agents of the State. But instead of completely ignoring the truth, even from tainted evidence, why not simply criminalise acts that taint the evidence? Say, life in prison for a warratntless search or illegal wiretap, or the errant cop joins the perp in jail for the duration of the latter's sentence. This way the criminal goes to jail along with the abusive agent of the State, giving justice to both the victims and the criminal justice system.
I'm not arguing that the end justifies the means; on the contrary, agents of the State who abuse their power should be punished harshly, even as harsh as the criminals they convict. But I think it's wrong to deny the truth-- to pretend that what we know as true does not exist-- just to punish those who abuse their police powers. In fact, the present doctrine on tainted evidence is incentive incompatible-- those who abuse their powers (i.e., agents of the State) are not held personally liable for their actions. Their punishment, if you can call it that, comes mainly in the form of dismissed cases. There is a mismatch between the crime, which is a personal decision by the abusive agent, and the punishment, which is borne by society in the form of a dismissed case (not to mention a criminal on the loose). We want agents of the State to do their jobs well, within the bounds of the law, and respecting the rights of the accused-- I think the prospect of a long prison term provides more of a deterrent against abuse than potentially dismissed cases.
I can't see how ignoring facts, wherever they're from, helps the cause of justice. It's weak as a deterrent and does not really hit abusive agents of the State where it hurts. Now that we are considering revising the rules on criminal procedure and evidence, what is the philosophical reason not to change the doctrine on tainted evidence and fruits of the poisoned tree? Aren't justice and the justice system served by considering the facts-- all facts-- and punishing all who did wrong?
As I said earlier, I'm nowhere near an expert in legal theory and am not a practitioner of law. If you are, and you think I'm way off, please educate me.
