The Exclusionary Rule and a Note on Torture

I take issue with one piece of Mark’s reflection on torture, which is his in-passing endorsement of the exclusionary rule. I think it’s bad policy and bad law, mainly because maybe the guy is guilty, and putting him on the street is the wrong way to get the cops and DA’s to act properly. Indeed, the “fruit of the poisonous tree” is even bad botany, because some poisonous plants, like the tomato, bear perfectly OK fruit.

Wagner mistreated almost everyone around him, but we haven’t exiled his music. When a scientist fails to credit his students or colleagues, we don’t commit ourselves to act as though the result is wrong; we punish him and look at the findings independently. If it turned out that Vermeer had stolen his paints we wouldn’t take his stuff off the wall. Protestants smashed glorious mediaeval sculpture all through England’s cathedrals: that was wrong no matter where you stand on their theological views of the artists.

The way to deal with illegal searches and beating suspects is to prosecute the people who did them. Setting guilty people free because a cop did bad builds public disrespect for law. I had an engineering professor who taught me as a general principle that the right way to scratch your left ear is with your left hand, not by reaching over your head with your right hand. Judges can’t write statutes, so they have had to use the tools they have to get the cops to behave, but it’s a kludge.

I also wish to say one more time what Mark knows but didn’t mention in his post: morality and efficacy are aligned in the case of torture, as experts in investigation and spying have told us. It gets the victim to say what he thinks you want him to say, which is only randomly related to what you most want to find out, namely what you don’t know and therefore can’t even subconsciously suggest he tell you, more likely he picks up your prompts and reinforces assumptions that are leading you in the wrong direction. It may increase short-term organizational comfort if it clears cases, but to make them stay cleared entails a complicated and uncertain process of suppressing appeals, independent investigations, and the like. Torture is quite likely to lead the whole investigative process in an unproductive direction: it’s unprofessional and inept in addition to all its other vile qualities.

Author: Jonathan Zasloff

Jonathan Zasloff teaches Torts, Land Use, Environmental Law, Comparative Urban Planning Law, Legal History, and Public Policy Clinic - Land Use, the Environment and Local Government. He grew up and still lives in the San Fernando Valley, about which he remains immensely proud (to the mystification of his friends and colleagues). After graduating from Yale Law School, and while clerking for a federal appeals court judge in Boston, he decided to return to Los Angeles shortly after the January 1994 Northridge earthquake, reasoning that he would gladly risk tremors in order to avoid the average New England wind chill temperature of negative 55 degrees. Professor Zasloff has a keen interest in world politics; he holds a PhD in the history of American foreign policy from Harvard and an M.Phil. in International Relations from Cambridge University. Much of his recent work concerns the influence of lawyers and legalism in US external relations, and has published articles on these subjects in the New York University Law Review and the Yale Law Journal. More generally, his recent interests focus on the response of public institutions to social problems, and the role of ideology in framing policy responses. Professor Zasloff has long been active in state and local politics and policy. He recently co-authored an article discussing the relationship of Proposition 13 (California's landmark tax limitation initiative) and school finance reform, and served for several years as a senior policy advisor to the Speaker of California Assembly. His practice background reflects these interests: for two years, he represented welfare recipients attempting to obtain child care benefits and microbusinesses in low income areas. He then practiced for two more years at one of Los Angeles' leading public interest environmental and land use firms, challenging poorly planned development and working to expand the network of the city's urban park system. He currently serves as a member of the boards of the Santa Monica Mountains Conservancy (a state agency charged with purchasing and protecting open space), the Los Angeles Center for Law and Justice (the leading legal service firm for low-income clients in east Los Angeles), and Friends of Israel's Environment. Professor Zasloff's other major activity consists in explaining the Triangle Offense to his very patient wife, Kathy.

13 thoughts on “The Exclusionary Rule and a Note on Torture”

  1. Michael, one reason the exclusionary rule was invented was that almost no other method works. Even today, cops are not convicted when caught on Videotape beating someone up.
    Videotape aside, Remember the recent case where off duty cops beat a black man almost to death for being the date of a white woman . The jury accquiteed the cops on the grounds that there was "reasonable doubt" the the "suspects" "resisted arrest". (I think the scare quotes are all justified here.) The fundamental problem is that a lot of ordinary people have the bought the myth of the tough, maverick good cop who spots the bad guy then beats him up, breaks into house does whatever is needed to get the bad guy. Because of this it is almost impossible to convict a cop of any of these things. So are far as I can tell if you eliminate the exclusionary rule, in pracice you are legalizing these things.

  2. Are you aware in making your reference to Wagner that you did so on the anniversary of his birth?
    And I think I come down on Mark's side on this one. Absent the punishment of the exclusionary rule the temptation for those with authority to abuse it merely because they suspect that you might be guilty is far too great — we need only look at treatment of suspected terrorists by this administration. We have courts and juries to determine guilt, and we are a nation of laws not of men who get to decide what is or is not appropriate without reference to the laws.
    The biological cleverness is hardly apt, and not worthy of you.

  3. The exclusionary rule is necessary for two reasons:
    First, because a "policy" of punishing government employees who obtain evidence illegally runs into the reality of selective prosecution, absurdly light sentences, fines paid under the table… It just doesn't WORK.
    And, second, because even after the punishment, assuming it actually happened, the victim of the constitutional violation is STILL in exactly the same place: Their rights have been violated. The exclusionary rule aims to make them whole.
    Punishment, TOO, might be nice, but in the real world I doubt it will happen very often. I mean, Lon Horiuchi didn't just rifle somebody'd desk without a warrant, he MURDERED somebody, and he's still a free man.
    The government doesn't let it's own be punished, when they've done it's work.

  4. It's hard to believe that anyone not raised in a bubble would suggest that prosecutors and the police department could be trusted to vigorously prosecute other cops for illegal searches. When was the last time a prosecutor was sanctioned for knowingly presenting perjured testimomy? Whaen was the last time a cop was prosecuted for "testilying"? When has a district attorney's career ever been damaged by evidence of prosecutorial misconduct? Only the exclusionary rule destroys the motivation to conduct illegal searches and seizures.

  5. "The way to deal with illegal searches and beating suspects is to prosecute the people who did them."
    Prosecuting cops for illegal searches. What a concept! I've never heard of such a thing — does it actually happen? Heck, they don't even prosecute cops for killing innocent people in wrong-address SWAT raids intended to prevent the flushing of 2 ounces of marijuana.
    So how would this illegal search prosecution thing work? When the cop is searching everybody in a neighborhood for no reason in a fishing expedition to find someone with drugs, do the innocent people who were searched (most of them poor and black) simply go to the police station and say "I was illegally searched — please arrest and prosecute that police officer."?

  6. The exclusionary rule is the equivalent of a refund when the product doesn't work. Prosecuting the police is the equivalent of your right to sue GM in Federal court.
    One thing that tends to get lost is that in most of the cases tossed by the exclusionary rule, the defendant wasn''t doing anything wrong. The police still have the right to search when a crime is plain and obvious, and they still have the right to search incident to a lawful arrest.

  7. And, just for pedantry, we do write certain scientists' research out of the history books when their ethical transgressions reach a certain level. The entire work of german scientists on concentration-camp and other prisoners is not cited, even though it is the only published data on the responses of human bodies to certain conditions. The argument was that (a) it would be unethical to use the results of such barbarous work, even to further ostensibly ethical goals, and (b) if someone was so lost to decency and sense as to perform such experiments, there was no way you could trust what they reported.
    I think that both (a) and (b) are good arguments for the exclusionary rule. Torture and illegal searches by their nature impeach the torturer and the cop-become-burglar. And no one really wants someone with a rubber truncheon making a cost-benefit analysis about whether beating you up this time to get a confession is worth the (probably very small) risk of conviction.
    (I might be willing to change my mind if a condition of entering the evidence were a full set of guilty pleas for the crimes of obtaining it.)

  8. Per above, what other incentive do you propose that would work? Prosecuting the transgressors, as also noted, never happens, and there are strong sociological reasons why it never will happen.
    Growing up, many of my friends' parents (mostly fathers) were big-city cops. During the 1970s they would tell the stories of beating suspects bloody without a qualm, and of course railed against the "commies" who were pushing Miranda-based rules. Came the 80s, they stopped telling those stories (although one suspects the practice continued).
    By the 90s, my friends and I now young adults, most of the old-timers admitted that Miranda and the exclusionary rule were good and had actually improved their police work. By now two generations of cops have trained that way. Why change now?

  9. Commenters right, O'Hare wrong. (But some of your other stuff is very good.) However, here is a strategy to vindicate your theory. The two approaches are entirely consistent. Run them simultaneously for as long as necessary to achieve a status quo where rights-violating police and prosecutors ARE being punished reliably and severely enough to deal effectively with the problem — not just "could be". Then propose abolishing, very cautiously, the (even now sparingly used) exclusionary rule. I'll wait.

  10. Since Mark's post is entirely about confessions, I took his mention of the exclusionary rule to refer to the 5th Amendment exclusionary rule.
    If we're talking about the 4th amendment exclusionary rule, I think there's a reasonable case the court should have said in Mapp "States must either follow the exclusionary rule of Weeks or follow some other policy which deters 4th Amendment violations at least as well. If such a policy isn't established and followed, the remedy will be draconian [something like make it really easy to get convictions overturned]."
    That seems more true to the constitution to me, but would probably look more legislative than Mapp did to others.

  11. I've been proposing for some time now that we allow torture in 'ticking time bomb' scenarios under the condition that the torturer sign a confession to his crimes in advance. If you save Los Angeles from the terrorist nuke, you probably get a pardon; at the very least you know you did the right thing.
    Perhaps we could similarly make the exclusionary rule the standard, but allow a cop who violates procedure to confess to a guaranteed-minimum-sentence crime in exchange for having the improperly gained evidence be admitted.

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