From: Corwyn J. Alambar (nettiger@best.com)
Date: Mon Sep 25 2000 - 17:41:27 MDT
> The standard in the United States is that illegally obtained evidence is
> inadmissible. Cops or prosecutors who illegally obtain evidence are
> subject to disciplinary action.
>
> This seems like the wrong solution. What I suggest instead is that in some
> situations of illegally obtained evidence (lack of search warrant or probable
> cause, say, not coerced confession), the court take two steps:
>
> 1. Admit the evidence against the defendant, and
> 2. Criminally prosecute whoever illegally obtained the evidence.
>
> Does anyone know if this has already been tried elsewhere?
One can hear the refrains of _The_Prince_ in the background. There will be
those out there, especially private individuals engaging in the profit (private
detective) or vigilante motives who will continue to gain information
illegally, in the hopes of finding a sympathetic jury that will acquit them
of wrongdoing, or find them guilty of lesser charges.
THe other problem with illegally obtained evidence lies in the fact that
since it was obtained illegally, it is outside the normal investigative
bounds, and therefore is much more difficult to corroborate. In fact, a
large prtion of illegal evidence can only be corroborated through violating
the 5th amendment right against self-incrimination, the last (and only?)
defense against torture and other coercive tactics. And if it is
uncorroborated, there is the window of opportunity for fabrication, even if
it's only of small details that can color the evidence.
Illegal evidence is illegal for a reason. Leave it that way - unless you think
somehow justice is served by lynchings and vigilante actions.
If you want to tinker with the legal system, consider where the other holes
are - a Byzantine and somewhat contradictory tort code, amateur jurors, and
the increasing criminalization of private, consensual acts (so-called
"victimless crimes"). Let's stop trying to make it easier to throw people in
jail.
-Corey
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