Protections From Government Overreach And Abuse

 

"The defendant got off on a technicality" is a phrase often heard accompanied by an air of frustration and disbelief. Usually uttered by one who firmly believes an accused is factually culpable, the fact that cases are dismissed or otherwise relevant evidence is excluded from accusatory proceedings appears to them illogical or even immoral.

But, what is the "technicality" that leads to dismissal or suppression? In almost all instances, it is the proven failure of government agents to comply with bedrock rules of our law-governed society.

Those rules, particularly the rights to be secure in our persons, houses, papers, and effects, and against compelled self-incrimination, establish a borderline between an individual's liberty and the power of our elected government. They, and the other provisions of the first 10 amendments to our Constitution, were thought to be essential to the bargain between a citizen's limited consent to be governed and the necessity of keeping the peace. The first, security in our persons, houses, paper, and effects, forbids the government from conducting unreasonable searches and seizures and is provided in the 4th Amendment to the United States Constitution. The second, the right not to be a witness against oneself, is provided by the Constitution's 5th Amendment.

The 4th and 5th Amendments were designed to protect citizens of the newly formed United States of America from the unchecked exercise of government power that the former colonists had suffered under the tyranny of English kings and their lackeys. Using so-called "writs of assistance" the Kings Georges II and III authorized royal agents to search anyone, anywhere and anytime. Extracting confessions through torture was not uncommon. The drafters of our Constitution had these experiences fresh in their mind when they wrote the 4th and 5th Amendments. They were "fashioned against the background of knowledge that unrestricted power of search and seizure could also be an instrument for stifling liberty of expression."

A desire that our government agents comply with restrictions on their own power was clearly the aim of the Bill of Rights. The tricky part is how to compel that compliance and sanction violations of these fundamental protections. What are we to do if, absent a warrant, the police break into a private home, arrest the occupants, search and seize their belongings and happen to find evidence of a crime? Or how do we prevent police from obtaining involuntary confessions through threat or coercion?

Assuming it is as important, if not more so, for the government to act within the confines of our law as it is for citizens, the imposition of a sanction for such violation does not seem unreasonable. The sanction created by courts, and in some instances by Congress, is the "exclusionary rule."

The exclusionary rule applies to evidence the government has obtained illegally. It functions by court order prohibiting the government from using the illegally procured evidence against an accused whose Constitutional rights have been violated. Thus, from time to time, and only upon proof of unlawful collection, evidence, even confessions, is excluded at a criminal trial. Depending upon the importance of a given piece of evidence to the government's case, a suppression ruling might require that a case be dismissed--the dreaded "technicality."

But the notion is that police will not jeopardize an investigation by violating Constitutional provisions knowing that a violation will deprive the prosecution of evidence. In other words, the exclusionary rule deters police misconduct.

While the exclusionary rule currently binds states when a demonstrated 4th or 5th Amendment violation is proved, that has not always been the case. Prior to 1914, it was not universally applied even in Federal 4th Amendment cases. States were free to admit evidence in their criminal proceeding regardless of the method by which it was obtained. It wasn't until 1961, well into my lifetime, that the United States Supreme Court ruled that the 4th Amendment and the exclusionary rule applied to the States.

The exclusionary rule remains subject to fierce criticism from many. They argue rights to private action (suits against police officers) or internal police discipline provide adequate safeguards against official misconduct. It is hard to argue that the exclusionary rule's efficacy as a deterrent is perfect--witness the recent home invasion cases by the Newport Police Department which resulted in suppression orders.

The sanction, however, is well known. Well trained peace officers are aware of it and conduct themselves accordingly. The gain? Enforcement that abides by our fundamental notions of Freedom and Liberty.

David Sleigh has practiced law in the Northeast Kingdom for 30 years. His practice focuses on criminal defense, civil rights and personal injury law.

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