Exclusionary Rule Follies And The Beginning Of The End Of The Rule Of Law

It’s what criminal defense lawyers think of when the subject of the 4th amendment comes up.  Suppression motions.  Suppression hearings.

Suppression of what?  Evidence.  Evidence tending to show that a defendant in a criminal trial is guilty of the offense he is charged with.  Suppressing it meaning that it will be inadmissible at trial.  The jury will not hear or see it, if it was the product of an “unreasonable search and seizure”.

Hard to believe it wasn’t always like this.  Scott Greenfield runs through a little history for us, Mapp v. Ohio being this “landmark” Supreme Court this or that heralding this or that, the occasion for Scott being that some other lawyer blogger had noted a significant case from the state of Florida dealing with, you know, a suppression motion, which every state court now has some version of because years ago that Mapp case said they had to.  Before Mapp, the exclusionary rule applied only in federal courts.

Mapp has never been overruled.  Explicitly.

But then again it was never really “the law”, in the sense that it was followed.  It has never been followed.  Oh, courts entertain suppression motions, all right.  Sometimes – God only knows why – they actually hold suppression hearings at which witnesses testify and what not.

But they never actually suppress evidence tending to show that the criminal defendant is guilty.  And I’m going to stick with “never”, because two out of every five thousand times is effectively never.

Few rulings have ever undermined the rule of law in practice as much as Mapp.  Greenfield recounts that in the wake of that ruling, police adapted to it by lying about the circumstances under which evidence was obtained so that it would be admissible anyway.  When one lie stopped working – the “dropsy” lie – they moved onto other ones.  The recent Florida decision prompting the Greenfield article noted that the new “dropsy” is “consent”, as in the defendant consented to the search that turned up the incriminating evidence.  The most inherently incredible police testimony establishing consent is routinely accepted by trial courts even when it is flatly contradicted by other, more credible proof.

The Florida decision notes that “Without an unbiased and objective evaluation of testimony, judges devolve into rubber stamps for law enforcement.”  Sweet.  Notice how it isn’t even necessary to state which direction the bias can be expected to go.

The Florida court was supposedly “concerned” and remarked that there was some question about the “…fairness of some trial court proceedings”, but it ultimately affirmed the lower court.

The lawyer blogger who originally posted about the Florida case thinks “…every criminal defense lawyer should read that opinion.

Why?  Is this what it has come to?  A criminal defense lawyer loses a suppression motion pretty much the same way every other goddamn suppression motion is lost except that this time an appellate court said that it was “concerned” about police lying, but apparently not concerned enough to do anything about it other than toss off some meaningless obiter dicta.

Big fucking deal.

The reason you can blame this on Mapp is that before Mapp police might have lied here and there but they believed they were justified and felt bad about it.  Since Mapp it’s been more like the police lie routinely and don’t believe it needs any justification and they don’t feel bad about it, because the whole system is a bunch of lies and indeed Mapp is a lie.  And in fact Mapp is a lie.  There was no justification at all for finding that the exclusionary rule applied to state courts.  The Supremes just made that up.

Now, after five decades of poisoning the well, police lie all the time and not just at suppression hearings, and most of the time they don’t even have to bother to lie because the judges will have predetermined that the search and seizure fit into some “exception” or other to the application of the exclusionary rule, of which there are about, oh, three or four thousand.

I’m kidding.  There’s barely a hundred.

I’ve asked Greenfield in these pages on numerous occasions whether he might consider the possibility that the parlous state of criminal justice in the United States has something to do with him, one of its well established paragons on the defense side.

He and the criminal defense bar focus on the police lying, and police lying is certainly unacceptable.

But the judges lied first.

 

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