Jens 'n' Frens
Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

"A strong conviction that something must be done is the parent of many bad measures."
  -- Daniel Webster

Monday, June 19, 2006 :::

Andy McCarthy says much of what I feel about the exclusionary rule. In particular,
  1. It provides relief only to the guilty, in exact proportion to their guilt, and
  2. It turns the agency problem between the public and the police on its head, as though justice were a parochial interest of the police.

::: posted by dWj at 10:13 PM

One of the comments I've seen at Volokh is that without the exclusionary rule, cops won't be punished, because their superiors and prosecutors won't enforce any sanctions.

This proposal will sound alarmingly European, but suppose that in the particular case of a police officer having breached the fourth amendment in a case before a judge, the judge were allowed to initiate prosecution (perhaps he could order the prosecutor to file charges, with some ability to oversee that the prosecutor does his job, the case obviously to be heard by another court). Good thing/bad thing? Do you have a better thing?
I think I've suggested to you on a previous occasion that the discovery of evidence (of a proportionate nature to the search executed) count as prima facie evidence that there was probable cause; however the police managed to realize it shouldn't have to be measurable.

Simply making the facts of the case public might help put pressure where it needs to be put. I don't know, but I'm fairly comfortable with the position that the exclusionary rule does more harm than good, and that replacing it with nothing is better than leaving it.
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Idle thoughts of a relatively libertarian Republican in Cambridge, MA, and whomever he invites. Mostly political.

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