In the 1961 case Mapp v. Ohio, the Supreme Court declined to protect the the possession of pornographic material, but instead decided to exclude all evidence gained through unconstitutional searches. Last month, the Supreme Court revisited that decision in Herring v. United States, where they reconsidered the rule of evidence that excludes evidence gained unconstitutionally. Exclusion, Chief Justice Roberts wrote, “is not an individual right….” As a result, some have argued that the Court has significantly weakened the exclusionary rule, and that exclusion will recede into the background, joining the plethora of institutions designed to prevent corruption rather than protect the accused. This is sure to deprive the writers of Law and Order of some legal intricacies to mis-explain, but as I shall argue, the Roberts court has not yet overturned Mapp. At worst, this decision is a mixed defeat: though a major legal protection has been weakened, it may not have been warranted to begin with.
Frankly, a lot of the hubbub is a bit premature. Herring dealt only with the admissability of evidence gained due to negligence of a third party, when a search relies upon a discharged warrant that was left outstanding in another county’s database. Chief Justice Roberts wrote:
“To trigger the exclusionary rule, police conduct must be sufficiently deliberate that exclusion can meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the justice system.”
Though I don’t much like his style, Chief Justice Roberts is right in this, at least: exclusion is not a right, but rather a remedy for the violation of a right, and remedies must be equitable. When we speak in terms of rights, we can lose track of this. The privacy right partially contained in the 4th Amendment is not absolute, nor is it the sole dispository element in a case. At worst, this would allow evidence whose exclusion would be too ‘expensive’ to the justice system, though we are given no guidance on this kind of cost-benefit analysis.
The Wall Street Journal recently published an op-ed proclaiming that the exclusionary rule needs to be weakened. The WSJ charges the Warren Court that decided Mapp with suborning perjury, noting:
“Immediately after… Mapp v. Ohio, studies showed that the number of annual drug arrests in the U.S. — most cases are prosecuted in state court — didn’t change much but there was a sharp increase in officers claiming that suspects dropped drugs on the ground. ‘Either drug users were suddenly dropping bags all over the place or the cops were still frisking but saying the guy dropped the drugs,’ says John Kleinig, a professor at John Jay College of Criminal Justice.”
The Culture Exclusion Built
One thing you rarely hear about in all the police procedural dramas is that policing is a relatively new profession: the public employee who investigates crimes, captures law-breakers, and investigates disturbances is basically a French invention from the late 17th and early 18th centuries. As such, the profession’s development has coincided with the development of democratic governments and of state recognition of individual rights. As the state has become more and more interested in ruling its citizens lives rather than protecting and expanding its borders, police powers and responsibilities have increased, and liberal rights such as those spelled out in the 4th Amendment or derived from its explicit provisions have served to partially bolster individual freedoms from police interference.
In truth, the issue of police perjury isn’t directly relevant to the question the Wall Street Journal was really asking. The question isn’t: “should there be an exclusionary rule at all?” It’s: “Do the benefits of the exclusionary rule come at too high a cost?” Obviously, just because some police officers are tempted to lie to assure a conviction doesn’t mean we should make it easier for them to get a conviction without lying. However, the costs may be higher than a few tall tales of bungling crooks: it have made our police forces more corrupt.
In the early nineties, New York City took official notice of the tendency towards police deception in drug seizure cases, and of the close-lipped culture of corrution that it engendered. The Mollen Commission found that perjury was widespread on the NYPD, and that it was characterized by “brutality, theft, abuse of authority and active police criminality.” The report revealed that corruption and brutality cases had been hidden from the public record by Internal Affairs officers acting under the pressure of this culture of permissiveness and self-protection.
New York City responded to the Mollen Report by forming a civilian agency to process complaints of the type the Mollen Report cited, one that would be independent of the police culture and able to act fairly and publically in these matters. Right after I graduated from college, I went to work for that agency, the Civilian Complaint Review Board. The job was fascinating for a recent graduate from a left-leaning liberal arts school: I interviewed police officers almost daily, dealt with the correctional system to find complainants and witnesses, and got to peak inside the casework of Giuliani’s NYPD, seeing the effects of the famous ‘broken windows’ theory in action. I met a lot of people whose lives were administered by city government, whether the city was their boss (cops) their landlord (public housing inhabitants, the homeless) or their jailor (convicts, immigrants). My favorite bad agency name: the NYC Department of Health and Mental Hygiene.
Most of my work centered around allegations of police brutality and unlawful searches and arrests, so I spent a lot of time studying legitimate uses of force and New York State”s interpretation of the 4th Amendment protection from unreasonable searches and seizures. Though these are two areas in which modern American police forces tend to falter, the cases I reviewed were rarely substantiated. For the most part, this was because the officers acted, by all accounts, appropriately. Usually, the facts were not in dispute, and they indicated that the officers effected searches and arrests on the basis of probable cause and using the minimum necessary force. Complainants frequently stated that they resisted arrest, and that the officers struck or wrestled with them in order to gain control. So far, so good: honest officers acted honestly and within the bounds of law. (We can have a discussion about the legitimacy of the state’s monopoly on violence another time.)
The vast majority of the officers I dealt with were clearly blameless in the allegations I investigated, so I do not want to give the impression that my time with them prejudiced me against them. I did, however, notice some trends in these cases. Phrases were repeated: “he flailed his arms and legs,” “I observed a hand-to-hand transaction.” Sometimes, suspects even dropped their drugs and ran. Of course, I cannot say for sure whether these were lies, but I can say that many officers fit complicated events into a simple fact pattern that they had learned by heart. Asked for details, they would return to the general framework, or protest that they could not recall details. Police officers in New York carry memo books in which they store the quotidian details names, dates, weather, and time of day, sometimes even the details of radio calls or arrests. Generally they fill them in on breaks, however, so an action-packed situation that left an officer in the hospital might not necessarily be recorded in a timely manner or when the event was fresh. These officers had gaps in places we all might fail to recall: “Were you in front of him or behind him?” “Which hand?” “What did it look like?” “Where was he standing?” So they filled in those gaps with standard replies. A narcotics team that does a dozen arrests a day can’t be expected to remember the details of just one, right?
This form of ‘standardization’ is deceptive even if the intent to mislead is not always there: the officer knows his account does not correspond to the facts of the matter. The real problem is that the culture of standardized testimony serves to hide the real misconduct. Perhaps the officer’s story approximates the truth, perhaps the truth would cause trouble, or perhaps criminals are simply creatures of self-destructive habit. If every officer falls back on the standard testimonial forms in difficult situations, using fact patterns that have been tested in court rather than the weird and woolly reality, we can’t really tell the difference between forgetfulness and criminality. Compare the connotations of the ‘Thin Blue Line’ [of heroes] and the ‘Blue Wall of Silence’ and you see the problem: the Blue Line stands between anarchy and civilisation, while the Blue Wall stands between officers and accountability. When you find yourself on the far side of that line, you’ve gone wrong.
Given my interaction with my superiors and colleagues, I believe some of these patterns were widespread. Yet in a few cases that I managed to prove that false statements were made, I still could not prove intentional deception. Even when I found independent, well-educated witnesses (for education and a clean criminal background are important credibility boosters) to corroborate the complainant’s testimony, or when I caught the officers themselves in self-contradictions or identified inconsistencies between officers’ testimonies, there were still alternative explanations for self-contradiction and inconsistencies. Only rarely did we charge them with giving false official statements: the effective standard of proof for such a charge was unbelievably high. Most of my colleagues developed a twisted version of the Enlightenment’s epistemological skepticism: “I do not know what I cannot prove to the satisfaction of my superiors and an administrative law judge.” Yet though our findings rarely reflected it, there was a fact of the matter in each of the thousands of police-civilian contacts we dealt with each year. Somebody was lying, sometimes it was the police, but our evidence couldn’t bear the burden of proof.
The problem is built into the criminal justice system. Until or unless we develop holographic surveillance for every law enforcement officer in the country and replace testimony with cameras, we must assign privileged credibility to law enforcement officers if they are ever to achieve convictions. Beyond the monopoly of violence, a working police force requires the monopoly on credibility in order to function legitimately. This is an interesting case of potential epistemic injustice or testimonial privilege (as Miranda Fricker would put it.) It takes overwhelming counterevidence to outweigh a police officer’s testimonial privilege; I like to compare it to the procedural injustice under Islamic law, Shari’ah, in which two female witnesses are needed to convict one man. Our background institutions grant this double credibility to law enforcement officers because to do otherwise would be to undermine their investigative function. In order for us to trust the results of an investigation, we must first trust the investigator. In the absence of an external interest, a connection with the victim or the accused, we assume that officers will tell the truth, purposely ignoring the fact that they have an interest in getting the evidence they have gathered into the court’s record and under the consideration of prosecutor or jury, just as they have an interest in avoiding the the consequences of substantiated accusations of improper uses of force. By the same token, independent witnesses deserve no more credit than a law enforcement officer, especially since we rarely fully investigated their possible motives. Yet anyone who has been close to this process has to recognize the inadequacy of our presumptions in favor of police officers, which is why the perception of police lying is widespread even among those who work in or with law enforcement.
So if the WSJ is right, the 4th Amendment does little to protect the majority of citizens from unconstitutional police interference, for the simple reason that police officers lie or alter their narratives to render unreasonable searches reasonable. The absoluteness of the exclusionary rule propagates a culture of acceptable deception on police forces, who sometimes allow this habit of deception to slide into corruption. Herring thus helps to ease the major tension in a law enforcement officer’s professional life, between telling the truth and getting the bad guy. We ought thus to welcome it.
The flashy and inefficient trial by rhetorical combat is dying anyway. We see it so occasionally that moments of full evaluations of law enforcement credibility, like the one we saw in F. Lee Bailey’s cross-examination of Mark Furhman in the OJ Simpson trial, come to stand in the public imagination for all trials. Real trials are usually quite boring: more trench warfare than duel, without much effective challenge to police testimony.
That’s why the true power in the criminal justice system lies in the hands of the prosecutor. In a recent discussion on Metafilter, I was reminded that most (90%) of all criminal cases aren’t settled in front of jury, but rather through plea bargaining with a prosecutor. Since most convictions result from plea bargaining, evidence exclusion or inclusion is just one of many factors that the parties consider as they try to come to a mutually satisfying deal, even when one of the parties is violent criminal and the other is a prosecutor representing the state: excluded evidence strengthens a defendent’s bargaining position, and a weakened exclusion rule weakens that bargaining position. Consider this description from the acting executive director of the CCRB during my time there, a woman named Florence Finkle. She had been an Assistant Distict Attorney in Manhattan, and made a name for herself prosecuting police corruption in the ‘Dirty Thirty,’ Harlem’s 30th Precinct:
…as a prosecutor you’re able to consider the rights of the defendant, the victim and the justice system as a whole. It might be trite, but it really feels like you have the power and authority to do justice.
The prosecutor sees herself acting as a magistrate, evaluating all the evidence and taking a holistic view. Unlike police officers, prosecutors have been around since the very first trials by jury in Athens. The professional ethos of prosecutors is clearer, and less caught up in the contingent developments of the modern nation-state. In many ways, it serves as surer footing for decisions about free and just institutional design than the plea bargain’s prisoner’s dilemma or the trial’s rhetorical combat. Of course, I’m prejudiced here. In addition to the young and honorable lawyers I knew at Vanderbilt who went on to become prosectuors, I will always remember Flo with awe, the way law students remember that one professor who used the Socratic method to shame them into learning. Flo was the most capable and scary person I have ever met. In my final interview for the job, her interrogation had me so confused I could barely remember my own resume. I am absolutely convinced that she used that power for good, that she had a carefully-tuned sense of justice and applied her tremendous talents to achieving it. I am untroubled by the idea that she or someone like her would be evaluating all the factors related to the disposition of a defendant’s case. I trust her to be fair, and as a nation we have increasingly placed our trust in prosecutors like her to make most of the decisions that determine the outcome of a case.
Unfortunately, not every prosecutor manages to live up to Flo Finkle’s justice-dispensing philosopher-king. No one knows this more than prosecutors how dishonest law enforcement officers can be. Yet they’ve done little to deal with the problem themselves. Amongst criminal lawyers, the perception of police perjury in drug seizure cases is quite high:
“According to a 1992 survey, prosecutors, defense attorneys and judges in Chicago said they thought that, on average, perjury by police occurs 20% of the time in which defendants claim evidence was illegally seized.”
Consider this Alan Dershowitz article from 1994 which responds to the Mollen Report:
I have seen trial judges pretend to believe officers whose testimony is contradicted by common sense, documentary evidence and even unambiguous tape recordings. And I have seen appellate judges close their eyes to such patently false findings of fact. Judicial acceptance of obviously false testimony sends a subtle yet powerful message of approval, if not encouragement, to perjurers. […]
Many trial judges were prosecutors, and they know perjury when they hear it — and they hear it often enough to be able to do something about it. Yet many tolerate it because they think most victims of police perjury are guilty of the crimes for which they stand charged.
Dershowitz argues that prosecutors frequently encourage the kind of deception that drove us to reconsider Mapp in the first place, and that judges, who ought to know better, accept these lies without challenge. The standard testimonial forms come from prosecutorial coaching and willful judicial blindness. Ultimately, the culture of police perjury is attributable to that guidance and inattention. This is doubly troublesome, because while the police officer cannot control whether his actions are reviewed by a jury or even the Supreme Court, a prosecutor can manage things from behind the scenes through plea bargaining to avoid accountability. Without adequate remedy, what is to prevent collusion between district attorneys and police? Political pressures on DAs who must stand for re-election are exactly the sort of majoritarian trumps to individual rights that drive the liberal/progressive impulse.
Of course, prosecutors don’t truly act as sovereign deciders: during each of those plea bargains, a defense attorney reviews the testimony and the evidence, and has an opportunity to protest that a particular piece of evidence would likely not be admitted, but the evidence excluded is likely to be immaterial to the case, especially when we factor in police dishonesty. Yet public defenders are notoriously overworked and this kind of research is time consuming and slow. The difficulties of ferreting out the true details of a search mean that public defenders may miss many evidence exclusion opportunities that private defenders will discover. Exclusion thus serves to further privilege defendents who can afford private representation, perpetuating a two-track justice system.
A weakened or eliminated exclusion rule thus levels the playing field by simplifying the public defense attorney’s workload and potential complications, perhaps (PERHAPS!) allowing her to economize by paying greater attention to truly deserving cases where the prosecutor has made an error. Though this equality may come at too high a price, we are considering the background instituions of the nation here, where distributive justice (of public goods and of remedies for public bads) is trumped only by fundamental liberties. The kind of search you have to lie about, the kind that involves deliberately ignoring a person’s constitutional protections, would still be excluded on this view, since exclusion would deter that kind of behavior if it could be discovered.
This is a long way from the adversarial criminal justice system that we want, but perhaps it is the best possible approximation of the system of calm and patient attention to evidence and testimony that we deserve. Rather than pit a zealous and cunning defense against the state’s righteous might, judges and representatives of the interested parties could engage in collaborative fact-finding and remediation: rehabilitation or retribution.
The problem with procedural remedies in criminal justice is that they don’t go to the root of the problem: we want to punish criminals, and we want to protect civil rights, and those two goals are sometimes at odds. Though police usually stand between the strong and the weak and serve as the best possible antipower to domestic violence, corporate thuggery, and street crime, we are still offended by the blatant violations of privacy and dignity that arbitrary police searches entail.
As I have said, rights-regimes cannot be structured without consideration for the insitutional effects they will wield. The problem with the legal applications of the Kantian account of autonomous right-bearing subjects is that rights like privacy exist within a system that must trade them against other rights, like safety. We need some remedy that fits this violation of a civil rights and individual autonomy, but we will not countenance the loss of safety. The criminal justice system has to balance defendents’ rights against victims’ rights. Even police officers have relevant rights, here, since they ought not to be asked to sacrifice their right to self-defense as a condition of their employment.
Yet this is precisely why rights-talk gets us nowhere: alone, a right can be absolute, dispositive. When set in conflict with another right, both rights become simple values to be traded against each other. In the marketplace for rights, everybody loses. We win a right to a trial by jury, and the state simply raises the stakes of conviction, adding tools to the prosecutors arsenal until plea bargaining is preferable (in 90% of cases!) to placing the enhanced, unbargained charges in front of our peers. We spend so much energy and ingenuity struggling for the recognition and defense of a fundamental right to adequate counsel, and the state simply funds public defenders inadequately. Black Codes are eliminated and replaced with inequitably enforced drug laws. We are considering the background instituions of the nation here, and all we know for sure is that our present institutions are highly prejudicial, tremendously expensive, and considered unjust by many who spend their lives trying to work within them.
Many of our intuitions about exclusion are guided by the fact that the rule is caught up with ‘victimless’ crimes: drugs, pornography, prostitution. I’d like to conclude with another kind of evidentiary exclusion: the relationship between spousal privilege and domestic abuse. In the 19th Century, just as courts were repudiating the husband’s right to corporeal punishment, they began to innovate a number of evidentiary protections for husbands, including the oft-cited claim that spousal privilege inheres in the defendent rather than in the witness, allowing husbands to forbid their wives to testify against them, all in the name of protecting marital intimacy. This was clearly a violation of the principles underlying the rules of evidence, and we’ve long since closed those loopholes. However, we still see a similar issue in the state’s willingness to drop prosecutions when battered partners refuse to testify against their abusive spouse. Yet it does not foster marital intimacy to preserve the spousal privilege in the face of marital abuse.
In both lying and exclusion, we hamper the best epistemic system we’ve ever had, whose capacity to get it right is the foundation of our faith in democracy: the jury, the ultimate guarantor of criminal justice. Exclusion rules are a dangerous remedy for exactly the same reason that law enforcement dishonesty is dangerous: they both destroy the foundation of a jury’s deliberation. Juries and citizens depend on two things for their determinations: adequate access to information and the inherent advantage of deliberation and group-decision making. We ought not to undermine that. “More Light!”