Re: A modest proposal (eas Re: Outlawing drug speech - EEK!)

Date: Sat Feb 05 2000 - 16:26:54 MST

In a message dated 2/3/00 2:40:14 AM Central Standard Time,

> Of course, this gives rise to some pretty ugly ambiguities. Is
> improperly handled DNA evidence a technicality or an abuse? If we're
> really very oh-so-sure it's uncontaminated, but the possibility still
> remains, what now? (Ladies and gentlemen of the jury, you are instructed
> to consider the follow evidence as only sort of admissible.) Perhaps
> Greg could speak to the question of whether there could be a clear
> delineation between technicality and abuse?

Lee has correctly cited Mapp v. Ohio as the genesis of modern exclusionary
rule evidence. Like him, I think that the exclusionary rule appears to be
the most effective tool developed to date to curb enforcement abuses. The
Mapp jurisprudence requires a continuing review of law enforcement practice
by the courts to determine whether "fundamental" rights have been compromised
by a particular police practice, but they have to do that sort of thing all
the time.

Of course we DO now have two parallel prosecutorial forces disciplining
enforcement abuse: 1) In the extreme, police officers and other state
officials can be held criminally liable for excessive use of force or other
abuses and 2) the Civil Rights Act of 1964 created both public and private
civil remedies. These limiting factors only seem to be effective in extreme
cases, though.

As for your practical question, I can tell you as a practicing trial lawyer
that evidence is either "in" or its "out" - limiting instructions from the
bench don't do anything but draw additional attention to the stuff you're
trying to minimize. As we say down here in Texas, "Once you've swung the
skunk in front of the jury box, you can't get the stink out."

      Greg Burch <>----<>
      Attorney ::: Vice President, Extropy Institute ::: Wilderness Guide -or-
                                           ICQ # 61112550
        "We never stop investigating. We are never satisfied that we know
        enough to get by. Every question we answer leads on to another
       question. This has become the greatest survival trick of our species."
                                          -- Desmond Morris

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