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

From: Evan Brown (
Date: Sat Feb 05 2000 - 18:45:26 MST

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

> 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
> by the courts to determine whether "fundamental" rights have been
> by a particular police practice, but they have to do that sort of thing
> the time.

Certainly I would agree, even with the negative impact the exclusionary rule
may have on law enforcement. It provides a rather nice example of how,
particularly with social/political questions, there are no solutions, merely
continuing struggles to find the least of many evils. "Democracy is the
worst form of government, except for all the other forms." Ol' Winston did
have it right. And the free society necessarily gives rise to a slew of
problems to which there appears only band-aid solutions. C'est la vie,
terrible et libre.

> As for your practical question, I can tell you as a practicing trial
> 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."

As I am not a lawyer, this has always struck me as one of the necessary
absurdities of judicial policy. Instructing a jury to ignore certain
outburst from witnesses or counsel seems...well...kinda crazy. But, I can't
imagine a better way, though as Eliezer invariably reminds us (and rightly
so), there _is_ a better way. Our obsession with finding and retaining a
sterile jury is a noble intent, but impossible in reality.


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