November 21, 2010

"Ahmed Ghailani's trial shows that courts should admit all reliable evidence."

Writes lawprof Akhil Reed Amar:
For more than a century after the Declaration of Independence, no court in America excluded evidence in a case like Ghailani's. Indeed, the very point of a public trial was to enable the members of the public to bring forth their evidence and have it heard by the jury and the gallery: "That's the man! And here's my proof." In 1783, an English court famously confronted a situation in which a suspect had in effect been coerced into leading the government to find a cache of stolen goods. The idea that evidence about the cache should be suppressed at trial was dismissed by the court as "novel in theory," "dangerous in practice," and "repugnant to the general principles of criminal law." A later court tartly summarized the traditional Anglo-American rule about procuring evidence: "It matters not how you get it; if you steal it, even, it would be admissible in evidence." In 1822, early America's most learned jurist, Supreme Court Justice Joseph Story, wrote emphatically: "In the ordinary administration of municipal law the right of using evidence does not depend … upon the lawfulness or unlawfulness of the mode, by which it is obtained. … The evidence is admissible on charges for the highest crimes, even though it may have been obtained by a trespass upon the person, or by any other forcible and illegal means."

The Founders' Fifth Amendment did operate as a rule of exclusion: It excluded the government from introducing the defendant's own involuntary testimony. But it did so precisely because such testimony was viewed as unreliable.
Amar isn't saying Judge Kaplan misunderstood the existing case law on the subject. He wants the Supreme Court to change it:
[T]he high court could categorically hold that even if physical evidence must sometimes be suppressed, live witnesses, who, after all, speak based on their own free will, should never be muzzled....

In addition, the Court could expand an important limitation on the exclusionary rule known as "inevitable discovery." This standard allows the government to use evidence that would have eventually surfaced regardless of any coerced confession or improper search. Courts thus should strongly—perhaps irrefutably—presume that a witness's conscience would have impelled him to come forward on his own.
ADDED: A key fact: The government chose not appeal Judge Kaplan's decision to suppress the evidence.

42 comments:

Ralph L said...

It excluded the government from introducing the defendant's own involuntary testimony. But it did so precisely because such testimony was viewed as unreliable

Is this true? I thought it was to restrain government from using perjury traps and coercion on the innocent.

Nels said...

What about protecting the innocent, the suspected, and the falsely accused?

Ann Althouse said...

"What about protecting the innocent, the suspected, and the falsely accused?"

Explain why you think Amar hasn't accounted for those concerns.

Hagar said...

The total exclusion of all "tainted" evidence - to the extent that even the suspicion that it might be "tainted" - is an example of what I call the American syndrome: If a little is good, twice as much is better, and four times as much is just Hallelujah!, brothers and sisters! Try that with your heart medicine, and you will find out different.

If the evidence looks tolerably good it should be presented, possibly with a warning label attached.

If the prosecution has misbehaved, it is the judge's duty to lay a charge against the prosecution and see to it that they are prosecuted for their misdeeds.

HDHouse said...
This comment has been removed by the author.
shoutingthomas said...

Ahmed Ghailani's trial shows that we have been acting like idiots... trying enemy combatants in civilians courts.

Ghailani should have been given a quick kangaroo court trial by a military tribunal. Then he should have been tied to a post in the back yard and shot.

We're incredibly soft. The war is inevitably going to be fought here because we are so soft. Our children believe in fairy tales.

The purpose of war is to instill fear and to extract revenge. That's true for the U.S. too.

shoutingthomas said...

Sometimes I read an article and I think of the good old days of the Soviet Union were gulags abounded, evidence of a convenient sort abounded and they were hamstrung by rules.

Right on time, our most prominent mental retard appears.

Refer to my quote above.

Just like HenHouse to compare the U.S. to the Soviet Union. You can't get any dumber than this fool, who likes to think of himself as a critical intellectual.

Remember, the dumbest statement in the history of the universe was uttered by HenHouse right in this forum:

"Muslims are the new Jews."

This guy has a franchise on stupidity.

HDHouse said...

Ahhh fodder for the right wing today.....oh that silly constitution...gad zooks.


.....Bush's idiocy ....

shoutingthomas said...

Ahhh fodder for the right wing today.....oh that silly constitution...gad zooks.

More utter stupidity from HenHouse, the dumbest jackass on the internet.

The referenced bit complains Bush screwed things up because he treated the defendant like an enemy combatant.

Which he was.

Maybe we should cook the bastard and nice steak dinner and provide him with young whores, HenHouse?

He's an enemy combatant, knucklehead. He wasn't really tortured, but he should have been. Then, he should have been shot.

Maguro said...

Seems like tail is wagging the dog here. Instead of changing how civilian courts operate to accomodate trying guys like Ghailani, why not just try guys like Ghailani someplace other than civilian courts?

Military tribunals, anyone?

HDHouse said...

@shoutingthomas

i'm sorry you don't read very well. the issue isn't the defendant as much as those who were to testify against him and how the information from others was obtained.

i was hoping you knew that and you were just trying to act stupid as part of your schtick...ya' know...acting like a silly ass just to get attention while underneath you are playing the sly fox....but now. You are what you are.

Trying reading for a change.

HDHouse said...

@maguro

military tribunals have a 15% conviction rate give or take. criminal courts are in the upper 80%s. Military tribunals needed a simple majority to convict unlike the all or nothing criminal courts and yet the percentage remains.

what is your point about military tribunals being the better way to go?

don't let the facts hit you in the ass on the way out the door.

shoutingthomas said...

i'm sorry you don't read very well. the issue isn't the defendant as much as those who were to testify against him and how the information from others was obtained.

Information against enemy combatant should be obtained by any means necessary.

Information from informants against enemy combatants should be obtained by any means necessary.

We're at war with the Jihadis, asshole. They're the ones who declared war.

shoutingthomas said...

Let's be blunt about HenHouse, the author of the stunningly stupid quota:

"Muslims are the new Jews."

This SOB is on the side of the enemy.

Why he's on the side of the enemy is anybody's guess.

My guess... he's another dumbass creature of the 60s, and he actually thinks siding with the enemy is clever and rebellious.

HDHouse said...

@shoutingthomas

there was a time, well before you were born as you sound quite young, when there was a fairly constant drumbeat against Jews in this country. They were the butt of anger, resentment and silly prejudices - quotas and red-lining.

Muslims now are fitted into that category by similarly prejudiced mindless fools who think in generalities that float to the surface in a cesspool of mental confusion.

that was the point of "muslims are the new jews"...and your mind, dear child, is the cesspool. understand? verstehen?

HDHouse said...

I stand by what I said. This is Bush's pigeon home to roost.


.....Bush's idiocy ....

shoutingthomas said...

that was the point of "muslims are the new jews"...and your mind, dear child, is the cesspool. understand? verstehen?

You are beneath contempt, HenHouse.

You are a on the side of the Jihadis.

Ann Althouse said...

"Ahhh fodder for the right wing today.....oh that silly constitution...gad zooks.

You think Akhil Amar is right wing?

EDH said...

I agree with Amar that there should be constitituional distinction between the potential exclusion of evidence as to how a witness was discovered, and the exclusion of what that witness will testify independently to in court.

But this threw me:

The jury found the defendant guilty on one serious charge (blowing up the U.S. Embassies in Kenya and Tanzania in 1998), carrying a 20-years-to-life sentence. There was insufficient evidence of guilt on the other charges (killing the people inside).

Was it an intent issue on the murder charges, and is it believed the testimony of the explosives seller would have revealed that intent?

hombre said...

"What about protecting the innocent, the suspected, and the falsely accused?"

Explain why you think Amar hasn't accounted for those concerns.


Isn't it fair to say that proponents of exclusionary rules that exclude otherwise reliable evidence are ok with protecting "the innocent, the suspected and the falsely accused" so long as the guilty are also protected?

Nels is simply caught up in the fiction that the objective of the rules excluding reliable evidence is to protect the "innocent, etc."

HDHouse said...

No Ann, I don't.

The unintended consequence of adjusting the rules of evidence weakens a safeguard against illegal behavior on the government's part. It is a convenience issue that opens a Fibber Magee's closet.

I associate the drumbeat for tinkering with the constitution/laws as a circumvention for the convenience of disregarding laws in place...and something now associated with much of the right wing in this country.

virgil xenophon said...

The philosophical view behind that held by Amur and that of early English/American jurisprudence is derived from that of the Greeks, whose view held that the jury should hear ALL--EVERYTHING--rumor, innuendo, second-hand accounts, etc., under the view that it would be already adrift in the fabric of society from whence the jury came, so would be uppermost in their minds anyway. But of course, this view presupposed a citizenry deeply engaged and knowledgeable about civic affairs and the daily life of the community in order to be capable of separating the wheat from the chaff--which is why they didn't think democracy possible in cities >than, IIRC, 50,000 in population.

HDHouse said...

What guarantee is there that a witness, who has given up information under torture (which makes the information suspect in case you haven't read about it) and subject to who knows what threats and future acts, will tell the truth on the witness stand.

Isn't this just more of someone chirping like a bird and singing the song of the master/controller and that is what is trying to be avoided?

hombre said...

[T]here was a time, well before you were born as you sound quite young, when there was a fairly constant drumbeat against Jews in this country....

Muslims now are fitted into that category by similarly prejudiced mindless fools who think in generalities....


That's a great analogy, HD, because we older Americans remember when Jews were blowing people up all over the world while other Jews cheered in the streets or stood mute. Not!

New "Hussein" Ham said...

"The government chose not appeal Judge Kaplan's decision to suppress the evidence."

Makes perfect sense once you realize that it is the goal of the Hussein Obama administration not to convict any of these people.

The Democrats who control the Department of Justice are on the side of the terrorists.

So, I expect a lot of prosecutorial missteps and incompetence; since that's the best way Barack Obama can ensure that none of these terrorists is ever convicted of anything.

hombre said...

I associate the drumbeat for tinkering with the constitution/laws as a circumvention for the convenience of disregarding laws in place....

Strange that you apparently didn't make that association when exclusionary rules were being written into the Constitution by 20th century judges.

Hagar said...

Virgil,
You are full of it. The jury system came from the nomadic tribes of the north, i.e., the Old Norse and the Anglo-Saxons.
The Greek city states were slaveholding oligarchies and their notions of law and ordere were corresponding. Read some Greek history!

And Hombre,
They did not "write it into the Constitution;" they just saw penumbras emanating from it in the moonlight and thought they were something real.

HDHouse said...

hombre said...
"That's a great analogy,..."

yes it is hombre. what part of "not all Muslims are terrorists" don't you understand?

Hagar said...

And HD,
The Supremes have been "tinkering" with the Constitution ever since this nation first got going in April of 1789. What we are talking about here is "un-tinkering" some of the more objectionable falsework they have built up.

EDH said...

HDHouse said...
What guarantee is there that a witness, who has given up information under torture (which makes the information suspect in case you haven't read about it) and subject to who knows what threats and future acts, will tell the truth on the witness stand.

This is not a case about the testimony of a witness "who has given up information under torture."

Bob Ellison said...

The exclusionary rule has long been extremist in practice. Courts have to choose among competing interests: justice, social stability, and fairness to the accused, among others. The way courts practice the exclusion of evidence upholds the last of these interests above the rest. Society probably doesn't want that, and justice and stability seem to suffer unnecessarily because of our obsession with fairness.

virgil xenophon said...

Hagar/

While I wouldn't quarrel with you that the basic *outline/format* of our present-day court system is roughly derived, in the main, from Germanic/Nordic sources, I was trying to make the point--perhaps unclearly--that in terms of admissibility of evidence Amar's views about evidence/testimony--and that of the English and early American jurists hewed MUCH MORE to the Athenian Greek attitudes about admissibility of evidence than anything else. Perhaps YOU should read more Greek history, my friend--or take an entry-level course in the history of political philosophy. And the fact that Greeks were slave-holders says NOTHING about their concept of juries and their function in society for actual citizens--even Wiki will tell you that..my old professors would be amazed--if they are still alive--at your interpretation of Athenian Greece and their views on government and the laws...

Julian of Eclanum said...

RE Ralph L's and Nels' comments above, the passage from Amar startled me too. Re-reading it, I find he's explaining, not why the coercing of confessions is forbidden in the first place, but why such confessions are excluded as evidence.

What troubles me about all this is that courts depend on the executive to enforce their rulings. When the enforcers of the law themselves violate the law, Judges may not be in any position to punish them. (How often do cops get traffic tickets?) But one thing a judge can do, and, I should think, ought to do, is refuse to validate or take part in an unconstitutional proceeding.

Cedarford said...

Never been a fan of evidence exclusion..like cops should have asked for a warrant before asking a man with blood on his hands after being stopped for speeding to open his trunk - and finding a dead stabbed woman inside lawyers argue should be excludable evidence.

If you want to punish cops for procedural violations or other party in law enforcement like prosecutors abusing law to cook up dubious charges to feather their legal resume with "extra convictions" - punish them directly. Don't reward the criminal.

Kirby Olson said...

CBS News says that one of the jurors apparently sided with Ghailani on the basis of race (innocent by dint of race):

"One clue to the outcome emerged on the third day of deliberations, when juror number 12, a middle-aged black woman, sent a note to the judge complaining that she was being "attacked" by other jurors for reaching a different conclusion than the others that she refused to change her mind. The judge declined her request to be excused, and deliberations resumed. While many trial watchers and participants inferred that note meant the jury was deadlocked, perhaps 11 to 1 for guilt, that was never confirmed, but a leading theory is the result might have been a compromise verdict."

former law student said...

Amar and I are on the same wavelength -- a human being's testimony can't be the fruit of the poisonous tree unless he himself is coerced to testify. He could say anything. He could hurt the prosecution's case as well as help.

former law student said...

While many trial watchers and participants inferred that note meant the jury was deadlocked, perhaps 11 to 1 for guilt, that was never confirmed

Considering the jury acquitted Ghailani of all but one count, doesn't it seem possible that the one holdout was for conviction? "Cmon guys, we gotta find him guilty of something.

mariner said...

shoutingthomas:

Our children believe in fairy tales.

That's not the real problem. The real problem is that so many adults believe in fairy tales.

Crimso said...

"like cops should have asked for a warrant before asking a man with blood on his hands after being stopped for speeding to open his trunk - and finding a dead stabbed woman inside lawyers argue should be excludable evidence."

Reminds me of the episode of "The First 48" where the cops could clearly see, through a front door that was ajar, an apparently murdered woman on a couch. They waited quite some time (hours) for a search warrant before entering. Guess they wanted to make sure everything was done all legal and such.

ken in sc said...

I am glad to see the exclusionary rule being debated by people with legal training—at least some of them. I think the exclusionary rule was adopted by the courts because it was the only remedy the courts had to address the issue. However it is not the only remedy that could have been adopted. Congress and state legislatures could have and should have passed alternative remedies. For example, police and prosecutors could be sanctioned and punished for using illegally obtained evidence, but the evidence, if valid, should be used in court. The exclusionary rule actually punishes the general public for something the police did wrong. A public trial should be a search for truth, not a joust between two champions.

Robert Cook said...

"Makes perfect sense once you realize that it is the goal of the Hussein Obama administration not to convict any of these people.

"The Democrats who control the Department of Justice are on the side of the terrorists.

"So, I expect a lot of prosecutorial missteps and incompetence; since that's the best way Barack Obama can ensure that none of these terrorists is ever convicted of anything."


Spoken like a true idiot.

gregq said...

Please, "the government" didn't chose not to appeal, the Obama Administration chose not to appeal. I think that's because they're more wedded to left wing politics than they are to protecting America. Other's may think differently.

But we should not ever forget that it was President Obama, and AG Holder, who decided to let that case be a failure.

And they most certainly should be judged on that.