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."Amar isn't saying Judge Kaplan misunderstood the existing case law on the subject. He wants the Supreme Court to change it:
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.
[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....ADDED: A key fact: The government chose not appeal Judge Kaplan's decision to suppress the evidence.
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.