It also means that if a defense attorney suggests on cross examination that it was unfair of the arresting officer to not allow the defendant to practice the Field Sobriety Tests even once before deciding he'd failed them and putting the defendant in jail when the officer got to practice administering the tests numerous times before the officer was tested, the officer may not truthfully reply that the defendant practiced at least twice when he was previously arrested and convicted of drunk driving.
Another rule is the exclusionary rule. Established by the Supreme Court in Weeks v. United States (web link below) it was intended to deter police misconduct by holding that evidence seized in violation of the Constitution is inadmissible at trial. The Court subsequently made the rule binding on the states in Mapp v. Ohio (web link below).
Deterring police misconduct is a good thing. While some argued there were other means for doing that rather than giving a criminal defendant a windfall of suppressing relevant, truthful incriminating evidence (civil lawsuits, job actions, etc.), the Supreme Court decided such deterrence was worth sacrificing the truth.
In United States v. Leon (web link below), however, the Supreme Court decided the exclusionary rule was being used by defense attorneys in a way the Court never intended after a U.S. District Court suppressed drugs found in Leon’s apartment pursuant to a warrant. Another judge subsequently ruled the issuing magistrate had made an error. There was no suggestion of police misconduct.
The Supreme Court could find little benefit in applying the exclusionary rule where there has been good-faith police reliance on an invalid warrant. "The exclusionary rule is designed to deter police misconduct rather than to punish the errors of judges and magistrates." The Court considered it unlikely that the rule could have much deterrent effect on the actions of truly neutral magistrates with whom a higher judge later disagrees.
The good faith exception makes good sense. But, unlike the exclusionary rule, the Supreme Court has not made it applicable to the states.
This means that in states that have not adopted the good faith exception, such as Alaska when this author was a state prosecutor there, police can do everything right in the investigation, obtain a warrant, and, if a trial judge later disagrees with the magistrate's finding of probable cause, all of the relevant, truthful evidence seized pursuant to that warrant is suppressed.
Permit two points regarding this last suppression of the truth:
- Magistrates and judges are lawyers and you can't get two lawyers to agree to kill a rat in bath tub. Why do you think the Supreme Court, confronted with the same facts and case law and lots of time and briefings and arguments of counsel, disagrees 5 to 4 on matters that officers may have only moments to decide?
- What police misconduct is deterred in this instance? Obtaining a warrant from a neutral magistrate?
It is not the intent of this article to take issue with defense attorneys, the rules and court decisions that insist a criminal trial is not about the truth, although the author encourages readers to do just that. (Okay, I admit taking issue with states not adopting a good faith exception to the exclusionary rule)
Rather, the intent is to clarify misperceptions that a criminal trial in our justice system as it now stands is intended to determine the truth of whether a defendant committed the crimes charged.
Next on Officer.com...
Stay tuned next month as we return to the legal and ethical parameters of police deception. Unlike one reader's comment to Training Cops to Lie - PT 2 that anything goes on the street as long as you tell the truth in the courtroom, it's much more complicated. Officers need to understand the ethical and legal parameters and the possible attendant consequences to using deception to investigate criminal activity.
What is considered legal can depend as much on the jurisdiction in which you investigate crime as it can on the investigative tactics used. And what is considered ethical can depend on whose ox is being gored.
Keep those reader comments coming.