girl ipsa loquitur: Fun With Evidence! Email me!

Saturday, September 18, 2004

Fun With Evidence!

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Last time we were together, here at Girl Ipsa, we discussed the Godfather of all law school subjects; Constitutional law. Today we hit that geeky little brother; Evidence. Con law hangs around and keeps it's eye on evidence, as we shall see. But in the end, evidence is its own body of law with some interesting bits.

What I am finding, more and more each day, is that law school actually reconfigures your brain. I'd like to get a CAT scan to see if the changes are visible however I have no "before law school" exemplar of my brain to compare. Perhaps, you'd be wise to argue, Girl Ipsa has always been brain defected. For instance, to the everyday guy (Lets just use my Biggest Fan) the idea of not considering relevant evidence in a trial is tantamount to just telling lies.

Think of it this way: You have reason to believe that one of your kids has drawn on the wall with a sharpie marker. There are two who have motive, access to the weapon, were witnessed at the scene, and can not offer an alibi worth even listening to ("The cat somehow learned to hover 3 feet off the ground AND draw flowers?"). Each one points firmly at the other. The only piece of evidence you have which differentiates these two was illegally obtained. (Marker in the right color, looking a little battered from its recent mural work, stuffed under the mattress of defendant A) Now, here in Mommy Court justice is swift. All the defense objections of lack of probable cause and illegal search and seizure... OVER RULED!

But if it were in real court these issues would bear on the question of admissibility. Not relevance. Surely possession of the criminal instrumentality is relevant to the question of who used it. But sometimes relevant evidence is not admitted. Fan, with his every day guy brain, cares not for these rules. He just wants to know all the facts, admissible or not, so he can punish evil doers. (Note to NEW READERS: Fan is my Dad. I am familiar with the "justice is swift" brand of judicial parenting. A lot of time both defendants would get sentenced because even if we hadn't done this particular crime we had surely done others which went unpunished.) Fan is not a fan of the rules of evidence. But you know me, if it's a rule... well then I like it.

There are two HUGE cases going on in the news right now. Both of them bringing up evidence issues. First, the tragic Peterson trial. The jury was shown photos of Laci's autopsied body. Is this legally relevant evidence? Arguably the judge agreed that is was because I can not image that Mr. Geragos didn't object to its admission.

"Jurors winced and glanced away as they looked at photos of Laci Peterson's badly decomposed body cast in larger-than-life images on a white wall screen."

The question is whether the probative value of the evidence (it's tendency to make a fact more or less likely) is substantially outweighed by it's prejudicial effect. Jurors winced. That's prejudicial wincing. I would guess that the prosecution showed these photos in order to rebut Peterson's claims about how the body ended up in this condition. It was pulled apart, not cut apart. But did they have to be larger than life? Believe me, the prosecution was happy to put this evidence on.

Next we turn, with trepidation, to Michael Jackson and his sick-o criminal behavior. (Girl Ipsa will never sit on this jury 'cause I have a preconceived opinion regarding his guilt & small children of my own. Enough said.) This is our marker issue again, isn't it? Evidence obtained in contravention of Jackson's rights. I am going to hazard the guess that this evidence is relevant. Perhaps even damning. This is the sort of evidence which Fan wants to get his hands on. In this case no decision has been made yet regarding the admissibility of this evidence, only the contention that it was obtained illegally. Nevertheless, the rule is pretty clear:

Evidence obtained in contravention of the law or the defendants constitutional rights is inadmissible against him, no matter how relevant, probative or damning.

Why the heck would we have such a stupid rule? (I am channeling the voice of Fan and people like him every where) Good question.

The answer will illustrate my law school brain damage. We have this rule because it makes all the other rules matter. The 4th amendment right to be free from unreasonable searches and seizures would mean diddly squat if the state could just say "Oops, our bad." and prosecute with the evidence anyway. It is looking to the bigger picture-forest and ignoring the sleazy, disgusting and clearly guilty nature of the individual tree.

Here is my brain damage ~ If the operation of this rule means that Jackson is acquitted because this evidence is not admitted, I will say "The system works." Because my altered brain has learned to value the means over the ends. The conclusion that you reach is only as good as the path you took to get there. Convicting based upon "tainted" evidence is like cheating in a marathon.

I don't care if you crossed the finish line first if you took a cab to get there.


Blogger Christopher Chopin said...

That's the point of the whole system that lets 10 guilty men go free rather than hang the one innocent...

"The means we use to achieve justice are as important, if not more important, than the justice we achieve..."

Felix Frankfurter

11:04 PM  
Anonymous Anonymous said...

According to Professor Gordon of BYU Law School, Criminal Procedure is the course where you "learn enough about the rationale behind the exclusionary rule to defend yourself at cocktail parties." Gordon, "How Not To Succeed In Law School," 100 YALE L.J. 1679, 1696 (1991). This article is a must-read for anyone who has ever gone to law school.

Anyhow, while it is true that the exclusionary rule sometimes allows plainly guilty people to go free (and possibly hurt more people), I feel it is necessary. As my high school mock trial coach once said to me, "cops plant stuff." Now she did not mean that any significant percentage of cops plant stuff, but we all know it has happened and one time is one too many. I believe that if the exclusionary rule did not exist, there would be no other adequate remedy to rectify illegal searches and evidence planting would occur more often. This is far from a settled issue, though. The exclusionary rule is not written anywhere in the Constitution, and some justices on the Supreme Court have indicated a willingness to change the law. The rules of evidence exist to protect the rare person who becomes a victim of police corruption as well as those most unlucky people amongst us who are factually innocent despite a sea of prejudicial evidence that points the other way.

I personally believe in the exclusionary rule, and I am afraid of the consequences that will result if the Supremes decide to axe it.

Charone Frankel
UC Davis Law, Class of 2005

10:43 AM  
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