About two weeks ago the Powerline Blog carried an article about a recent U.S. Supreme court decision.
From the beginning:
Last week, the Supreme Court, in the case of Herring v. United States, limited slightly the applicability of the exclusionary rule. The exclusionary rule is the doctrine under which evidence obtained in the absence of a proper search is excluded from criminal trials.
My friend Bill Otis, a former Justice Department lawyer and an occasional Power Line contributor, is an expert on the exclusionary rule. So I asked him to comment on Herring. Here is what Bill wrote:
In Herring, a policeman from one county arrested the defendant based on a warrant listed on a neighboring county's electronic database. In a search incident to that arrest, the police found methamphetamine and a pistol (which is a particularly dangerous mix, even when the arrestee is not a previously convicted felon and therefore categorically barred from possessing a firearm). In turned out, however, that there was no warrant, because it had been recalled five months earlier. It remained on the database because of a negligent failure on the part of the reporting county's police department to clear it.
Herring moved to suppress the gun and meth on the grounds that the search was illegal, lacking either a warrant or probable cause. The district court and the Eleventh Circuit refused suppression, however, on the grounds that, with no intentional police misconduct, the fruits of the search should be admitted under the rationale of the "good faith" exception to the exclusionary rule. That exception was adopted 25 years ago in US v. Leon, where the police acted in good faith reliance on a warrant that was later determined to have been issued without adequate grounding in probable cause. Since Leon, and based on its rationale, the Court had also refused to apply the exclusionary rule to evidence seized in good faith police reliance on a court's database showing that a (non-existent) warrant was outstanding. Viewed narrowly, the question in Herring was whether that holding should be extended to errors in police databases.
The Herring Court, with the Chief writing for himself and Scalia, Kennedy, Thomas and Alito, held that the exclusionary rule should apply only where its deterrent effect on police misbehavior outweighs the substantial cost it imposes in letting guilty and possibly dangerous defendants go free.
And from near the end - with the emphasis in the last sentence added:
- This was a missed opportunity for the majority -- but perhaps intentionally missed lest Justice Kennedy forsake the majority for the dissent.
The principal flaw in the exclusionary rule, from the perspective of disciplined constitutional interpretation, is that it does not exist in the Constitution's text. Not for nothing did it take well over 100 years to discover that the Fourth Amendment contains any such nostrum. The Fifth Amendment does, to be sure: It provides that no one shall be compelled to be a witness against himself. In other words, where the witness's decision to speak is a result of compulsion, the prosecution can't elicit his testimony on the stand; the testimony is, in effect, excluded. But the fact that the Fifth Amendment contains a rule of exclusion is scarcely a reason to read one into the Fourth Amendment. Indeed, the opposite is true: Since we know that the Framers knew how to write in an exclusionary rule when they wanted to, the case for allowing the courts to write one into the Constitution is ostentatiously lacking.
If legislatures want to devise such a rule and put it in the Code of Criminal Procedure, fine, let them try. If they do, my prediction is that we'll see a bunch of new legislators after the ensuing election.
- One must wonder what the dissenters think is "majestic" about having yet more criminal trials in which the truth is concealed from the jury. The truth is already concealed plenty -- concealed and simply mangled, most often when the defendant's witnesses lie through their teeth, as they did time and again when I was a practicing litigator. They did this, moreover, almost always with impunity: For some reason, it was considered over the top to prosecute lying defense witnesses after the fact.
The dissenters, however, had virtually nothing to say about the costs to the integrity of the justice system by a rule that allows -- nay, requires -- judges to deep-six the truth. Since the principal mission of a criminal trial is to establish the truth, one must wonder what is so appealing, much less "majestic," about excluding it.
- The dissenters questioned whether anything but an enthusiastic application of the exclusionary rule will have the desired deterrent effect. They noted, for example, that the police could become clever at disguising as negligence a "yes-there's-a-warrant" database where in fact no warrant exists.
So, fast foward to 2011 and a New York Times headline story: Evidence Exclusion Saves Congressman
A congressman whose party affiliation cannot be identified under AP rules was given an absolute discharge and apology by the District Court here tomorrow when it was alleged that the warrant under which a search of his Cape Cod cottage turned up $900,000 in marked cash had been added to the court's on-line records system after the search.
Prosecutors expect an expert witness from Microsoft to testify that the system's security is unbreachable and the warrant therefore extant at the time of the search, but judges dismissed the testimony as hyperpartisan.
Since there seems little question that allowing law enforcement to fake negligence is a bad idea, the question is how justice system officials can best ensure their ability to proactively prove the integrity of their records.
The obvious answer, and the one lots of people are selling, is to put everything on some kind of verifiably write once only medium (like paper) and establish a strong chain of custody for it. The right answer, however, is a temporal database - one in which you can proveably demonstrate the exact state of the system at an arbitrary time stamp. UCB Postgres could do this on SunOS in the early 1990s; and the object relational spinoff, Illustra, could do it on Solaris a few years later - but IBM essentially killed the technology after Informix took over Illustra, suicided on the NT alter, and got its remenants picked up by IBM.
Today there are lots of off the shelf offerings which promise to provide the kind of certainty the courts will need - but there's only one systems foundation capable of actually supporting this in a low cost, low complexity, way: ZFS on Solaris or a BSD like MacOS X.
So what's the bottom line? The court's judgement should serve as a wake-up call to libertarians everywhere - and as a mandate to go find better solutions, meaning ZFS based solutions, to those charged with managing court and police information systems.