Exclude The Truth And ...


By William Westmiller

Justice is terrorized when a citizen, even the President, fails to tell the whole truth to a grand jury. What, then, can we think of a judicial system that intentionally hides the whole truth from a jury? This actually happens every day across the country and at least weekly in dramatic recreations. It's called the exclusionary rule.

For the past half decade, courts have discarded factual evidence of a crime whenever it was obtained through an illegal search or seizure. The rule was established as a judicial deterrent to bad police conduct that violated a person's Fourth Amendment rights to a warranted search. If it were simply an issue of rights versus powers, or citizens versus police, we would rightly restrain excessive police powers. But it's an issue of consolidated crimes, where one crime is pardoned by the commission of another. In essence, the exclusionary rule contends that two wrongs make a right.

Our pursuit of justice has devolved to the point where the best defense is an offensive evasion. Rather than showing contrary facts or lawful conduct, defendants attack the prosecutor, hoping to show there are wrongs on both sides of the contest. Defenders of the President don't defend, they accuse Ken Starr, hoping to establish an exclusionary rule to impeachment. If there's a murder, don't defend the innocent, defend the guilty by showing fault in the pursuit of evidence. Throw out truth, throw out justice, throw out any manner of civil conduct. If everyone is a sinner, who will cast the stones?

The exclusionary rule was a judicial effort to fill a legislative void. Rather than carving laws that properly punish violations of civil rights, the Congress deferred to Executive police authority, unfettered by any constitutional restrictions. The courts could not draft those proper laws, so they found a feeble mechanism to at least discourage the most flagrant violations... but only when they were perpetrated against criminals. Innocent citizens benefit not a whit from the rule, being left to battle state atrocities by their own means in a civil court. This is injustice compounded beyond injustice.

Supporters of the rule cite multiple horrors of gross police atrocities committed against innocent parties. But they evade the whole truth, that it is exactly those innocent parties who are explicitlyexcluded from the benefits of the exclusionary rule. The entire proposition of excluding truthful facts from a trial flies in the face of common law principles established over centuries. Nevertheless, defenders of the rule imagine that they are upholding a proper separation of constitutional powers between the judicial and executive branches. They ignore that third, separate and distinct, legislative power - and obligation - to establish proper rules of evidence under the law and to provide proper penalties for police misconduct. There is no doubt that Congress has shirked this critical duty. There is, in current law, no other effective defense against police terrorism except the exclusionary rule. For filling the void, the courts should be applauded. Federal legislators have failed, and should be roundly condemned.

The Constitution grants the legislative branch broad authority to make all necessary and proper laws to carry into execution all the powers stipulated in the Constitution, including the enumerated rights specified in the Amendments thereto. The Justice Department has been granted the power to pursue violations of a wide range of civil rights (witness the Rodney King prosecution). The Department should also be assigned the obligation of prosecuting violations of the Fourth Amendment protections against unwarranted searches.

Irrespective of the guilt or innocence of any other party, police should be held liable for their unlawful conduct. This is different, in kind, from expanding federal police powers. The law should restrain and prosecute federal, state and local police who violate individual rights. The range of penalties should be broad, but most critically the law must treat any illegal conduct by police perpetrated "under the color of law" much more severely than the same conduct perpetrated by a common criminal. The minimum penalty for any intentional violation of constitutional rights should be expulsion and perpetual exclusion from any position within law enforcement. Impeachment and removal from office, if the contemporary analogy holds.

Various proposals have been offered in the past to "repeal" the unlegislated exclusionary rule, but they commonly leave a heavy burden on violated citizens, who are left with dubious remedies of civil torts. Rarely does a citizen injured - even murdered - by errant policemen recover monetary damages, much less see the actual perpetrator punished. It would be irresponsible for the law to pretend that every wronged individual can be a David against the police Goliath and all his prosecutorial associates. An affirmative defense of every individual's rights is required. Whether that individual is guilty or innocent of some other crime is irrelevant. The exclusionary rule only ensures that the guilty will be protected and frequently released from their penitence. That's not justice, but that's the whole truth.

©1998, William Westmiller
California Coordinator of the Republican Liberty Caucus
Past Candidate for the Republican Nomination for (24CD) Congress
Former National Secretary, California Chairman, Libertarian Party
exclrule.c17 ~830 Words

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