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PaperclipPerfector  4d ago (text post)   20880 thread views

Culture War Roundup for the week of March 31, 2025

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I actually think if there's a court order preventing the government from taking the black guy's phone, and the government knowingly grabbed it anyway, then the government should return it back to him. Yes, even if it seems counter-intuitive.

It's similar to the fruit from the poisonous tree doctrine; yes, the evidence is true and overwhelming that the criminal did it, but we let them go anyway because the government obtained the evidence illegally. Also very counter-intuitive. We KNOW the fucker did it, it's bad that the government illegally obtained the evidence but that's in the past, and we have the evidence now, why can't we use it to lock them up? I assert it's the same reason as in this case. It incentivizes the government to take the expedient "the-ends-justifies-the-means" approach which negatively impacts innocent people.

I actually think if there's a court order preventing the government from taking the black guy's phone, and the government knowingly grabbed it anyway, then the government should return it back to him. Yes, even if it seems counter-intuitive.

This sort of argument quickly leads to absurd places. Should the government return a kidnap victim to her kidnapper, if she was only found because a racist cop didn't like the look of some black guy who they later found out was hiding stolen children in his basement? Should the government refuse to act on the knowledge that a massive terrorist attack is being planned, if that knowledge was acquired by a racist cop roughing up a shifty-looking Arab?

The rule is not that the police have to literally undo all their previous actions or not act to address an imminent threat in the event of a procedural mishap, intentional or otherwise, it's just that evidence obtained in that way is not admissible in court, increasing the chances that the kidnapper and terrorists in your examples would walk free. In the most egregious cases, I imagine you could get a jury nullification-adjacent situation where the jurors, despite "not being allowed to consider" the tainted evidence, unanimously vote to convict.

Jury nullification is one-way only. If a jury convicts and the judge thinks it's bananas, the judge can generally set it aside. But the judge can't set aside a jury acquittal because that would violate the right to trial by jury.

I don't think the incidental discovery thing is quite as important as a court specifically prohibited the action to be taken. If a court ordered a kidnap victim to not be separated with her kidnapper, then my first inclination is that this is fake news and to dig into the court documents to see what really happened. Similarly in the hypothetical that a court is prohibiting the government from stopping a massive terrorist attack for whatever reason.

The fruit from the poisonous tree doctrine as applied in the US is pretty stupid. It is beyond retarded that good faith procedural errors can allow obviously guilty men go free. Most of the rest of the world does not have it, or does not have it to the same extent as US does.

A good faith error is literally a named exception to the Fruit of the Poisonous Tree doctrine.

The problem is that just about every error can be made to seem good faith.

Can you explain how it is a problem? It's not immediately clear to me, and it's apparently not immediately clear to most of the legal systems around the world, given that they do not subscribe to the extensive application of this doctrine.

Sure. I believe that the cops should not have near-infinite leeway to bend the rules and trod upon civil liberties to secure a conviction so long as they can convincingly make up a story about how they e.g. executed a warrantless wiretap in good faith.

Oh, we can continue applying the doctrine to illegal wiretaps just fine, that's not my problem with it. My problem is things like, if you fail to recite a specific magic incantation before your suspect confesses to the crime, you must disregard that confession.

So your objection is basically just to Miranda rights?

Probably not to the rights as such but to the court-invented magic incantation that replaces any actual inquiry whether and to what degree the rights were actually violated.

Yes, I mean to say "mirandizing".

Spontaneous confession is in fact an exception to the requirement to read the suspect their rights. The "magic incantation" is only required before custodial interrogation.

What this means in practice is that if talk to the perp, and you indicate or imply in any way whatsoever that he is expected to answer your questions, the conversation is now custodial interrogation, and if you don't mirandize the guy first, your case is fucked.

In fact, this isn't true; lots of cases (usually involving traffic stops, because that's where it comes up most) say a Miranda warning isn't required in these edge cases. But even if it were: easy solution, mirandize the guy first.

Have you ever had interrogation techniques used on you, e.g. Reid Technique? They work really well... innocent or guilty. And there's always the old "keep them in an interrogation room for hours on end and tell the they can go home once they've confessed" thing. The cops have all the advantages, having them give a warning in the beginning that you can, in fact, keep your mouth shut isn't unreasonable.

They just put people in prison regardless of the cops beating a confession out of them or tossing their place without a warrant or whatever, and no one has a problem with that. (or at least they better not)

IMHO a better solution to the "fruit from the poisonous tree" rule would be "the criminal defendant can be in prison when the criminal cop is too". Two crimes get two sentences, not zero. Making one sentence contingent on the other would be sufficient to fix the bad incentives.

In this case, though ... do we even need to imprison the "defendant"? "A confidential informant said he was MS-13" got him held without bond after he was arrested for loitering, but never got a conviction. "The cops think this gang-member-turned-snitch is very trustworthy now" is a good place to start an investigation but surely it's not a good enough place to end one; police informants are sometimes themselves motivated more by base incentives than by a newly-acquired love of honesty and justice.

IMHO a better solution to the "fruit from the poisonous tree" rule would be "the criminal defendant can be in prison when the criminal cop is too". Two crimes get two sentences, not zero. Making one sentence contingent on the other would be sufficient to fix the bad incentives.

The outcome of that would be judges looking the other way to avoid putting cops in jail.

So then we're back to the status quo of zero sentences in N% of cases, but we get justice in 100-N%? Since N will be less than 100 that still sounds like an improvement.

I think N would be near enough to 100 not to matter. Putting cops in jail for misconduct is very unpopular. Any prosecutor who tries it ends up getting shunned by the cops and losing his career as a result. A few years ago a couple of NYPD cops even beat up a judge and got away with it.

A few years ago a couple of NYPD cops even beat up a judge and got away with it.

Source?

https://archive.ph/3miok

Thanks. Archive.org works better in some browsers, for future reference, due to not requiring a google captcha.

I think N would be near enough to 100 not to matter. Putting cops in jail for misconduct is very unpopular. Any prosecutor who tries it ends up getting shunned by the cops and losing his career as a result. A few years ago a couple of NYPD cops even beat up a judge and got away with it.

If the primary problem is cops who beat citizens (or mishandle investigations, ignore procedures, etc) when they think they can get away it, that should be the problem directly to solve.

"Fruit of poisonous tree" is not working very well. Cases where it should be apply, may get parallel construction and other lies to "hide the poison" (hopefully rarely), yet criminals who face procedural errors walk free (quite often). Evidently criminals walking free is not enough of incentive for the rotten parts of the tree to become less rotten.

If the primary problem is cops who beat citizens (or mishandle investigations, ignore procedures, etc) when they think they can get away it, that should be the problem directly to solve.

Yes, and the way it is solved is by changing incentives so when cops mishandle investigations, ignore procedures, and beat citizens, the defendant is freed and the police have egg on their face. Punishing the cops for doing it would be great but is never going to happen.

Evidently criminals walking free is not enough of incentive for the rotten parts of the tree to become less rotten.

Not the remaining rotten parts, no.

A few years ago a couple of NYPD cops even beat up a judge and got away with it

Based

Aww, put a little more effort into it than this!

Institutions reducing hostile state capacity is a good thing. In this case the NYPD is, although paid by the state, demonstrating its ability to defy it.

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