Those who follow rules

May 30, 2017 § 154 Comments

Authority is conserved, so the political possibilities in resolving actual controverted cases aren’t “more freedom” versus “less freedom”. The range of real political possibility is between authority exercised publicly and accountably by particular men, and authority exercised sociopathically without personal responsibility behind a wall of mechanical bureaucratic procedures and ‘zero tolerance’ rules (a situation often labeled ‘the rule of law’, but positivistically excluding the particular judgment which justice requires).

Modern people are always looking for ways to substitute rules and procedures for the authority of flesh and blood men.  Folks who deny the reality of authority prefer to be an insignificant mechanical component in a vast impersonal rule-executing machine rather than a subject expected to doff his cap to the king. This necessarily results in unjust and sociopathic exercise of authority.

In this post I will argue that substituting rules and procedures for human judgment and authority is necessarily unjust for what is called the “exclusionary rule” in American jurisprudence.

The “exclusionary rule” requires criminal courts in the US to always suppress evidence of a crime when improper procedures were followed in the collection of that evidence.  (Pay special attention to the use of always and some/sometimes in this argument).

This rule necessarily results in some cases resolving to an unjust result; in particular in those cases where good judgment should take procedurally tainted evidence into account. This injustice obtains against both the victims of crime and the common good of the community.  

A rule which guarantees some unjust results is an intrinsically unjust rule. Note that it isn’t necessary for the rule to always produce an unjust result for this to be the case: it is only necessary for the rule to sometimes produce an unjust result, because the rule is supposed to apply always.

Therefore the exclusionary rule is intrinsically unjust.

§ 154 Responses to Those who follow rules

  • Anymouse says:

    Isn’t there a good argument to be made that use of tainted evidence is intrinsically unjust, as it rewards unjust and illegal methods of collection? Isn’t, therefore, it reasonable to argue that this approach in fact prevents injustice, rather than producing it? I see no reason why issues involving tainted evidence should be laid at the feet of a court applying this rule.

  • Zippy says:

    Anymouse:

    To ‘break’ the argument it would have to be the case that the rule always prevents injustice and never produces an unjust result.

  • Anymouse says:

    Have we demonstrated that the rule can produce an unjust result? Or is a judgement obtained with tainted evidence always unjust?

  • Zippy says:

    Anymouse:

    Have any murderers ever gotten off based on the exclusionary rule?

    I didn’t spend a lot of time arguing the “sometimes” contention because it seems manifest. The counter seems to beg the question by asserting that unjust/just exactly corresponds to “prescribed procedures were followed”, when that is precisely what is at issue.

  • Anymouse says:

    That is part of the issue, but I think there is more at stake here than mere procedure; same as “Doffing the Hat”, courts demand procedures for a reason: to protect their legitimacy, dignity, and justice. This is not merely arbitrary. Their is a good argument that tainted evidence undermines the court itself, rendering it less legitimate as an institution that can exercise its authority. Judges always have to exercise their discretion, as does the Supreme Court. It makes sense that the Supreme Court might want to positively exclude this, just as it positively excludes trial by combat, and has to exercise specific judgement over “Cruel and Unusual Punishment”. It is their prerogative.

    Now, other courts in other places and countries could conceivably exercise their authority differently, and perhaps be more willing to work with tainted evidence in achieving a just decision. That may be the prerogative of their courts, but that does not mean it is the prerogative of ours. This rule is one well in line with the court’s authority, IMHO.

  • Zippy says:

    Anymouse:

    Part of the problem is in whether rules and procedures are interpreted positivistically or as general norms which admit exceptions subject to the judgment of those who exercise authority in particular cases. (I’d argue that “doff your cap to the king” is not intended to be an exceptionless procedure which takes the place of the judgment of flesh and blood men: quite the opposite actually).

    Also, if the point is to bolster the court’s reputation for justice there is no substitute for rendering actually just decisions. The OJ trial and the like – where obviously guilty people have been acquitted in criminal court on evidentiary technicalities – haven’t exactly been public relations victories for the institution.

  • Zippy says:

    I would add that if the procedural violations are transgressions on the part of investigators, the proper disposition of justice requires prosecution or sanction of those who actually transgressed. Punishing the public and crime victims for transgressions by investigators is obviously unjust.

  • LarryDickson says:

    Your argument is based on the notion that failure to punish a crime is unjust. This cannot be true; otherwise mercy would be unjust! The exclusionary rule, like the “innocent until proven guilty” rule, is part of a deliberate institutional bias that prefers failure to punish the guilty to erroneously punishing the innocent. I cannot see anything wrong with this bias; it is a perfectly defensible prudential judgement dealing with the situation where the human assembling of evidence is unavoidably imperfect.

  • TomD says:

    Would replacing the exclusionary rule with “The Judge at his discretion may order evidence excluded” satisfy the need for human authority?

    Because if “injustice can and will result” is the line, it seems all human authority would fail the test.

  • “A rule which guarantees some unjust results is an intrinsically unjust rule.”

    I’m going to disagree.

    “The “exclusionary rule” requires criminal courts in the US to always suppress evidence of a crime when improper procedures were followed..” As it should be. That is justice. If those collecting the evidence have less integrity, less honor than the one they are accusing, then their authority to accuse and present evidence is revoked.

    This is why God is a Holy God,this is why Jesus said “let he who is without sin throw the first stone.” True justice allows some people to walk scott free because the truth is secondary to who accuses them, to how clean their own hands are.

  • Zippy says:

    LarryDickson:

    Your argument is based on the notion that failure to punish a crime is unjust. This cannot be true; …

    Be careful of abstraction, and pay close attention to the difference between always claims, sometimes claims, and never claims.

    The argument depends on the premise that it sometimes is unjust to fail to punish a crime, it is true. The counterargument depends on it never being unjust to fail to punish a crime.

    If we aren’t punishing crimes because justice requires it though then why are we punishing any crimes at all?

  • Zippy says:

    TomD:

    … if “injustice can and will result” is the line, …

    If applying a mechanical rule necessarily produces unjust results then the rule is intrinsically unjust. The same necessity doesn’t apply to men with authority making judgments, and precisely what is at issue is whether positivistically applied mechanical rules are capable of substituting for human authority and judgment.

  • Step2 says:

    Zippy,
    Are you saying authorities can’t create self-governing rules that are designed to promote justice or are you saying if they do have such rules that a particular authority should be able to override them? If those rules authorities submit to in order to enforce best practices can have exemptions is there any reason to assume there is no trickle down effect such that most laws would also be prone to exemptions by particular authorities?

  • It is a decision based upon the public policy that the legal process must be adhered to in the collection of evidence and the use of evidence in judicial proceedings.

  • Hrodgar says:

    Re: Larry

    “Your argument is based on the notion that failure to punish a crime is unjust. This cannot be true; otherwise mercy would be unjust!”

    This is certainly false. First, courtesy of John Senior:

    “Justice is simply the social good, and it must therefore be done. It is defined as “giving each his due”–cuique suum, “to each his own.” A man is due his life because he is a living thing; it is his nature to have life; and, since it is also his nature to be moral, if a man commits a crime, he must be punished because punishment is retributive – punishment is the penalty due the criminal in justice to him. Proportioned punishment is due him, too, and you cannot deny him that right without yourself committing an injustice against him deserving punishment in turn. The judge who fails the criminal in punishment himself incurs a greater guilt.”

    Second, from the Psalms:

    “O Lord our God, thou didst answer them;
    thou wast a forgiving God to them,
    but an avenger of their wrongdoings.”

    Or, perhaps making the point more clear, I have also seen this verse rendered:
    “… You forgave all their sins, yet punished their offenses.”

    Mercy, properly understood, REQUIRES punishment.

  • “Mercy, properly understood, REQUIRES punishment.”

    Mercy properly understood is about restorative justice, not punishment. It is exceedingly unjust that Jesus paid the price for our sin, but that is the very essence and nature of grace. His sacrifice was about restoring us to right standing with God,so restorative justice,not punishment. We have been granted a pardon.

    “If applying a mechanical rule necessarily produces unjust results then the rule is intrinsically unjust.”

    No. Life is not always fair. Our capacity to understand what is just versus unjust is also sorely inadequate,deeply flawed. It would be exceedingly unjust to toss aside the exclusionary rule for example. The rule is not unjust. Our perception of it is flawed.

  • itascriptaest says:

    As Rawls taught the priority of procedure takes precedence over the good. The exclusionary rule is a great example this, a liberal custom that really warps the entire purpose of a legal system.

    In this post I will argue that substituting rules and procedures for human judgment and authority is necessarily unjust

    Ditto for Scalia like textualism/originalism.

    It is a decision based upon the public policy that the legal process must be adhered to in the collection of evidence and the use of evidence in judicial proceedings.

    So was torture.

  • Zippy says:

    Step2:

    I always concern myself with the truth of a particular matter first. Whatever the further implications, the truth always comes first.

    Procedural rules are always put in place in service to some further good, not for their own sake. They are the archetype of the kind of rules ‘meant to be broken’ when the procedures undermine their own justifying purpose.

  • Mike T says:

    Zippy,

    Here’s a list of limits on the exclusionary rule.

    IANAL, but the exclusionary rule does provide extensive areas where the judiciary actually can opt to allow tainted evidence to go through. One of those is where the police can demonstrate that they were acting in good faith, but screwed up.

    BTW, the exclusionary rule can cover a lot of things, just evidence picked up. It can include, for example, excluding a confession that was gained under coercion. That is rather important, particularly in places like NYC and Chicago where police have been known to use actual torture in some cases to get a confession. You just can’t trust police that use serious coercion or outright torture, in defiance of clear (often felony) statutes, to be honest about even material evidence.

  • […] Source: Zippy Catholic […]

  • Zippy says:

    Mike T:

    The conduct of police in collecting evidence should not be excluded either. The whole business of suppressing the truth in the supposed pursuit of justice is malformed at its foundations.

  • Hrodgar says:

    Re: InsanityBytes22

    I never said mercy was ABOUT punishment. I said it requires it. Just punishment is (among other things) a means of mercy, not its end. For one reason (there are others), because nothing is more cruel than for the judge to leave a sinner in his sin.

    From Judith:
    “but the Lord scourges those who draw near to him, in order to admonish them.”

    From Proverbs (and Hebrews, which quotes it):
    “for the Lord reproves him whom he loves,
    as a father the son in whom he delights.”

    Then consider also that admonishing the sinner is one of the spiritual works of mercy, and that admonishment encompasses a much wider range of actions than simply speech. And that the prince “does not bear the sword in vain, but is an agent of God’s wrath, to you good.” That is, he bears the SWORD, an instrument of death, to do you good, arguably even if it is wielded against you; for as Johnson said, “The prospect of being hanged focuses the mind wonderfully.”

  • Mike T:

    The fact that the exclusionary rule includes exceptions doesn’t solve the problem. If the only exceptions allowed are those explicitly stated in the procedure, then there will be cases where exceptions should be allowed but aren’t because no law could possibly list explicitly all the circumstances for which evidence could be allowed in exception of the exclusionary rule.

    Insanity:

    Of course life is not always fair. But there is a difference between saying “through human error, this rule allows for injustice to occur” and “this rule as a matter of course intrinsic to obedience of this rule will lead to injustice.” The first is not an unjust rule, the second one is.

  • Step2 says:

    Zippy,
    They are the archetype of the kind of rules ‘meant to be broken’ when the procedures undermine their own justifying purpose.

    The further good in question isn’t the result of a particular case. If you are looking at a multitude of cases in multiple jurisdictions you have to weigh the systemic results of illegally obtained evidence and involuntary confessions against the likelihood of people being coerced and framed for crimes they didn’t commit. Your trust in authority to always seek justice seems woefully and historically misguided. As we’ve seen with the Innocence Project, even with strong procedural safeguards in place there is sometimes serious injustice done by our criminal law enforcement (both intentional and unintentional).

  • tz says:

    The problem is we don’t live in the ideal world or utopia.
    After a long train of abuses, the judiciary came up with the exclusionary rule because prosecutors would never hold police accountable, nor would judges send police to prison for months in a “contempt of court” and fine them.
    You’ve proposed no real or specific alternative. The system is corrupt. And in some instances (coerced confession) the “evidence” is the fraud.
    So you are willing to let tainted evidence influence the Jury (If I don’t consent to a search, and they violate that, would they not plant evidence? They already have shown bad faith in the initial injustice of breaking rights and rules, but somehow we need to trust that they were pure when they say they found something? What about civil forfeiture?).
    I’d be satisfied if there was a properly proportionate penalty (noting it destroys the social fabric for those in authority to disobey the rules). Let it be a felony to violate things, let it be individually actionable more along civil lines, and then we can discuss it.

    But even more, you start with the idea of Authority. The whole point is that those in authority, enforcing authority, broke with authority to get evidence, so even if the evidence is true, it is NOT the product of authority, but robbery, theft, fraud, or some violation. The evidence did NOT come from authority but corruption. So let the evidence in, but then let it be announced publicly after the closing arguments that the judge, prosecutor, police, evidence technicians, and the rest are all corrupt and if they abused their authority there, then EVERYTHING ELSE THEY DID AND SAID was probably an equal abuse of authority and must be seen by the jury in that light.

    The problem today is not the exclusionary rule, it is the gross injustice, or as Molyneux says, the reverse net only catches small fish and lets big fish go. The Clinton crime family would be in prison if they were anyone else. Rarely and only because of exceptional circumstances is a Hastert or Weiner convicted and goes to prison over child molestation. The camels are being swallowed while this gnat is causing strain?

    No, we are post-justice. The exclusionary rule is all but irrelevant in the era where Hillary Clinton has not been charged.

    So, how many angels can dance on the head of a pin?

  • Zippy says:

    Step2:

    It is almost as though when I say that police misconduct should:

    1) be included in the pertinent data used to evaluate the veracity of evidence and to interpret it, and

    2) should be punished in a manner commensurate with the particular violation and its concomitant violation of the public trust

    … that you don’t even hear me.

  • Zippy says:

    tz:

    The problem is we don’t live in the ideal world or utopia.

    If you think the argument in the OP contains the implicit premise “first assume an ideal world or utopia” you might want to show precisely where that premise is located and what work it is doing in the argument. Or perhaps your comment was more stream-of-consciousness and wasn’t really intended to address the OP specifically?

  • Step2 says:

    Zippy,
    1) be included in the pertinent data used to evaluate the veracity of evidence and to interpret it, and

    Allowing it to be considered at all looks very much like doing evil so that good may come of it.

    2) should be punished in a manner commensurate with the particular violation and its concomitant violation of the public trust

    I would say that police misconduct undermines public trust so much that part of the appropriate punishment includes not rewarding the fruits of their misconduct by allowing it in court. In the legal system they often use that exact phrase, “fruit from the poisonous tree”, a metaphoric throwback to the first temptation.

  • Zippy says:

    Step2:

    Allowing it to be considered at all looks very much like doing evil so that good may come of it.

    You’d have to connect the dots there. Presenting the truth, the whole truth, and nothing but the truth (to coin a phrase)[*] to the person(s) tasked with rendering a just judgment is doing evil? (If we don’t trust the persons tasked with rendering a just judgment to actually render a just judgment given all of the pertinent facts we have a problem much larger than mere procedure. They shouldn’t have the task and concomitant authority in the first place.)

    …that part of the appropriate punishment includes not rewarding the fruits of their misconduct by allowing it in court.

    If you had said “in some cases” or even “in most cases” I might agree, at least properly construed. It is though an unavoidable matter of authoritatively judging the particulars — which is precisely the point. “Always” guarantees unjust results.

    —–
    [*] I’d probably say “the truth, all of the pertinent truth, and no lies” to avoid positivist misconception. Oddly I’ve never been accepted for jury duty.

  • Step2 says:

    Zippy,
    Are we agreed that it is in fact police misconduct? If it is misconduct, illegal or immoral to some degree and not merely say, alternative procedures, then the police did evil so good (justice) may result.

    Oddly I’ve never been accepted for jury duty.

    I’ve only been accepted once, but I did get chosen as foreman.

  • Zippy says:

    Step2:

    Whether failing to follow procedures to the letter is or is not misconduct also depends on the particulars, but we can stipulate a case of misconduct to make things simpler.

    Stipulate that the reason Judge Jon knows that Phyllis flitted the furbles is because Bobby Bob engaged in misconduct.

    In what sense is Judge Jon “doing evil that good may come of it” by taking into consideration all of the pertinent facts, including Bobby Bob’s misconduct and the fact that Phyllis flitted the furbles?

  • “The whole business of suppressing the truth in the supposed pursuit of justice is malformed at its foundations.”

    The truth is the truth. We aren’t suppressing the truth, we’re revoking the authority of those entrusted to present the truth and launch an accusation.

    Deuteronomy speaks of how “A single witness shall not rise up against a man on account of any iniquity or any sin which he has committed on the evidence of two or three witnesses a matter shall be confirmed. If a malicious witness rises up against a man to accuse him of wrongdoing….”

    Rules are written to help prevent an injustice.

  • Zippy says:

    insanitybytes22:

    We aren’t suppressing the truth, we’re revoking the authority of those entrusted to present the truth and launch an accusation.

    If that were the case then there would be no trial at all, as opposed to a trial in which only half-truths are permitted and in which pertinent facts are suppressed as if they aren’t true at all.

    Rules are written to help prevent an injustice.

    That may be what the rule-makers intend, but that doesn’t prevent the rule itself from being intrinsically unjust. The road to Hell and all that.

  • “If that were the case then there would be no trial at all, as opposed to a trial in which only half-truths are permitted and in which pertinent facts are suppressed as if they aren’t true at all.”

    When evidence has been tainted, we cannot vouch for it’s truthfulness anymore. What you label a pertinent fact is actually a half truth, one sure to sway the law falsely. Things like planted evidence, contaminated lab results, shady cops, hostile witnesses. People are innocent until proven guilty, the whole purpose of a trial is to seek the truth, not the truth as we want it to be. Someone could be totally guilty, but if our own hands are as corrupt as his, we aren’t doling out justice, we’re simply harassing the criminal because we resent the competition.

    So, the adulteress about to be stoned, totally guilty, but unless someone in the crowd can claim to be without sin, we have no right to condemn anyone else.

  • Zippy says:

    insanitybytes22:

    When evidence has been tainted, we cannot vouch for it’s truthfulness anymore.

    You are making the canonical mistake of this thread: asserting categorical claims about a matter which falls to prudence.

    “Tainted evidence” isn’t an epistemic category, it is an entirely artificial procedural category. Facts are facts, whether about forensic results or the procedures used to produce them or the techniques used to gather and control samples, etc, etc. Sometimes chain of custody errors legitimately call evidence into question, sometimes they don’t. Etc, etc.

    We moderns like to force matters of judgment into hard and fast mechanical rules so that we can kid ourselves into thinking that we can make ourselves independent of the particular judgment and authority of particular human beings. The “exclusionary rule” is a perfect example of this phenomenon.

    So, the adulteress about to be stoned, totally guilty, but unless someone in the crowd can claim to be without sin, we have no right to condemn anyone else.

    You may notice that an argument for entirely abolishing trials and criminal convictions isn’t an argument in favor of the exclusionary rule. The exclusionary rule requires us to put suspects on trial while pretending that some of the known-to-be-true facts about the case are false.

  • Ian says:

    Zippy,

    Would this argument also apply to such things as double jeopardy or the prohibition against ex post facto laws?

    It seems that in both cases, these rules would necessarily result sometimes in unjust results.

    Someone upthread mentioned ‘innocent until proven guilty’. What about this rule? Likewise with the ‘reasonable doubt’ rule.

  • Zippy says:

    Ian:

    Offhand I think that choices not to prosecute at all are different from a choice to prosecute while suppressing relevant facts. So I think ex post facto is out of the woods. As a practical matter it is always possible that justice might demand suspension of double jeopardy though.

    “Presumed innocent until proven guilty” and “beyond a reasonable doubt” are guidelines for making judgment calls, not procedural rules. Similar guidelines for making judgment calls about evidence would be possible, it seems to me, as a reasonable substitute for the exclusionary rule.

  • “The exclusionary rule requires us to put suspects on trial while pretending that some of the known-to-be-true facts about the case are false.”

    The purpose of the exclusionary rule is to deter law enforcement officers from conducting searches or seizures in violation of the Fourth Amendment, and other rights too. So the justice being meted out here isn’t really about the defendant at all, but rather about disciplining those charged with handling evidence. What is the consequence of an illegal search? Your hard work trying to catch a bad guy goes down the drain.

    You can torture someone and get a confession, maybe, but it could also be a false confession. So what is truth here? What are the “known to be true facts,” when you have broken the rules to obtain them? You are presuming that the facts are known, that the evidence being withheld is factual, but there is no way to determine that when the alleged facts have been obtained illegally.

  • Anymouse says:

    That is, essentially, the issue. This rule is about trust.

    Now, I would agree a bit with Zippy that a substitute such as prudential guideline might be acceptable or even better, but that itself is a judgement call that needs to be made.

  • Zippy says:

    insanitybytes22:
    You can’t exclude evidence without knowing what it is and the reasons for its exclusion, all of which are facts pertinent to judging the case.

  • Insanity:

    He is not making the assumption that the excluded evidence is always factual, he is making the claim that it is sometimesfactual. Therefore always excluding evidence obtained through illegal procedures (because it necessarily produces unjust results in some cases) is unjust. He has also stated that he thinks the cops should be tried for crimes committed during an investigation; excluding evidence from a court of law doesn’t really punish the cop, it punishes the victims of crime and society at large. To punish a cop, the cop would need to stand trial. Making them stand trial would also deter cops from violating reasonable procedures for investigating crimes.

    If the jury cannot, in its reasoning, determine that a coerced confession probably doesn’t mean much in the way of the guilt or innocence of the defendant, then the jury does not possess the proper judgment to be making any verdict whatsoever. If on the other hand the jury is capable of being able to say “that confession probably doesn’t mean much given that the cops broke his fingers in order to obtain it” then excluding all this information is just misguided and when applied universally must lead to at least some unjust results.

  • I’m going to totally agree with the first and second paragraph of Zippy’s post, in fact I really appreciate the point he makes in the second paragraph. However, we part ways when it comes to the exclusionary rule. Justice illegally obtained is not justice and it’s not truth.

  • What this teaches us is that the Holy Roman Catholic Monarch ought to manifest the sovereign goodness of God the Father and his princely court the magnificent splendor of angels.

  • Zippy says:

    TimFinnegan:

    If the jury cannot, in its reasoning, determine that a coerced confession probably doesn’t mean much in the way of the guilt or innocence of the defendant, then the jury does not possess the proper judgment to be making any verdict whatsoever.

    Precisely. This is a reflection of modernity’s schizophrenic relationship with authority: we want the benefits of authority without anyone actually having any authority.

  • You are not looking at the bigger picture. The exclusionary rule is designed to promote justice on a larger scale than one individual case.

  • Zippy says:

    winstonscrooge:

    You are not looking at the bigger picture. The exclusionary rule is designed to promote justice on a larger scale than one individual case.

    I understand that perfectly; but a rule which guarantees unjust results fails to promote justice, period, on any scale. Any rule falling under that description is self-undermining. The ‘you have to break a few eggs to make an omelet’ objection doesn’t really work here.

    I think folks are right that this stems from a conviction that juries can’t be trusted to make just judgments if they are given all of the facts (including the facts about procedural violations, etc).

    But if juries can’t be trusted to make just judgments then why do they have the authority to make those judgments in the first place, and how does feeding them half truths instead of the whole truth remedy the fact that they can’t be trusted to make just judgments?

  • Terry Morris says:

    insanitybytes22:

    However, we part ways when it comes to the exclusionary rule. Justice illegally obtained is not justice and it’s not truth.

    This reasoning seems to fall under the “if it’s legal it must be moral [and vice versa]” view of law and criminal justice. This seems to be a big problem these days. Especially among law and order types.

  • Terry Morris says:

    Zippy:

    But if juries can’t be trusted to make just judgments then why do they have the authority to make those judgments in the first place, and how does feeding them half truths instead of the whole truth remedy the fact that they can’t be trusted to make just judgments?

    There is also the related problem (or so I understand) that juries are often told that in order to remain within the confines of the law, they are only permitted to render a certain kind of verdict in a given a case. When in fact this is not necessarily the truth. So the problem is thereby compounded by more lies and half truths.

  • Mike T says:

    Zippy,

    The “exclusionary rule” requires criminal courts in the US to always suppress evidence of a crime when improper procedures were followed in the collection of that evidence. (Pay special attention to the use of always and some/sometimes in this argument).

    Always is factually incorrect here. In fact, the SCOTUS has carved out a distinction that evidence should not be suppressed if the procedural violation was the result of human error or done in good faith based on a legitimate misunderstanding. It’s only where the evidence was collected with deliberate malice toward the rules, some of which are criminal statutes if violated.

    As an example, IIRC from talking to my father, it is a straight up felony for federal law enforcement to intentionally violate the 4th amendment-grounded rules on wiretapping. That is due to a legitimate act of authority declaring that the privacy rights/privileges of the public in their communications must only be violated by surveillance in such cases where there is probable cause to believe a crime is being committed and the law enforcement officers have convinced a judicial authority to authorize their surveillance.

    Given that the majority of criminal statutes are themselves not malum in se, but rather malum prohibitum, I think a strong case can be made that sovereign has every right to declare that certain types of procedural violations take precedent over their enforcement. I mean technically a malum prohibitum issue is itself just a procedural rule aimed at smoothing out and helping the common good rather than something that is outright offensive to God.

  • Zippy says:

    Mike T:

    Always is factually incorrect here.

    All your objection has done, as far as I can tell, is define the scope of the ‘improper procedures’ which always trigger the rule.

  • Mike T says:

    Well yeah. The problem with your post IMO is that you say it is intrinsically unjust. That means it is unjust even in matters that are purely malum prohibitum where applying the exclusionary rule to a defendant who is the victim of misconduct worse than his offense would be unjust to someone. I am not seeing the injustice there, as the very nature of the offense is not something that is intrinsically evil, but that is punishable by virtue of being a violation of rightful authority. Since the judge is the rightful authority in this manner, it seems simply foolish, but not unjust/evil, for the judge to have only the option of exclusion.

  • Zippy says:

    Mike T:

    It seems now that you are suggesting that if the exclusionary rule were scoped differently – if it distinguished between malum prohibitum and malum se and applied only to the former – that it might not be intrinsically unjust.

    But I don’t think that works, even as a hypothetical which does not accurately reflect the reality of the exclusionary rule as presently constituted and scoped.

    The jury either has the authority to judge the facts of the case and deliver a verdict, or it does not. Granting the jury the authority to decide a verdict from the facts while at the same time prohibiting them from knowing the facts is self undermining.

    If the judge on the other hand has the authority to decide the verdict in the case, we shouldn’t bother with a jury.

    Three scenarios might work, and I don’t pretend that they are exhaustive:

    Jury decides, judge counsels.

    Judge decides, jury counsels.

    Judge and jury decide together through some decision structure, say each can veto a guilty verdict by the other. In effect the judge is a member of the jury.

    But in none of these scenarios – this is the important bit – do we resort to selective suppression of the truth, to the pretense that the truth isn’t actually true, to hiding the truth from the decision maker, in order to reach a verdict.

  • Zippy says:

    I don’t think people really appreciate how unjust it is to the jury to task them with rendering a just verdict, knowing that they are almost certainly not being given the whole truth of what is known and pertinent to the case.

    So, I know you are a bunch of liars who are only telling me half truths, deliberately suppressing the things you permit me to know about the case. And you expect me to take your lies and half truths and render a just verdict from them?

  • Mike T says:

    “Facts” imply something known to be true with at least a high degree of justified certainty. A good case can be made that since the government’s case is grounded in the trustworthiness of the government to actually be presenting real facts, demonstrable criminality/dishonesty calls into question whether a piece of evidence or a testimony is actually a fact.

    Ex:

    1. A forensics technician who is strongly suspected to have deliberately fabricated supporting data. (Or worse, as has happened many times, has been caught doing it thousands of times).
    2. A cop who commits a very egregious violation of authorizing statutes (ex. kicks down a door without a warrant, manhandles the suspect, etc.
    3. A prosecutor who has brought multiple witnesses who the defense counsel later shows were known by the prosecutor as perjurers thus establishing that the prosecutor will not abide by legal requirements to not call known dishonest witnesses.

    The particular facts vary wildly as the possibilities that arise from the variety of cases is damn near infinite. You will have many cases where the judge must exclude things precisely because he cannot be convinced that what is present is actually a “fact” rather than a well-crafted lie.

    Given that the exclusionary rule is a one-size-fits-all solution crafted as a bureaucratic occam’s chainsaw, it is bound to do wrong in many cases, but good in others. That is precisely its problem IMO.

  • Mike T says:

    In all three of those examples, there are ways to possibly/probably get around those predicaments to actually introduce facts that are trustworthy. However, consider this in a civil case. Suppose an expert says “Windows 11 runs so fast because it is written in pure Assembly Language.” The judge just happens to Google that remark and finds out that the reality is that Windows is mostly C/C++. I think it is entirely proper for the judge to order the jury to disregard that testimony as it is not a fact.

  • Zippy says:

    Mike T:

    “Facts” imply something known to be true with at least a high degree of justified certainty.

    Yes, and in order to exclude evidence you have to know what the evidence is and know your reasons for excluding it, and it has to be important enough to the case to drive a positive invocation of the rule to exclude it.

    So the exclusionary rule by definition excludes facts known to a high degree of certainty.

  • Zippy says:

    Mike T:

    I think it is entirely proper for the judge to order the jury to disregard that testimony as it is not a fact.

    I think the fact that the ‘expert witness’ asserted something obviously wrong as verified by a quick Google is very pertinent, actually.

    I think part of the problem is that folks are assuming that “Bob said X” means that X is a fact; but it doesn’t. The fact in question is “Bob said X”, not “X”.

    In any case, counsel from a judge to disregard is one thing. A jury can ignore the judge if they think his counsel is stupid or unjust — though telling them otherwise would itself be a lie. A jury’s authority is governed first by the natural law, and by the positive law only to the extent that the positive law does not conflict with the natural law.

    Blocking pertinent evidence from being presented at all is another thing entirely though.

  • Mike T says:

    I think part of the problem is that folks are assuming that “Bob said X” means that X is a fact; but it doesn’t. The fact in question is “Bob said X”, not “X”.

    I think this is where the forensics examiner example can muddy the waters. The jury and judge have the authority, but not the competence, to verify the technician’s work. Suppose a technician is giving testimony and a defense counsel shows the man’s name in a scandal that appeared in the MSM for fabricating evidence. Given the limitations of competence, I think it is fair for the judge to declare that the jury must disregard everything the man asserts precisely because he has a) been proved to be a devious liar and b) no one in the courtroom is actually competent to discern whether or not the pattern broke in this particular case.

    As I said, obviously if the samples are sufficiently preserved to permit reevaluation that is the best route. However, I don’t think it would be unjust for a fallible human authority to order the jury to disregard every word the man uttered out of rational knowledge that they cannot arrive at the truth now due to a lack of competence.

  • Mike T says:

    And once again, we find ourselves staring at the obvious problem: judges and juries don’t have the actual authority they need which is to judge every fact before them rather than certain facts and certain people.

  • Terry Morris says:

    Mike T.:

    Who proved the witness a devious liar, and if the jury is not competent to decide whether the pattern has been broken in this particular instance, why are they tasked with deciding the case in the first place as Zippy says above?

  • Cane Caldo says:

    Well, so what?

    The exclusionary rule exists because to kind people it is preferable to commit an injustice which lets several criminals go unpunished than it is to commit an injustice which punishes even one innocent. Nothing is guaranteed, but the exclusionary rule prejudices the police and courts against a certain kind of injustice which we find abhorrent; particularly in comparison to the other kind.

  • Zippy says:

    Terry Morris:

    Exactly. Everyone in this life has to evaluate the testimony of domain experts. We do it all the time. Most people who go to the auto mechanic don’t have an auto mechanic’s domain expertise.

    If a jury isn’t competent to do that in an intense advocacy scenario where opposing counsel each get to have at the witnesses then the jury just isn’t competent to decide the case.

    And if judges and juries really aren’t competent to render verdicts then that is a much larger problem than just the exclusionary rule – and yet doesn’t call into question what has been said about the exclusionary rule specifically.

  • Zippy says:

    Cane Caldo:

    See my comment to Ian upthread about the difference between guidelines like “presumed innocent until proven guilty beyond a reasonable doubt,” on the one hand, and the exclusionary rule – which requires the suppression of the truth – on the other.

  • Mike T says:

    That argument applies all the way up the hierarchy. Even in an absolute monarchy, the king is almost assuredly not competent to discern the truth precisely because he doesn’t have the STEM background to say “give me the samples, I’ll see for myself.” It is proper for authorities to rely on the advice of others to make a decision they lack the competence to decide unilaterally. In the absence of that competence, backing down is prudent, as boldly charging forward in the face of a clear lack of competence would make them fully, personally responsible for any arising injustice.

  • Zippy says:

    Mike T:

    That argument applies all the way up the hierarchy.

    Of course. As CEO, board member, executive, what have you I continuously have to evaluate the contentions of domain experts, often in areas well outside of my own personal competencies. Again, decision makers have to do this all the time.

    So what? Does this justify deliberately hiding facts from and presenting half truths to decision makers who are charged with making life and death decisions about criminal justice?

  • Ian says:

    Zippy,

    Thanks, that helps clarify things for me a bit. It seemed that ‘innocent until proven guilty’ and ‘reasonable doubt’ were in a different category from the exclusionary rule, but I couldn’t put my finger on what the relevant distinction was. (Could your proposal be made more precise to pinpoint the type of rule you are talking about?)

    A question regarding the practical application of your proposal: if you are serving on a jury, and you are told to ignore evidence that was obtained illegally, should you ignore the order to ignore it?

  • “Does this justify deliberately hiding facts from and presenting half truths to decision makers who are charged with making life and death decisions about criminal justice?”

    I was just pondering this in the context of God and faith. I think God does indeed, in an act of mercy and justice, hide facts from us, not present us with the full truth. We cannot process, absorb the full truth of all things, so He only reveals to us what we can handle,what we need to know.

    Juries are similar, I’ve served on them. People are subjective,emotional, not too bright, busy with their own lives, easily swayed by shiny objects on the ground. So in the interest of helping them arrive at the truth, facts sometimes must be kept from them. You taint a jury by telling everyone a guy is a child molester and a thief, because while those may be facts and truth, they are irrelevant as to whether he stole a particular amount of money at some other given time.

  • Ian says:

    Should have actually read the comments more thoroughly instead of just skimming before posting my latest question. Upthread from Zippy:

    In any case, counsel from a judge to disregard is one thing. A jury can ignore the judge if they think his counsel is stupid or unjust — though telling them otherwise would itself be a lie. A jury’s authority is governed first by the natural law, and by the positive law only to the extent that the positive law does not conflict with the natural law.

  • Ian says:

    Zippy, please indulge my thinking out load for second. Your premise:

    A rule which guarantees some unjust results is an intrinsically unjust rule.

    is perhaps intended to be self-evident, but it is not immediately self-evident to me: my initial thought is that this would fall under the purview of prudence. Someone might reason that such a rule results in justice being achieved in more cases than in the absence of such a rule (e.g., owing to the increase in police wrongdoing).

    Later in the comment thread you respond to winstonscrooge’s similar suggestion by writing:

    [A] rule which guarantees unjust results fails to promote justice, period, on any scale. Any rule falling under that description is self-undermining.

    Ok, is the reason such a rule fails to promote justice on any scale because it requires persons deliberately to make unjust decisions in some specific cases? A system without such a rule would not require such a thing, even if it might be thought to result in more overall wrongdoing and abuse.

  • Zippy says:

    Ian:

    Is the reason such a rule fails to promote justice on any scale because it requires persons deliberately to make unjust decisions in some specific cases?

    Yes. Rules which (attempt to) require people to make unjust choices are intrinsically unjust rules.

    I try not to clutter my posts with too much explanation, but linked in the OP is this old post where I explain (or at least claim) that the authority to adjudicate particular cases is an authority of a particular natural kind.

    A rule which ostensibly governs those who hold that kind of authority but is contrary to the very nature of that kind of authority is an intrinsically unjust rule. A rule which deliberately suppresses the pertinent facts available to those holding that natural kind of authority is that kind of rule.

    And the reason the modern mind reveres those kinds of rules as being just in themselves is because those kinds of rules obscure the reality of authority; and to the modern mind authority is inherently abusive and cannot — must not — be trusted with that kind of knowledge and power.

  • Zippy says:

    insanitybytes22:

    If juries are incompetent to judge matters of life and death, don’t give them authority over life and death.

    But if you give someone authority over life and death don’t feed him lies and half truths.

  • Cane Caldo says:

    @Zippy

    I read your comment to Ian. And in response I ask: So what?

    “Let reason be silent where experience gainsays its conclusions.” Your argument is logical. It’s also precious.

    It is simply true that in a fallen world we must prioritize even different forms of injustice. In practice, the exclusionary rule does prevent injustices from being committed by the police, judges, or even kings; even if it means it takes a long time to get Al Capone. That is better–less injust–than railroading innocent people into prison. We’ve a century of Commie absolute rulers to prove it. The police and judges simply won’t be discouragingly punished when they appear to be effective and efficient even when they are actually breaking the law.

  • Step2 says:

    In what sense is Judge Jon “doing evil that good may come of it” by taking into consideration all of the pertinent facts, including Bobby Bob’s misconduct and the fact that Phyllis flitted the furbles?

    As I stated earlier Bobby Bob did evil so that good may come from it. If Judge Jon allows Bob’s evidence he is corrupting his court by allowing this scheme to play out.

    Does this justify deliberately hiding facts from and presenting half truths to decision makers who are charged with making life and death decisions about criminal justice?

    What you call deliberately hiding facts and presenting half truths I call presenting the best and most reliable evidence. I mean, either you have some evidentiary standards or you don’t. I’m not sure where you are getting this idea that any and all evidence and testimony of dubious motive and origin should be legally relevant so long as it is fully explained.

    Under this new system, every jury trial which permits this evidence or testimony is a potential mistrial because I know I’m not going to accept any of that garbage as legitimate – and if other jurors disagree then too bad for them and the prosecutors. Likewise for bench trials, every case should be appealed if this evidence is introduced. Why should someone facing a particular judge have to overcome a much higher obstacle to proving his/her innocence than another?

  • Zippy says:

    Step2:

    If you are presenting this as an example of Judge Jon “doing evil that good may come of it”:

    If Judge Jon allows Bob’s evidence he is corrupting his court by allowing this scheme to play out.

    … that just shows that you don’t know what “doing evil that good may come of it” actually means: you are committing the genetic fallacy.

  • Zippy says:

    Cane Caldo:

    I know, right? History began in 1914, all that came before was barbarism, and the anglosphere way is the only way.

  • Zippy says:

    It may be worth noting (again) that there is a nontrivial difference between a rule which “results in injustices” (not to mention dogs and cats living together) and a rule which requires decision makers to make unjust choices.

    If that isn’t too precious.

  • Step2 says:

    Zippy,
    For the third time, it is Bob who is the one doing evil so that good may come of it. I know you are convinced the only morally relevant point of view is that of the judge, I disagree.

    Further, if you are fine with people under your authority doing evil so that good may come from it, please do tell. If perchance you are not fine with it and think that such a practice might infect others under your authority and may eventually seem personally acceptable since everyone around you does it, then maybe you agree it is corrupting.

  • Zippy says:

    Step2:

    Good. We agree that Judge Jon is not doing evil in order that good may come of it.

    … if you are fine with people under your authority doing evil so that good may come from it, …

    Yes, I am well known for my support of consequentialism.

    Instead of typing it over again I’ll just let you re-read what I already wrote upthread. I’m sure you can find it.

  • Cane Caldo says:

    @Zippy

    I know, right? History began in 1914, all that came before was barbarism

    I know right? History ended in 1914, all that came after was brand new…

    and the anglosphere way is the only way.

    If you’re Anglo, yeah.

    It’s an observable fact that Lefties/Commies (from historically Roman Catholic and Orthodox countries) plotted to pillage and destroy the Anglosphere. Among the strategies was flooding America with non-Anglo peoples; often Roman Catholics. We erred, and let them in. Another observable fact is that those same countries which puked out Commie infiltrators are the same places which descended first into murderous chaos, and tend to stay there longer.

    Sure, everything is going down the toilet. It’s still the case that the Anglosphere is better. I’ll stack any former British colony up against it’s non-British colony neighbors any day of the week. America, Canada, Australia, Singapore, Hong Kong…even India and South Africa are preferable to their neighbors.

    It may be worth noting (again) that there is a nontrivial difference between a rule which “results in injustices” (not to mention dogs and cats living together) and a rule which requires decision makers to make unjust choices.

    If that isn’t too precious.

    It is. A criminal should be prosecuted and an innocent should be set free. The exclusionary rule doesn’t require a judge or jury to make an unjust decision because it doesn’t require either verdict. It may prejudice a judge or jury one way or the other. Prejudice is not the same thing as require. If a jury which has been excluded evidence still finds the criminal guilty, or the innocent not-guilty, then the verdicts are just regardless of what evidence was excluded. Finding a criminal guilty in the absence of excluded evidence doesn’t somehow make the verdict unjust.

    You’re cherry-picking (being precious) about a certain type of injustice even though the evidence is that this particular injustice is to be preferred over other worse injustices. As you have said: Human authority is a messy affair.

    The rule of law (the Anglosphere way) is not the idea that men don’t rule. It’s the humble decision that some wiser men before us ruled better, and that we should build on that.

  • Zippy says:

    Today I learned that favoring the “presumed innocent until proven guilty beyond a reasonable doubt” standard but criticizing the exclusionary rule is Communist.

  • You just aren’t liberal enough to be a communist, Zippy. You’ll have to hang a bit farther out the left window to pull that off.

    I think the essence of what you are saying is that when men lean on rules rather than on their own authority, it becomes much easier to avoid the responsibility of authority by simply blaming the rules? The exclusionary rule is an example of how moral accountability is placed on this bit of bureaucracy, “just following rules,” rather than on an actual person? A rule is just a mutually agreed upon delusion basically, an imaginary thing having no real substance or authority of it’s own?

  • Jack says:

    The Anglosphere way = Jew banker usury to concentrate the wealth of a nation into a few hands and then build Leviathan navies to grow it and field goy armies to die for it.

    The Anglosphere is the Talmudsphere.

  • TomD says:

    I think an example is in order – anyone can conceive a situation where someone got out of punishment because of the exclusionary rule, and the aggrieved victim later vigilante shot the criminal – many would say the criminal “got what he deserved” (aka justice).

    And if so, the exclusionary rule prevented justice; was unjust.

  • Purple Tortoise says:

    I hope it is obvious to everyone here that the whole point of the current American jury system is to selectively provide information to twelve randomly chosen individuals who happen to have the greatest ignorance and least competence in order that they will be enabled to render the most just verdict possible on this fallible earth.

    And in case it’s not obvious, the problem goes way beyond the exclusionary rule. Centuries ago jurors were chosen because they had personal knowledge of the case and the people involved. Now we choose people who have the least knowledge. And if you happen to have personal competence in some area relevant to the case, you can bet your last dollar that either the prosecutor or the defense will use voir dire to exclude you from the jury. After all, they wouldn’t want you to take any personal authority into the jury room — just be a blank slate and take whatever they dollop out to you from the experts they bring into the courtroom. All these rules and procedures create the conditions for perfect objectivity, just like casting lots is a perfectly objective way to determine guilt or innocence.

  • Terry Morris says:

    Zippy:

    Today I learned that favoring the “presumed innocent until proven guilty beyond a reasonable doubt” standard but criticizing the exclusionary rule is Communist.

    Ha! Americans can’t be Communist. I don’t care if they are Catholic. Apparently your accuser never got that memo.

  • Kristor says:

    Authority is conserved, so the political possibilities in resolving actual controverted cases aren’t “more freedom” versus “less freedom.” The range of real political possibility is between authority exercised publicly and accountably by particular men, and authority exercised sociopathically without personal responsibility behind a wall of mechanical bureaucratic procedures and ‘zero tolerance’ rules (a situation often labeled ‘the rule of law,’ but positivistically excluding the particular judgment which justice requires).

    Again, brilliant. Is there anything that is *not* conserved? How? Again, is there *ever* any escape from the duties and penalties and royalties of judgement? How?

    Proceduralism is a retreat from duty, and from responsibility, and from any risk of penalty for error. But in ontological fact there exists no such dodge. No sparrow falls; no hair of any head. The coherence of the cosmos depends upon it.

    So proceduralism is a lie.

    “We were just following orders.”

    “OK, yeah: death to you, for that.”

  • Cane Caldo says:

    @Terry Morris

    Ha! Americans can’t be Communist.

    Wish that were true. #bringbackexile

    Apparently your accuser never got that memo.

    I don’t know that his accuser accepts as legitimate missives which are delivered in a post-1914 method, like memos. Might try a falcon.

  • djz242013 says:

    Americans can’t be Communist

    Alternatively, there is the Moldbug hypothesis:

    America is a communist country

  • Step2 says:

    Cane,
    I can’t believe you let Zippy bait you that easily. *sigh*

    Insanitybytes22,
    A rule is just a mutually agreed upon delusion basically, an imaginary thing having no real substance or authority of it’s own?

    I hope you understand how this anti-principle if applied consistently leads directly and inevitably to anarchy, which I predicted would happen in my first comment on this thread. If you feel differently, start driving on the left side of the road to prove you are correct.

  • Anymouse says:

    Just to pile on, Ireland and the Kingdom of England, Catholic States both, used and still use trial by jury and typical Anglo Saxon legal systems.

    Oh, and Queen Mary Did Nothing Wrong :^)

  • Zippy says:

    I often employ controversial concrete cases as a way of addressing subtle points; but there is no guarantee that my editorial approach will actually produce comprehension in all readers.

    Driving on the right is a normative rule but it doesn’t require the concealment of the truth from a person tasked with making an authoritative life and death choice. And even so, nobody is going to give you a ticket in a particular case when driving on the left is demonstrably required by prudence.

  • Zippy says:

    In flying (at least under FAA rules in the US) the pilot in command has the explicit authority to suspend all of the regulatory requirements if an emergency or potentially developing emergency requires it. He may be called to justify his actions later, but there is no question about his authority to suspend the rules.

    The exclusionary rule requires juridical pilots to wear blindfolds.

  • itascriptaest says:

    He may be called to justify his actions later, but there is no question about his authority to suspend the rules.

    You seem to be channeling Carl Schmitt here. If our juridical order is merely a facade for submliated theological commitments, the judge who suspends the law to each a just result is equivalent to God’s suspension of the laws of nature when He performs a miracle. Liberal materialism with its watchmaker god doesnt allow for a God who actively intervenes in the affairs of man and so liberal legal thought (at least in theory) gives preeminence to an abstract system of laws against rule by discrete living authorities, Liberalism attempts to abolish the miraculous from political life. Obviously Liberalism doesn’t live up to this ideal, Liberal authorities have consistently suspended and flouted their own rules but that just makes Liberalism incoherent.

    The traditional Catholic and Harvard law professor Adrian Vermeule has recently covered this issue –

    ” I would be prepared to argue, but on a different occasion, that when lawmakers exercise this sovereign prerogative of reasoned-but-arbitrary free choice, they most nearly resemble God the Creator.”

    http://mirrorofjustice.blogs.com/mirrorofjustice/2017/05/natural-law-welfare-economics-and-adminstrative-law-comments-on-helmholz.html

  • itascriptaest says:

    He may be called to justify his actions later, but there is no question about his authority to suspend the rules.

    You seem to be channeling Carl Schmitt here. If our juridical order is merely a facade for submliated theological commitments, the judge who suspends the law to each a just result is equivalent to God’s suspension of the laws of nature when He performs a miracle. Liberal materialism with its watchmaker god doesnt allow for a God who actively intervenes in the affairs of man and so liberal legal thought (at least in theory) gives preeminence to an abstract system of laws against rule by discrete living authorities, Liberalism attempts to abolish the miraculous from political life. Obviously Liberalism doesn’t live up to this ideal, Liberal authorities have consistently suspended and flouted their own rules but that just makes Liberalism incoherent.

    The traditional Catholic and Harvard law professor Adrian Vermeule has recently covered this issue –

    ” I would be prepared to argue, but on a different occasion, that when lawmakers exercise this sovereign prerogative of reasoned-but-arbitrary free choice, they most nearly resemble God the Creator.”

    http://mirrorofjustice.blogs.com/mirrorofjustice/2017/05/natural-law-welfare-economics-and-adminstrative-law-comments-on-helmholz.html

  • Zippy says:

    itascriptaest:

    I don’t think it is accidental that our laws reflect reality (and in particular the reality of authority) best when the context is a piloted machine hurtling through the air at high velocity with lives in the balance. People don’t picture themselves in court — trials and such are exceptional circumstances. But many people take advantage of air travel.

    Another interesting feature of FAA regulations is that even in aircraft which require more than one crew, there is always one and only one pilot in command. Sully didn’t have to take a poll before deciding to ditch in the Hudson, and interfering with his decision could get you prison time.

  • Zippy says:

    (a) The pilot in command of an aircraft is directly responsible for, and is the final authority as to, the operation of that aircraft.

    (b) In an in-flight emergency requiring immediate action, the pilot in command may deviate from any rule of this part to the extent required to meet that emergency.

    (c) Each pilot in command who deviates from a rule under paragraph (b) of this section shall, upon the request of the Administrator, send a written report of that deviation to the Administrator.

    (Emphasis mine)

  • I’m with @Jack,
    and also;

  • TomD says:

    @Zippy – that section of the law was added after a number of preventable accidents where the pilot in command tried to follow the rules instead of saving everyone’s ass.

    And I think similar laws need to be explicated in other areas, too; though some reasonable people realize it.

  • Zippy says:

    TomD:

    It was already law when I got my own ratings, but the history isn’t surprising.

  • Cane Caldo says:

    @Step2

    Cane,
    I can’t believe you let Zippy bait you that easily. *sigh*

    No sir. Perhaps you’re letting Terry Morris’ accuser error mislead you of who actually accused Zippy of Communism. Hint: Not me.

  • Step2 says:

    Zippy,
    So an appeal to an emergency life or death situation is when you claim normative rules should be suspended? While I obviously grant that a few cases involve life or death decisions there is no reasonable way to claim they all do. Moreover, the orderly and formal proceedings of a courtroom trial are pretty much the antithesis of an emergency situation.

    The exclusionary rule requires juridical pilots to wear blindfold.

    Sure. Question: Are pilots trained to trust their instruments, in addition to air traffic control instructions, in the event of major storms and other low visibility conditions?

  • Zippy says:

    Step2:

    So an appeal to an emergency life or death situation is when you claim normative rules should be suspended?

    The only answer which can be given is “it depends”. When generally normative positive law should be ignored is always a prudential judgment.

    Furthermore, in general criminal trials are life and death situations which involve things like prison terms, etc: they are aberrant and dangerous situations by definition.

    I already commented upthread about the difference between reasonable doubt as a guideline for making judgments versus the exclusionary rule as a mechanical device which – by design – hides pertinent truth from authoritative decision maker(s).

    Are pilots trained to trust their instruments, in addition to …

    Pilots (unlike jurors) are trained to do all sorts of things. When I am pilot in command, though, no mindlessly followed mechanical rule or rules can dictate to me what information is and is not pertinent in a given situation.

    Are you under the impression that instrument flying involves never looking out the window? Is the fact that pilots train under the hood (with a safety pilot in VFR conditions) supposed to justify painting the cockpit windows black in non-training situations? I frankly don’t see the relevance.

  • Zippy says:

    Cane:

    Perhaps you’re letting Terry Morris’ accuser error mislead you of who actually accused Zippy of Communism.

    So the rant about Communist Catholics was just, what? Mood lighting for the thread, in response to the scandalous idea that not every single thing in recent Anglo jurisprudence is automatically unproblematic?

  • Step2 says:

    Zippy,
    Furthermore, in general criminal trials are life and death situations which involve things like prison terms, etc: they are aberrant and dangerous situations by definition.

    Driving a car is inherently dangerous also, yet driving a car is typically not a life and death situation. In other words, if you try to expand “emergency” to encompass every criminal trial, and heck why not civil trials too, my challenge about driving on the left side of the road fully applies.

    I frankly don’t see the relevance.

    You are trusting a mechanical device for the safety or yourself and passengers in very poor visibility conditions. In other words, it may be a different sort of perception of objective reality but it is safe and reliable.

  • Zippy says:

    Step2:

    A criminal trial isn’t at all like driving a car to work. It is like dealing with a car accident. Except it was presumably on purpose.

    Any pilot who trusts instruments blindly is a Darwin Award candidate. I would never fly IFR without multiple redundant independent systems constantly cross-checked against each other. Unless it was an emergency, hah.

    The “trust your instruments” mantra isn’t advice to turn your judgment over to a mindless machine: it is acknowledgement that your body’s natural sense of orientation is gyroscopically unreliable.

    Pilots who interpret it as the former die, and take their passengers with them.

  • Ryan McConnell says:

    Zip,

    Let’s remember… substituting the rule of law for the rule of men sometimes produces an unjust result. BUT, substituting the rule of men for the rule of law ALSO sometimes produces an unjust result (see, for reference, St. Thomas More).

    On another point, the exclusionary rule sometimes produces injustice in cases (where guilty men go free) but its purpose is not to produce criminal justice, but instead to uphold the constitution (if men are supposed to have the right to be free from unlawful search and seizure, but they can still go to jail based on improper searches, they have no such right at all… even if the cop who does the illegal search is fined or otherwise sanctioned).

    Thus, the goal of the exclusionary rule is to uphold the rule of law (the constitution) by preventing overreach by the sovereign (the state, usually represented by the police). It does this by allowing the accused to go free when the sovereign overreaches, whether the accused is guilty or innocent. So it achieves its purpose, which is not related to the guild or innocence of the accused.

  • Zippy says:

    Ryan McConnell:

    If the argument that the ER is intrinsically unjust works though it doesn’t matter what the purpose of the rule happens to be. A rule that everyone over 30 has to be sacrificed in the Carousel ritual might have the intention of preventing overpopulation and starvation, but a good intention doesn’t make an intrinsically unjust rule into a just rule.

  • TomD says:

    On the other side of things, you have jury nullification; which puts the law itself on trial.

    It’s no surprise that positivists hate it (one simple trick!).

  • Zippy says:

    TomD:

    Jury nullification expresses the fact that you can’t grant a jury the particular authority to decide a verdict without actually granting it authority to decide the verdict. As with all of modernity’s attempts to construct non-authoritative authorities, the result is to make the process sociopathic — in this case by simultaneously tasking the jury with making the particular judgment and by presenting them with a distorted picture of reality.

    Again the primary injustice done by the exclusionary rule is an injustice done to the jury. It is similar to (say) laws which (propose to) require doctors to refer patients for abortion. Under the ER the sovereign attempts via the exclusionary rule to transfer responsibility for the verdict to the jury while at the same time hiding pertinent truth from the jury.

  • djz242013 says:

    BUT, substituting the rule of men for the rule of law ALSO sometimes produces an unjust result

    There is no such thing as “rule of law.” There is only rule of men who mindlessly follow laws and rule of men who use their mind.

    So the choice is between rule of men who will intentionally ignore important information to make decisions, and the rule of men who will not.

  • djz242013 says:

    Why is there no such thing as rule of law? People talk about it often enough, as if it were a real thing. Because rule of law is impossible in principle: https://proofs.herokuapp.com/theorems/158

  • Zippy says:

    djz242013:

    It is difficult to even talk about this subject (which is why we talk about it here, hah!); but it is closely coupled to positivism.

    Consider a ‘theistic’ positivism — a deism like that of many of America’s founders. Under theistic positivism God (may have) put the Laplacian universe in place and configured its rules, wound it up and let it go, but thereafter the universe unwinds its clockwork deterministically: it is constituted and governed by the mechanical rules and nothing but the mechanical rules.

    This picture of how reality works is wrong “all the way down”; though as we’ve seen, it is often very difficult to explain why that is the case when speaking from within the soup of modernity.

    So really whether “the rule of law” is possible or not depends, like all verbal expressions, on what exactly the speaker means by it.

    If the speaker means it positivistically — that once the written rules are in place, the written rules themselves govern — that once the clock is wound the clockwork is the authority — then this is as incoherent as any positivist view of reality. The grinding away of a clockwork is not authority: it is not a morally binding judgment made by a person with authority about a particular matter.

    If on the other hand the written law is merely an expression of authority, a way of attempting to communicate (and thereby necessarily also delegate) authority, then it cannot be interpreted positivistically. This is why “scripture is inerrant” works, but sola scriptura does not. It is fundamentally incoherent to ascribe extensional meaning – and the morally binding requirements of authority are a kind of extensional meaning – to any text or mechanical procedure in itself.

    No set of mechanical rules can predetermine what factual information is and is not relevant to rendering an authoritative judgment of guilt or innocence.

    So guidelines such as “proof beyond a reasonable doubt [that the accused disobeyed authority, that is, broke the law]” are perfectly reasonable, and distinct from an exclusionary rule which requires the deliberate suppression of true (and obviously pertinent, since that is the very reason for their suppression) facts.

    If we want to call those guidelines “the rule of law” that’s fine, but the tendency of moderns to treat the phrase positivistically weighs against the prudence of that labeling. Positive law is only ever an accrual layered over and founded upon the natural law, and the natural law is not the kind of thing which can be reduced to texts and procedures.

  • Ian says:

    Re: rule of law, Bonald had a good post on it some months back:

    https://bonald.wordpress.com/2016/10/13/rule-by-law/

  • […] another form of positive law, the sovereign promulgates a normative rule:  in thus and such a circumstance, this is to be done. Bedtime is eight […]

  • Step2 says:

    Zippy,
    A criminal trial isn’t at all like driving a car to work. It is like dealing with a car accident. Except it was presumably on purpose.

    Okay, but your appeal to a life or death emergency where rules can be thrown out the window only works before the car accident or the immediate aftermath of emergency rescue, the appeal does not work for dealing with the consequences weeks or months later. Again, most prison sentences are neither life (with or without parole) nor the death sentence. To say criminal trials are aberrant and dangerous doesn’t begin to make sense unless you also assert beforehand the defendant is innocent and that liberty and freedom are valuable, because I have no idea why the trial of a guilty defendant would be considered a dangerous aberration – it is entirely expected and appropriate. The focus upon the result of a particular trial also ignores the fact that about half of criminals are repeat offenders (with higher percentages for violent criminals). The justice system isn’t restricted to only one particular case against a habitual criminal.

    Any pilot who trusts instruments blindly is a Darwin Award candidate.

    So now you believe in natural selection. 🙂

  • Zippy says:

    Step2:

    To say criminal trials are aberrant and dangerous doesn’t begin to make sense …

    If criminals and their activities aren’t aberrant and dangerous by definition then what are we doing putting them on trial, tossing them in jail, etc?

    So now you believe in natural selection.

    Natural selection is obviously a thing. It is also obviously worthless – of negative epistemic value actually, based on the delusions it seems to have inspired – as a supposed explanation of that/how prokaryotes eventually started giving birth to hippos.

  • Zippy says:

    Ian:

    I had already written my more recent post by the time I saw your comment, but I added a link to Bonald’s very on-topic post to that one.

  • Step2 says:

    Zippy,
    “Furthermore, in general criminal trials are life and death situations which involve things like prison terms, etc: they are aberrant and dangerous situations by definition.”

    “If criminals and their activities aren’t aberrant and dangerous by definition then what are we doing putting them on trial, tossing them in jail, etc?”

    Compare and contrast. In your first comment you are referring to the trial and a possible outcome, clearly not to the criminal – unless you strangely described a person as a situation. In the second comment you are referring to the possible criminal and their activities which are not happening during the trial, but are in theory the reason for the trial. The aberration of the crime and danger of the criminal doesn’t keep going indefinitely, the trial is a process for figuring out the crime and who is responsible through formal arguments and evidence.

    As an answer to your question in the second comment, ideally we are rendering justice. The point being only that the trial itself is distinct from the crime it is about.

    “…as a supposed explanation of that/how prokaryotes eventually started giving birth to hippos.”

    Sure, you can explain the book of Revelations by only reading the first chapter of Genesis because nothing happened in between. For someone nitpicking earlier about fallacies, you should know how bizarre your “refutation” is.

  • Zippy says:

    Step2:

    That single comment isn’t a “refutation,” it is just an offhand comment. Taken in hermetic isolation from the not insignificant other material on this blog on the subject it isn’t in itself very significant, sure.

  • Modern people are always looking for ways to substitute rules and procedures for the authority of flesh and blood men.

    This sounds very similar to many of the false dichotomies which you yourself have refuted over the years. Any authority who exercises power over people that he doesn’t know personally must by necessity lay down abstract rules for lesser authorities to apply.

    In any case, you’re blatantly equivocating between formal and material injustice. To demonstrate the issue, consider the case of probabilism, the rule “when in doubt about the law, it is licit to follow a probable opinion” will necessarily lead to people sometimes committing materially sinful actions, yet it is approved by the Church (the other approved systems are the same in this respect).

    Likewise, the fact that the exclusionary rule will lead to some guilty persons being acquitted is not a valid argument for its being unjust. The state does not have an obligation to prosecute every case available, nor is it intrinsically obliged to present all the evidence in its favor. Since these are prudential questions, it is within the legitimate purview of the sovereign to decide to exclude illegally acquired evidence.

  • Zippy says:

    AR:

    You are right: if the argument is taken as a brittle caricature of itself, and several bases are stolen, it doesn’t work.

  • Simply asserting that I’ve made a strawman is not an argument, apart from an explanation of what about my understanding of your argument is wrong.

  • Zippy says:

    AR:
    If you actually want to grasp the argument, and aren’t just being contrary because you disagree with the conclusion a priori, there are several steps you might take.

    First, consider that “the sovereign” and “the jury tasked with reaching a verdict in this case” aren’t the same thing. Then understand that authority is something real: it is not an infinitely plastic material which can be ontologically separated from the human beings who exercise it and shaped into whatever form we like to form a component in a machine for whatever instrumental purposes we might happen to have. Next realize that tasking a jury with reaching a just verdict is a delegation of authority; and that hiding pertinent information from the jury in the process is a deformation of the authority in question. Then also ruminate on the fact that there is a difference between not delegating authority (as would be the case if, say, the sovereign didn’t bring charges) at all and “delegating” authority while deliberately hiding pertinent facts from the delegate. After you’ve considered all of those things you still might not grasp the actual argument, but at least you have a fighting chance of avoiding sparring with strawmen just because you don’t like the conclusion.

  • Zippy says:

    Suppose the sovereign law proposed to ratify the adoption of a small child, but with the proviso that the child was independent and in no case obligated to obey the parents. In that case the sovereign is proposing to delegate authority without actually delegating it.

    There is a similar, though perhaps more subtle, thing going on here.

  • Zippy says:

    The OP is actually worded poorly. As always I learn a lot about how to better express a concept when my readers give me grief about how I’ve expressed it.

    The intrinsic immorality of the ER arises from the fact that it is a perverted delegation of authority in which pertinent truth is deliberately hidden from the delegate in such a way as to guarantee that the delegate will sometimes make an objectively unjust concrete choice; keeping in mind that “not (yet) charged with a crime” and positive acquittal are distinct choice objects.

  • TomD says:

    As a side note, the command of the Judge to “ignore that testimony” or “ignore that evidence” has to be the most nearly perfectly impossible to obey command ever.

    We’re humans, we can’t forget!

    Goes off to watch 12 Angry Men

  • @Zippy

    You (seem to be) assuming that prosecuting a person entails an obligation to present all possible incriminating evidence against that person. As far as I can tell, you’ve yet to support this assertion via an actual argument.

    If it is granted that what evidence to present to the jury is a prudential question, then the burden would be on you to demonstrate why, specifically, it would be unjust to exclude illegally obtained evidence.

  • An actual rebuttal to something I’ve said would be nice.

  • Zippy says:

    AR:

    You are projecting. I made the argument I actually did make, not the one that you claim I have to make.

  • djz242013 says:

    not this:

    You (seem to be) assuming that prosecuting a person entails an obligation to present all possible incriminating evidence against that person.

    But rather, (I think) Zippy’s argument entails an obligation to not deliberately deceive those to whom authority is delegated. Lying to your peers is bad, but lying (even by omission) to those in authority who are charged with making a life or death decision is materially worse.

    The ER constitutes a form of lying by omission.

  • There’s no such thing as “lying by omission”. Lying is a type of action which is intrinsically evil. What you are referring to is failing to inform one who has a right/need to know.

    To hold that the ER constitutes such a failing, you need to establish that the jury has a right/need to receive evidence that has been illegally obtained in at least some cases. To do this, you need to establish either:

    That the jury has a right to receive all available evidence, or

    That the jury has a right to receive some class of available evidence, and that this necessarily will intersect with “illegally obtained evidence” in some cases.

  • Step2 says:

    Relevant link.
    Critical line: “One advantage of the exclusionary rule is that it sets the sanction roughly equal to the government’s expected gain, thereby approximating the sanction suggested by optimal deterrence theory.”

  • Zippy says:

    djz242013:

    Lying works OK as an analogy, though I wouldn’t characterize it as lying strictly speaking. Contraception (e.g.) can be thought of as a kind of lying at least analogously, and supposedly delegating authority to make a life and death choice while deliberately suppressing pertinent facts (again pertinent by definition in the case of the ER, else nobody would bother to suppress them) is similar to onanistic sex inasmuch as an essential property of receiving and accepting authority to reach an objectively just life and death verdict is access to the whole known and relevant truth of the case.

    The modern mindset sees the world as atomized raw materials subject to manipulation for whatever instrumental ends one happens to have (in this case prevention of procedural violations by law enforcement).

    Delegating authority while suppressing pertinent truth is like using condoms to prevent abortion, to continue the analogy. It begs the question to assume a mechanistic view of authority as a plastic fungible material which can be arbitrarily shaped by the sovereign to make a machine for achieving instrumental ends, because that is precisely what is disputed.

    And who thinks what about rhetorical burdens of proof layered over their own unexamined assumptions isn’t the measure: reality is the measure. If argument is just about itself then I couldn’t care less about it.

  • Step2 says:

    Zippy,
    And who thinks what about rhetorical burdens of proof layered over their own unexamined assumptions isn’t the measure: reality is the measure.

    The reality is that the alternatives which were in place before the current version of ER failed to deter police misconduct. Your position makes the sovereign lie to himself and his subjects about enforcing a presumption of innocence – which you say you approve – through due process of law by maintaining ineffective means for deterring violations. As the linked article pointed out, any alternative which is equivalently able to deter will have the same effect systemically because police will not seek illegally obtained evidence. A delegation of authority (even one involving life or death decisions which I’ve already disputed multiple times) doesn’t override the sovereign’s interest in areas that impact the sovereign’s integrity or relationship to his subjects. Would you say that because generals are delegated authority to conduct war there can’t be any rules to war, that all officers must receive every piece of relevant information, and every potentially available weapon not utilized is a treacherous attempt to undermine the war? I know for a fact you wouldn’t.

  • Zippy says:

    Step2:

    Would you say that because generals are delegated authority to conduct war there can’t be any rules to war, …

    Of course not. Too much abstraction is the enemy of clarity here.

    I am saying that suppression of pertinent truth is contrary to delegation of authority to render a just verdict.

  • I am saying that suppression of pertinent truth is contrary to delegation of authority to render a just verdict.

    And that’s precisely the claim which you need to support with an argument.

  • GJ says:

    Step2:

    The reality is that the alternatives which were in place before the current version of ER failed to deter police misconduct.

    I don’t suppose judicial authorities trying misbehaving police under criminal has been tried?

    It should give even the most hardened policeman pause that he could be hauled into court and sentenced like a common felon.

  • Terry Morris says:

    I am saying that suppression of pertinent truth is contrary to delegation of authority to render a just verdict.

    And that’s precisely the claim which you need to support with an argument.

    He doesn’t *need* to support it with an argument; the claim is self-evidently true according to its own terms. Even you understand that, although you say you don’t.

    If I steal your popcorn and get away with it due to the prohibition against introducing pertinent evidence that I in fact am a known serial popcorn thief, the verdict is simply not just – you have incurred a total loss, and I in turn get off scott free and am encouraged to continue my popcorn thievery. And vice versa.

    Now, whether Zippy *chooses* to support a self-evident claim with an argument is a different matter altogether.

  • GJ:

    In addition, what the alternatives to the ER are, their implications, and their effectiveness are irrelevant to the argument of whether or not the ER is intrinsically unjust. If the idea that the ER is intrinsically unjust is true, then we can’t use it even if the alternatives are poor or problematic.

  • Zippy says:

    Terry Morris:

    Language always provides openings for infinite regress. No matter how manifest the truth of a given claim (as is the case here), someone can always counter with the infinite linguistic regress of the small child’s “why”. And this unanswerable linguistic “why” can always be fashioned into a rhetorical claim that some “burden of proof” hasn’t been met.

    That is what making abstract argument the standard – as opposed to making reality the standard – gets us.

  • He doesn’t *need* to support it with an argument; the claim is self-evidently true according to its own terms.

    Simply asserting that something is self-evident doesn’t make it so. How and why is it unjust if a party to a case chooses not to submit a piece of evidence which benefits their own cause?

    If I steal your popcorn and get away with it due to the prohibition against introducing pertinent evidence that I in fact am a known serial popcorn thief, the verdict is simply not just – you have incurred a total loss, and I in turn get off scott free and am encouraged to continue my popcorn thievery. And vice versa.

    If i get my popcorn returned then I’ve received personal restitution. Whether and how vigorously the state prosecutes you is as always a prudential matter.

  • This is a classic case of circular argument. A proposition is asserted (that refraining from presenting evidence favorable to one’s cause in a trial is unjust), and from that one reasons their way back to the same proposition.

  • Zippy says:

    ArkansasReactionary:

    How and why is it unjust if a party to a case chooses not to submit a piece of evidence which benefits their own cause?

    This is typical of your monomaniacal hyper-discursive approach to any number of subjects, as if “evidence” meant literally discrete beans with well defined weights which can only be placed on one side of a scale or the other depending on what color the bean happens to be. (Not to mention as if the pertinent information excluded procedural violations and the like). And as if human judgment were the scale, a crude piece of machinery counting the weights of the beans.

    To demand that I present things in such a way as to cater to your already distorted perception of reality is — again — projection on your part.

    If you adequately grasp the realities to which the terms of argument refer, then it is indeed self evident that suppression of pertinent truth is contrary to delegation of authority to render a just verdict. If you don’t adequately grasp those realities then no amount of logic chopping is going to help you understand them.

  • Zippy says:

    ArkansasReactionary:

    This is a classic case of circular argument.

    A central point of this post is that meaning, authority, delegation, and human judgment are not mechanical objects and deterministic machines: plastic materials which can be arbitrarily reshaped and mechanistically reconfigured to accomplish whatever further objectives the sovereign might happen to have.

    My editorial approach to contending that this is the case may not be everyone’s cup of tea, and as always it doubtless could be improved. But substantively that is the central point, with the ER as a concrete teaching object.

    The counterargument goes “First, assume that all of these things actually are mechanical objects and machines and that no moral distortion ever happens when the sovereign arbitrarily reconfigures them to accomplish ends unrelated to achieving a just result in the particular case. Once it has been assumed that they are, I’ll stand here and complain until you non-circularly prove that they aren’t using logic chopping machinery of which I approve”.

  • That of course is a strawman, I’ve never claimed and do not believe that human judgment is equivalent to a mechanical scale. And since the defense is allowed to use illegally obtained evidence, the discussion presupposes that the evidence in question is not favorable to the defense.

    Let’s simplify the issue however, suppose that we were dealing with bench trials, rather than jury trials. So the trier-of-fact knows all of the evidence, but is required to acquit unless the defendant’s guilt can be proven from evidence that was legally obtained. Is that unjust in your view? And if so then why?

  • Zippy says:

    AR:

    That of course is a strawman …

    And around the racetrack you go again.

    Let’s simplify the issue however, suppose that we were dealing with …

    Yes, by all means lets assume transitivity and talk about some other different kind of thing.

  • Bench trials happen in the US, so it’s hardly an irrelevancy. So that I can understand your position and argument better, would you hold that the ER being applied in bench trials is unjust?

  • Zippy says:

    ArkansasReactionary:

    So that I can understand your position and argument better …

    I think I’ve already given you plenty — if you actually want to understand.

    And you’ve given me plenty of reason to conclude that you aren’t actually very interested in understanding at all, or that even if you are it is a fool’s errand to indulge you.

  • It’s a simple question really. Is the use of the ER in bench trials unjust?

    Even aside from convincing me, being able to answer this should help clarify your own views of precisely what is wrong about the ER.

  • Zippy says:

    ArkansasReactionary:

    It’s a simple question really.

    Have you stopped beating your wife?

  • Step2 says:

    Zippy,
    The counterargument goes “First, assume that all of these things actually are mechanical objects and machines and that no moral distortion ever happens when the sovereign arbitrarily reconfigures them to accomplish ends unrelated to achieving a just result in the particular case…”

    Fixed version:
    First, assume that meaning, authority, delegation, and human judgment are occasionally guided by but not limited to rules of logic and reason, which obviously includes abstractions. When the sovereign, with good and sufficient reason, reconfigures those rules to accomplish the end of correcting a related moral distortion (police misconduct in that particular case) then a just result is achieved.

  • […] and fences are mechanical features of the world not human beings, so if we can hide the ‘problem’ of politics behind them maybe we can […]

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