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Comment by Huffers2 | Hacker News Reader

I've never understood this. If I gather evidence against somebody illegally, and it proves their guilt, shouldn't we both go to jail?

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You're getting a lot of huffy responses to this question, but it is an entirely legitimate one. In fact, many (maybe most?) western countries don't have the same exclusionary rules the US has. There are other remedies to police misconduct. If you were starting a nation from first principles, it's not an iron law of justice that your courts have that rule.

The reason we believe the exclusionary rule works so well is that it strikes directly at the incentive structure for the police. We don't have to convince evidence-gathering officers of their liability or assess liability up and down the chain of responsibilities on the prosecution's side; we just have to assess whether evidence was handled properly, and, if it wasn't, the prosecutors lose the evidence. The one simple rule neatly ensures that nobody --- in any role --- on the prosecution's side has any incentive to mishandle evidence (or coerce underlings or partner organizations to mishandle it).

But clearly the rule isn't a requirement. We don't generally believe, for instance, that Canada's criminal justice system is systemically corrupt, and they don't have a hard-and-fast exclusion rule.

> The reason we believe the exclusionary rule works so well is that it strikes directly at the incentive structure for the police.

It also strikes directly at the incentive structure for defendants.

If you prove that the government wronged you but even then you still go to jail, you have little incentive to spend your resources proving that. And neither does anybody else, because prosecutors are not very interested in looking for prosecutorial misconduct.

But if proving government misconduct will keep you out of jail then you have every incentive to do it and the government won't be able to get away with it as much.

> incentive structure for the police

That assumes that the police's incentive is simply to convict as many people as possible. Which, if true, raises other concerns.

I think it more assumes that the police's incentive is to maximize the ratio of accusation to conviction as much as possible, which is a reasonable goal.

If they were simply trying to maximize the total number of convictions, then this wouldn't necessarily help; the police would just make broaden the kind of cases they'd accuse

And ofc, it's the function of the police to maximize the misdemeanor to conviction ratio; it's the function of the court to judge the quality of misdemeanor.

It is the function of whatever social/moral arm of the government to minimize misdemeanors. A police officer minimizing the number of accusations should only be doing so for practical reasons; In the ideal world he shouldn't be trying to interpret the law itself, and if it should exist (because it should in general be explicit what is and is not legal, and in general, it is not the policeman's job to decide what is moral, it is to enforce the standing morals.)

But its not an ideal world, and nobody wants to spend time/effort/money on a trash case, so the general incentive is to successfully convict; not to simply try.

>I think it more assumes that the police's incentive is to maximize the ratio of [conviction to accusation] as much as possible, which is a reasonable goal.

Strictly speaking it's not a very reasonable goal. The best way to achieve it would be to pick, say, the three easiest to prosecute cases every year and only prosecute those.

Well shit

Maximize ratio and minimize unaccounted (unaccused?) crime

> maximize the ratio of accusation to conviction

Um -- I think you meant that the other way around :-)

yes

I mean, illegally obtained evidence is still evidence. I don't think it's absurd to think police want to convict as many guilty criminals as possible, particularly if the crime is heinous enough to justify risking their own jobs by breaking the law to get evidence.

When we no longer have elected police, sherrifs, or district attorneys, then the numbers won't matter as much as the severity or sensationality of the crimes investigated.

But if the numbers = tough on crime, then there is pressure to obtain evidence illegally. If it becomes pervasive, then investigating the misconduct will never be prioritized because it doesn't seem as impressive to the voting public, and furthermore the justice system very rarely goes after their own.

So it's good there's a consequence for not walking a fine line; it's the embarassament of having your work undone.

This would open the doors for torture, not something a civilized state should risk lightly.

> The reason we believe the exclusionary rule works so well is that it strikes directly at the incentive structure for the police.

That's debatable. Parallel construction seems pretty common. The NSA shares information with the FBI, DEA etc, and then they exploit that information to collect clean evidence. So there's never any mention of NSA help.

Of course, that arguably involves perjury. But judges seem pretty OK with ignoring that. I do suspect that the Playpen cases involved parallel construction, and that they just screwed up on this one.

By "pretty common", you mean, "I've heard of it", right?

Point taken. But I've heard repeatedly about it, involving different sorts of illegal data, over some years. And the discovery rate is arguably low. That suggests to me that it's common.

You're actually missing a huge point in this, it gives the police the ability to selectively block the justice system.

If a police officer sees a defendant that they wish to let off the crime, all they have to do is testify to some trivial mishandling of the evidence.

The structure is to keep police officers honest which is more important than a particular person going to jail. The operating principle is that a dishonest police force is more dangerous than a criminal who was caught using illegal evidence. Typically the criminal will commit another crime and if you get evidence against them legally, then you can prosecute them for the new crime.

The "we both go to jail" policy would probably do even betting at keeping police officers honest. The threat of the officer going to jail being significantly worse than the threat of allowing the criminal to walk free.

The details are sketchy, who prosecutes the police/prosecutors? But in principle I think it makes sense.

> worse than the threat of allowing the criminal to walk free.

Alleged criminal. You realize you're innocent until proven guilty, right?

A "we both go to jail" policy would have the same incentives we see in the Wells Fargo example. We need top down incentive to follow the law at all levels. The current situation means that nobody profits from failure to follow the law.

>The threat of the officer going to jail being significantly worse than the threat of allowing the criminal to walk free.

Not if the officer going to jail is being manipulated by their superiors or is otherwise arranged to take the fall for someone else.

> The operating principal

Wouldn't the right word be "principle"?

Yes it would be (fixed). Thanks for catching it while it was still editable!

There's multiple problems with that idea. Firstly, it incentivizes 'working around the system' for enforcement to go after people. Enforcement is not inherenetly out there for the 'good', many times they're there for their own agenda, while looking like they're enforcing the law. This can create a mixture of criminal/enforcement culture, and lead to a further increase of 'bad cops'.

Secondly, when gathering evidence illigally, it may be that the evidence is purely out of context, shaped to make the person look guilty, or that the methods of doing so are not reliable. Courts still have a problem with reliability of evidence, even 'lie-detectors' are still seen as legitimate, but there is no evidence of their ability.

I think the logic is: "If you're willing to gather evidence against somebody illegally, then you'd also be willing to fabricate evidence that doesn't exist".

What guarantees do we have that the evidence has not been fabricated or planted? Evidence collection processes exists to minimize misconduct. If someone can't explain how the evidence has been obtained, they should be viewed as suspect.

This argument would legitimize torture if society would agree on that it is legitimate. So it's a really bad idea to accept this argument.

The way the system is now, if you gather evidence by "torture" (remembering it's just an analogy) and fail to come up with a convincing cover story for how you gathered the evidence, then the case is dismissed and everyone goes home. "Welp, it was worth a try!" It's this current system that's at risk of legitimizing torture as yet another illegal-but-oh-well tool for investigation.

Not if the victim of torture can afford our legal system. A (most likely Federal) judge would deny qualified immunity to those responsible, and they'd be held accountable at least in civil court, possibly criminal, although doubtful, given the way state prosecutors crawl up the police butt.

A federal judge deny qualified immunity? I'm struggling to contain my incredulity. There are instances where cops shot people who were unarmed and attempting to comply, where filmed doing it from multiple angles, and the cops still walked.

There also cases where cops shot people and the cops went to jail, but nobody talks about those.

https://slatestarcodex.com/2014/12/17/the-toxoplasma-of-rage...

Of course not. The justice system actually working shouldn't be remarkable enough to warrant a news cycle.

Federal courts do this routinely on cases brought before them. But most victims can't afford the court system. Here is a recent, typical one:

"New Brunswick, N.J., police drive their patrol car into fleeing suspect. Officers: We parked in his path, and he rode his bike right into us. Third Circuit: Video inconclusive. No qualified immunity.

One reason that I didn't consider until relatively recently is the issue of standing.

It's not possible for random people to successfully sue, say, the police for illegally gathering evidence if they have no proof that they were harmed and no proof that it happened.

The issue is that only people charged with a crime have the standing needed to bring this matter up in court. The (possible) crooks keep the police and justice department honest.

How can tainted evidence be used to establish guilt beyond reasonable doubt, when the entire basis of trust in the collection of the evidence is ostensibly gone.

How would one stop the police from getting "anonymous tips" with illegally acquired evidence again and again? It sounds like it would lead to a plain disregard for procedure.

Fruit of the forbidden tree. It's inadmissible in court.

Unless the LEO acted in "good faith"

I'm pretty sure there's a common saying about two lefts not making a right. Or two rights not making a wrong? Can't quite remember.

I'm with you ! They are both criminals and as such should be detained.

Quoting Bill Binney “Things won't change until we put these people in jail”

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