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PaperclipPerfector  1mo ago (text post)   23887 thread views

Culture War Roundup for the week of August 3, 2026

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Jury system is not that bad in itself, a priori, for exactly the reasons you specify. I am more perplexed by the aftergrowths, such as exclusionary rule, and all ideas in the same concept-space neighborhood, that information presented to the jury should be managed on basis of whether some procedural rules were violated or not. I think it was a gigantic mistake by the US legal minds that unfortunately has spread to other Western countries, too, and can result in great injustices.

Any information that is likely to provide information pertaining on facts should be permitted as evidence. What if the cops or prosecution violated some rules to obtain the evidence they present, or did not utter a magical incantation while arresting a defendant? They should suffer the legal consequences for violations, but as long as the information obtained is good and has provenance that it is good, it should be allowed in. A judicial system loses its soul and becomes a mere court system when it loses a sight that it should identify people who are guilty or innocent of crimes, not to manage its own rules.

The exclusionary rule is good because it is better to prevent abuse than to punish it. More so the more power we give to potential abusers. Cops are given a lot of power, so they should have to make extra sure that they use it correctly.

… to protect the people from unreasonable searches and seizures, such as were permitted under the general warrants issued under authority of the government, by which there had been invasions of the home and privacy of the citizens, and the seizure of their private papers in support of charges, real or imaginary, make against them.

In other words, we really mean it! Don’t take our stuff without asking!

How does it prevent illegal seizures any better than any other forms of laws prevent things? It appears to me that it encourages the authorities who commit them to publicly lie about them.

Given the eminent position of the US and consequent influence of its legal system, I think it would have been much better it the fourth amendment would have been structured in some other way. I am not a legal scholar, but perhaps if it had made the illegal searches and seizures a federal crime with a set punishment instead a rule that does nothing but gives courts a reason to throw some evidence away.

Because it directly attacks the incentive to search illegally. If officers can’t get more convictions by searching illegally, they will make fewer such searches.

Requiring a second criminal trial to prove illegality is slower, more expensive, and just as vulnerable to judicial corruption.

federal crime with a set punishment

The Constitution doesn’t have any of those, except for “high crimes and treason.” Does your country?

What if the cops or prosecution violated some rules to obtain the evidence they present, or did not utter a magical incantation while arresting a defendant? They should suffer the legal consequences for violations, but as long as the information obtained is good and has provenance that it is good, it should be allowed in.

They will almost never suffer any consequences. That's true, empirically, even when the information is excluded. When the information is not excluded, the incentives are VERY strong for them to violate every rule in order to get convictions. Complaining about the exclusionary rule and suggesting punishments for cops/prosecutors who violate defendant's rights to get a conviction is equivalent to saying defendant's rights don't matter.

You are asserting many things in a short comment, and perhaps all your claims are true in the Anglo / US context. But, you know, I read your message thrice and didn't find any empiracal backing that there is a causal relationship that is not just path dependent happenstance. In Scandinavian system I am familiar with, it appears that cops and prosecutors are far too soft despite that the courts generally are allowed to consider all relevant information, whether it was lawfully or unlawfully obtained.

Despite all the procedural chicanery that you claim is necessary to protect defendants' rights, the US and to lesser extent other English-speaking countries are only ones I have heard about with a problem with parallel construction and asset forfeiture. Perhaps you have an issue of not policing the police and prosecutors sufficiently, and opting for weird procedural hamstringing that gets in the way of getting guilty people to jail is not helping as much as it should.

We have parallel construction BECAUSE we have the exclusionary rule. If you don't have the exclusionary rule you can simply introduce the unlawfully-obtained evidence, the defendant is convicted, then nothing else happens. Asset forfeiture (itself a civil procedure) has nothing to do with any of this.

We have parallel construction BECAUSE we have the exclusionary rule.

Yes, exactly so. [insert chad meme].

Now please stop for a moment and think about it. The exclusionary rule does not protect your rights. It results in the police who are intent on violating your rights, violating them and hiding it, presenting fabricated chain of evidence in the courts.

Meanwhile, the cops who accidentally or due to well-meaning incompetence did something that a capable defense team can present running a foul of some procedural ritual magic will find a defendant walking free because the evidence that he definitely violated constitutional rights of other citizens is ritually impure.

Asset forfeiture is another example that you have dirty cops, which follows from inadequately policed cops. Indirect incentive hacking does not work very well. Direct incentives would work better.

It results in the police who are intent on violating your rights, violating them and hiding it, presenting fabricated chain of evidence in the courts.

It makes the police who are intent on violating your rights work at it. And it makes the cops who are not wholly evil, merely overzealous, have an incentive to reign it in. And it means only wholly evil departments can engage in the routine practices of beating confessions out of people, denying them legal representation until they confess, etc.

Asset forfeiture is another example that you have dirty cops, which follows from inadequately policed cops.

There is no good answer to 'who polices the police'. They will always be inadequately policed, which is why "let the evidence taken unlawfully be used and then punish the cops" really means "your rights don't exist".

I think "let the evidence taken unlawfully be used and then punish the cops" could in theory be a successful policy, but nobody has the guts to punish the cops enough to make that work. If someone says "illegal search" or "warrantless search" I hear "breaking and entering, corruption of a public official" but there's zero desire to trade the exclusionary rule for that, and if someone did offer the trade I wouldn't take it because those charges would ~never be filed.

The other thing that annoys me about crim pro is that it inevitably protects the rights of guilty but not of the innocent. So the police violate your rights but don’t find evidence because you didn’t commit the crime? Sucks to suck. But they do the seem and find evidence you are guilty? Excluded.

In both situations, the police and the department (via vicarious liability) ought to be civilly liable. But evidence ought not be excluded.

Of course, this can create an incentive for police to trample rights viewing any civil suit as a cost of doing business. Perhaps that can be solved via exponentially growing settlements.

I think there's a game theory element to it. Remove the incentive for cops to violate the fourth amendment "just this one time" and take one for the team, or (more likely) pass off a new recruit as the fall guy. I'd be pretty damn upset if my fourth amendment rights were violated and I was consoled with "but don't worry, that guy who did it got fired." Excluding this evidence instead makes such a violation a worthless act.

Would you be more or less satisfied it the guy was not only fired, but given a similar or more serious sentence than any other rando if they enter your house and rummages through your stuff?

The issue here is the incentives though, especially with regard to the 4th amendment but also including any other rules. If we assume the police want to convict people they dislike, and violating rules results in a slap on the wrist, then the police are incentivized to violates rules to gather more data. Which is less about protecting the actual criminals and more about violating the rights of the dozen of innocent people they get along the way.

If the police illegally storm and search a dozen homes with no warrant, and one of them has drugs, then that's one additional drug conviction. Even if they've technically broken the law, the prosecutor can choose not to pursue the issue and the police chief can secretly congratulate the violators and they've got their extra conviction. If, instead, that extra drug conviction is completely invalid for the police to benefit themselves or the prosecution by violating rules. The point is not that that one drug offended deserves to go free because the police didn't catch him the right way, the point is that a dozen non-criminals got searched in the meantime and we want to remove any incentive for that to happen. The small injustice of messing with jury evidence is a means to align the incentives and create more justice in general.

The issue here is the incentives though, especially with regard to the 4th amendment but also including any other rules. If we assume the police want to convict people they dislike, and violating rules results in a slap on the wrist, then the police are incentivized to violates rules to gather more data. Which is less about protecting the actual criminals and more about violating the rights of the dozen of innocent people they get along the way.

Well this is implicitly the perplexing part of the solution. Why choose indirect incentive hacks when the direct incentive hacking -- the officer who commits a crime should be personally liable for those crimes, as any other citizen -- would be much more direct incentive?

Contra common but incorrect belief, police in the US do not enjoy immunity from criminal liability. If the cops murder you, that's still murder, etc...

The problem is twofold. First that many civil rights violations aren't actually crimes. If the police search you unlawfully, they're not guilty of any crime, they just acted improperly and any evidence they found would be thrown out. You might be entitled to damages, but probably not. Second is that in the event an officer does commit a crime in the course of their responsibilities, the legal system will generally bend over backwards to excuse them. Police are of the strong opinion that they don't make mistakes or commit crimes, prosecutors are strongly incentivized to be on good terms with the police, and juries will extend officers the extreme benefit of the doubt.

Well this is implicitly the perplexing part of the solution. Why choose indirect incentive hacks when the direct incentive hacking -- the officer who commits a crime should be personally liable for those crimes, as any other citizen -- would be much more direct incentive?

Because it almost never happens. For obvious reasons of incentives.

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