Criminal Justice Myths Part Two - Getting Critical Evidence "Thrown Out"

Another persistent myth in our criminal justice system is the myth that law enforcement is somehow hamstrung and helpless from being forced to contend with multitudes of technical, impractical regulations and procedures designed to advance the cause of criminals' rights.

According to this myth, well-meaning, but overwhelmed law enforcement personnel unwittingly cause 'smoking gun" evidence to be excluded by judges who are made helpless by these complex and counterintuitive rules.  Further, a key feature of this myth is the slick, high priced criminal defense lawyer who is able to manipulate these arcane rules to the great advantage of his lucky clients.  The result is a never ending stream of critical evidence in serious cases being "thrown out" followed by dismissals because the Government's cases fell apart.  All of this happens as hapless Judges, police, and prosecutors look on in horror.

The reality is about as exactly the opposite as you can get.  Critical evidence in serious cases is excluded from cases just about as often as unicorns roam Central Park.  Most criminal defense lawyers can count on one or two hands the number of times over an entire career that critical evidence has been excluded from serious cases.

In order to understand some of the reasons why this is, however, you need to understand a bit about how this process works.  It will all come together in the end, so stick with it.

Typically, when people worry about the exclusion of evidence from a case, they mean what lawyers call "physical evidence", like "the murder weapon" or "the kilo of cocaine from the trunk of the car".  There are other kinds of evidence that can be excluded, but for the purpose of this discussion, let's talk about just this sort of "physical evidence".  It is the exclusion of physical evidence that most typically makes people upset when it is reported in the news, or most often serves some plot point in a movie to illustrate the horror of the criminal justice system letting another guilty guy go free.

So what happens when there is physical evidence in a criminal case?  How does the issue get dealt with?  Many clients who are upset about how the police dealt with them will immediately want me to "tell the judge" about the problem with the police conduct that led to the recovery of the physical evidence.

But the law takes a longer approach to it than that.  This issue of the physical evidence, and how it was recovered is dealt with, but in a highly structured way at a very particular time in the case.  I can't just "tell things to the judge" at the arraignment about a claim of illegal police behavior resulting in the illegal recovery of physical evidence.  (Well I can, but it has no real impact and cannot result in the judge making a ruling there and then.)

In fact, this issue of the recovery by the Government of physical evidence is not addressed until just before trial.  It is not addressed until just before trial because the law considers this issue an issue of evidence at trial.  Before trial begins, one of things that a lawyer must do is to sort of out issues of evidence before the trial begins so that the trial is not delayed by arguments back and forth over what is allowed to be admitted as evidence and what isn't.  

The Exclusionary Rule

Under our law, if the Government obtained physical evidence illegally, meaning against the basic of principles of freedom established by our Constitution, then the law says that the Government should not be allowed to use that evidence at trial.  This principle is called the "exclusionary rule" because it holds that evidence can be "excluded" from the trial.  If evidence is excluded because of this rule, that means that the Government is not allowed to use that evidence in the case.

Therefore, if the case is a possession of a weapon charge, and the Judge finds that the police violated the Constitution in getting it, then the Government would not be allowed to introduce the weapon at trial.  Obviously that would make it kind of difficult (or impossible) to convict someone of possession of a weapon if the weapon can't be introduced as evidence or even discussed. 

This exclusionary rule is the subject of considerable controversy because it ends up excluding perfectly reliable evidence.  Nobody is saying that weapon wasn't there or that it wasn't possessed by the defendant.  In fact, the defendant must affirm that he possessed it in order to trigger the analysis that would lead to the use of the exclusionary rule.

Other possible remedies for the police misconduct could be used aside from excluding the evidence.  For example, the evidence could be admissible but the police officer could be disciplined or even prosecuted.  Our Courts, however, have for the time being concluded that the biggest and most effective deterrent to the police engaging in unconstitutional tactics to obtain evidence is the threat that the very case they are trying to build will be destroyed.  Also, the wrongdoing here is considered to be particularly dangerous since it targets some of our most fundamental rights as citizens of the United States, including our right to have privacy from the Government.

The Hearing and Finding of Facts

So, when there is physical evidence that the Government recovered as part of its investigation of the case, there will typically be a hearing where a Judge will hear from the Government about the circumstances of how the physical evidence came into the possession of the Government.  At this hearing, the defense will also be given the chance to call witnesses and present evidence.  Once both the defense and prosecution have concluded, the Judge must then decide two things. 

First the Judge must decide what happened (the facts).  This means that the Judge sets down exactly what he or she believes happened, blow by blow.  Second, the Judge then must answer the question, "Assuming the facts that I just listed, did the Government show that the police recovered the evidence according to the law?"  This means that the Judge applies existing law to the facts and makes a ruling.

It is important to remember that there may well be a difference between "reality" and "what the Judge decides about the facts".  This is not necessarily a flaw in the process.  This is simply a function of the fact that we are human and that the frailty of our human condition will always plague us.

Without some sort of perfect recording of a series of events, we are left to rely on witnesses to report what happened.  Witnesses are human.  They can be wrong because they are honestly just wrong, or they can be wrong because they have some motive to lie or exaggerate.  Witnesses can present a combination of honestly wrong, lying wrong, and exactly right testimony.

At one of these hearings, a police officer could be wrong because she is lying to cover up bad behavior that might lead to exclusion of evidence.  At the same hearing, a defendant could be wrong because she is lying to make it seem that the police acted badly.  Or both the police officer and the defendant could be honestly testifying to the facts they precisely remember, but they both could be just honestly wrong.

This problem of the potential of witnesses to be wrong for a variety of reasons is not unique to our criminal justice system.  It is a problem that confronts every human effort to get information from other humans.

And finally, after hearing these witnesses, it is the Judge who somehow must decide which witnesses to believe, or what part of each witness' testimony to believe and then come up with a story that sums up, to the best of the Judge's ability, the truth about what happened.  Do Judges have some sort of magic power that the rest of us don't have?  In NYC Judges are elected.  The last time you voted for a Judge, did you have any idea how well the candidate was able to to divine the truth about situations from listening to different witnesses?  Of course not.  Truth is that Judges use their life experience and general judgment like the rest of us.

So, sometimes, Judges will be exactly right in determining what "actually happened" and sometimes their determination of the "facts" of the case will be something else, perhaps related to reality, but containing error.  Again, this is not really to be avoided in any system.  Someone has to decide what happened and someone has to rule on it according to the law.

So I See How this Works Now, but Why Does This Mean that Evidence Doesn't Often Get Excluded?

Probably the first answer to this question is going to be that as a general rule, applying the law to the facts found by the Judge will mean that the law does not require exclusion.   The truth is that the law is not designed to make evidence easily excludable or excludable for frivolous reasons.  The law as it has developed over the years has developed any number of principles that give an enormous level of leeway to police officers to keep them safe, and to preserve evidence that might otherwise quickly disappear.  The notion that there are tricky little rules that trip up police into making mistakes that causes evidence to be excluded is just a fantasy.

The second answer to this question has to do with the timing of the hearing.  The issue about the admissibility of evidence is not decided up front.  Therefore, in many cases, the District Attorney's Office will take the position that if you press them to the point of having to conduct a hearing, they will not offer any settlement of the case.  This means that if a person charged, say with criminal possession of a weapon wants to see about winning exclusion of the gun from the case, he will have a difficult choice to make, even if his lawyer is telling him that he has a really good argument that the police acted incorrectly in recovering the gun from him somehow. Here's how this works:

Let's say a defendant is offered 3 years in prison now.  If he rejects it because he wants to have his hearing, he can have his hearing.  But if he loses, what if he faces a minimum of 8 years at trial, and up to 15?  And remember, if he loses, the gun comes into evidence and it could be that he doesn't really have any kind of credible defense to the possession.  (Say the gun was found in his pocket with his name on it, along with twenty pictures of him holding it.)  Losing the hearing, then, means having no real chance at trial, so losing the hearing means a minimum of 8 years in prison, and possibly up to 15.  So even if you think you have a great legal argument about how the police found the gun, do you roll those dice?  What if the Judge finds that what happened wasn't what actually happened?   How many years of your life are you willing to bet on the truth coming out in the end?  And let's just pretend that your legal issue was actually good and that you have an excellent chance of winning the appeal on the exclusion issue.  You will spend likely about 2 years in prison waiting for that appeal to be heard.  The offer is 3 years.  You can do one more year than the 2 and walk out of the door, or you can wait 2 years on your 8 year sentence for the hope that your appeal will be granted.  

So in this way, people who have perfectly legitimate claims to make perfectly legitimate arguments about exclusion of evidence will often choose not to make them because of the risks involved in pressing the claim.  This actually keeps many legitimate claims from ever being litigated in the first place.

Third, the impression that Judges sit by helplessly against tedious rules that tie their hands is downright ludicrous.  Because Judges decide the facts, they have enormous control, and because Judges also apply the law to those facts, they have even more enormous control, and because the law bends over backwards to make exclusion of evidence a rarity, this makes Judges far more instruments of INCLUSION than exclusion.

Significant evidence in serious cases just doesn't get excluded that often.  It is a non-existent problem in the criminal justice system.