You Aren't in Kansas Anymore. Exclusion of Evidence in Criminal Cases Isn't Like the Movies
Article updated March 23, 2018
One of my all time favorite criminal law related movie scenes is a scene from the classic Clint Eastwood movie Dirty Harry, where Harry is brought into the District Attorney's office and advised by the DA, along with a "Judge from the appellate court" that the rifle murder weapon Harry recovered would be inadmissible at trial and that as a result of this assessment, the DA wasn't going to "waste taxpayer money" in a trial "he couldn't win." (Here is a link to this all time favorite criminal law movie scene.)
There are several parts of this of this scene that are so wrong as make this scene the equivalent of a Three Stooges comedy routine to anyone who has experience in the Criminal Justice System. This scene is representative of what I see as the Great Media Lie about how the criminal justice system in the United States operates. On its surface, it portrays law enforcement and the judiciary as so hamstrung by crazy rules that Harry (and we in the audience) can't understand. The DA himself is so beaten down by these crazy rules that he doesn't even bring the case to begin with because he is so certain that the gun will be excluded. He is going to release a murderer without even trying to pursue the case.
Of course the reality is that everything about this scene, every SINGLE thing about it is utterly, completely, totally wrong. Play this scene to a room full of experienced criminal defense lawyers and you will bring down the house with laughter. Tell an experienced criminal defense lawyer that you fully expect to get significant evidence excluded from a criminal case because of a search and seizure violation, and the only reason he or she will not laugh in your face is out of politeness.
This classic portrayal of the criminal justice system as one which regularly results in significant evidence being excluded to the glee of drooling criminals as they emerge triumphant from custody back into our midst is about as upside down a portrayal of reality as possible. It makes for good stories maybe, and creates the outrage to cheer for Clint Eastwood as Dirty Harry. And if it ended there, then it would be all in good fun and no cause for concern at all.
But the problem is that my experience as a criminal defense lawyer, in talking with scores of people about their criminal cases is that people in general tend to believe that this media portrayal of the criminal justice system is actually pretty much the way it is. If I had a nickel for every person who talked about the possibility of "getting evidence thrown out" as if it were the equivalent of swatting a mosquito, I would be a wealthy man.
Of course it does require a bit of explanation to understand why it is that significant evidence is rarely excluded in criminal cases as a result of search and seizure violations. In order to avoid living in the world and making decisions in the world based on wrong information, it would be wise for people to understand this. I think that people who are arrested often underestimate the seriousness of their situations because their impression is that the criminal justice system is something of a pushover, that "criminals have all the rights", and that armed with the right lawyer, you can walk away from anything.
So here is a bit of background about search and seizure that should help put things into perspective for you. It is a worthwhile perspective to have, especially to help guide people away from getting within a mile of conduct that could get them caught up in the criminal justice system.
The Basic Idea of Search and Seizure Law
The basic idea behind rules about search and seizure (Fourth Amendment rules) is that we here in American society enjoy a certain serious level of privacy from the eyes of the Government. Search and Seizure issues are about privacy. But privacy from whom? Mom? Is it a violation of the Fourth Amendment for mom to rifle through your dresser drawers in your bedroom? If mom finds a bag of marijuana in your dresser and calls the police about it, do you have a search and seizure issue from the 4th Amendment? Of course not. The framers of the Constitution did not write the Fourth Amendment because they were concerned about your mother.
The Fourth Amendment search and seizure rules are meant to protect our privacy against the Government. Your mother can kick down your bedroom door at 2am, strip search you, and then go through your personal diary that you keep under your bed. Whatever else that may be, it most certainly isn't a violation of the Fourth Amendment because your mother is not the Government. She may be the unquestioned ruler of your home, but she is not the Government and the Fourth Amendment is powerless to stop her.
But if the police kick down your bedroom door at 2am, strip search, and then go through your personal diary, they better have a good reason. The location and timing and items searched in this scenario all scream "PRIVACY".
The Government Needs a Good Reason to Violate Your Privacy
The Government is allowed to violate your privacy to enforce the laws as long as it has a good reason. As important as our society believes privacy from the Government to be, we do not believe that everyone in all circumstances has the same unlimited right to absolute privacy. Therefore, search and seizure law has developed and continues to develop rules that govern the whens, the wheres, the under what circumstances, and the how fars of Government intrusion into people's privacy.
And although there are obviously many different ways these issues could be resolved, our courts have developed an analysis that basically answers the question about "how far can the Government go?" with a typical lawyer answer of "It depends." Of course that is a massive oversimplification of it, and the real answer could fill volumes, but this is the essence of it.
A bit more specifically, the analysis of police conduct when someone claims an invasion of privacy that violates the Fourth Amendment, is that the answer will depend on "the totality of the circumstances" measured against that level of intrusion into privacy that "society would be prepared to accept as reasonable". These ideas are obviously very flexible and subject to fair debate among reasonable people.
How are Judges Supposed to Decide These Issues with such "flexible" standards?
Judges are required to make assessments of the "totality of the circumstances" (the facts of the case) and compare those circumstances to an assessment of what the judge believes society would be prepared to accept as reasonable. To help the judge decide what society would be prepared to accept as reasonable, we have a huge body of cases that have been decided before, where judges have made these sorts of assessments, and often there may be similar cases that might support a Judge's ideas about what society would accept as reasonable or reject as unreasonable.
This means, that before there can be a ruling about whether the Government's conduct violated someone's privacy rights protected by the Fourth Amendment, a Judge must hold a hearing and hear evidence about what happened. This hearing will be about how and why the Government agents (usually the police) obtained the evidence, and it will not be about the crime that the defendant is being accused of. The Judge will hear from the police who recovered the evidence, and might hear from the defendant himself or other witnesses if the defense believes other witnesses can add to the Judge's understanding of the totality of the circumstances. At the conclusion of the hearing, the prosecutor and the defense lawyer will make arguments to the Judge about whether the police conduct under the totality of the circumstances violated the accused's "reasonable expectations of privacy". To support their arguments, each lawyer may try to identify previous cases, already decided by judges, where the facts were so similar that the judge at this hearing should decide the same way. Obviously a defense lawyer is likely to be identifying cases with similar facts where a judge held that the Fourth Amendment privacy rights were violated, and the prosecutor is likely to be identifying cases with opposite conclusions.
Once these arguments are made, the Judge must then first decide what the facts are. This is trickier and more important than it sounds. In determining the facts after a hearing, a Judge often must make determinations about contested issues. If a police officer says, "When I walked up to the driver's window, I observed the butt of a gun sticking out from under a jacket on the passenger seat" but the defendant says, "The police officer ordered me out of the car and immediately searched it, where he found the gun under the passenger seat of the vehicle in a shoe box." the Judge must make a choice. The Judge must decide what "facts" upon which to base her decision. This means that the Judge must make a credibility decision about which witness to believe. It could very well be, and in fact is often the case, that the difference between two witness' testimony could mean the difference between two different outcomes.
After the Judge decides what are the facts, then the Judge must apply her understanding of the law to those facts. The Judge of course will consider the arguments of the lawyers and will review the cases presented by the lawyers, and the Judge may also do research on her own and identify other cases to help her decide the case at hand.
What is at Stake in a Search and Seizure Privacy Hearing?
The stakes at a search and seizure privacy hearing are the Government's ability to use the evidence recovered at a trial. If a Judge decides that the Government violated the defendant's privacy rights, the remedy for this sort of a violation is that the evidence the Government obtained by violating the law will be considered inadmissible at the defendant's trial. This principle is called the "exclusionary rule" because through application of the rule evidence can be "excluded" from a trial.
The exclusionary rule is not without critics. The exclusionary rule is not actually written into the Fourth Amendment. The Fourth Amendment is completely silent about what the remedy is or should be for a violation of the Fourth Amendment. The exclusionary rule as we know it today is actually a fairly recent creature of the law. If you read the Fourth Amendment literally, it is a right without a remedy - perhaps evidence of a general ideal but not something meant to have any consequence.
Critics also argue that perfectly good, reliable evidence will be excluded from criminal cases, making it difficult or even in some cases impossible for the Government to convict obviously guilty people and therefore guilty people will gain the benefit of a rule meant to protect law abiding people. Critics say that it would be more appropriate to discipline or even prosecute the police who violate the law rather than to reward the criminals.
Proponents of the exclusionary rule argue that it would be absurd to enshrine such an important right in our Constitution but not have this right have any teeth to see that it is enforced. Proponents also argue that the exclusionary rule is good as a deterrent to police misconduct. If the police know that behaving badly and violating the law could end up causing a bad guy to escape justice, that the police are going to be deterred from the bad conduct and behave appropriately. Finally, proponents argue that our Government should not ever be permitted violate the law, especially our most precious basic freedoms, and gain even the smallest benefit from that violation. The thinking is that we have far more to fear from a Government that does not feel bound to follow the law than we have to fear from any one individual person accused of a crime, even if that person is guilty of that crime. The thinking is that our Constitution is designed to protect us from Government bad behavior toward us, and that it is not so much concerned over individual bad behavior.
But the end result is that if the Judge, at the conclusion of the hearing, decides that the Government violated the Fourth Amendment privacy rules, the evidence in question is excluded from the Government's case.
In some cases, this can mean that the Government's case is all but impossible to win. For example, if the case is a "criminal possession of a weapon in the second degree" case, and a Judge determines that the gun was recovered by the police in violation of the privacy rules of the Fourth Amendment, then the gun is excluded from trial. In the absence of the physical gun or even testimony about the gun, it is hard to conceive how the Government could press a case of criminal possession of a weapon. Therefore, in such a circumstance, the Government would likely concede and dismiss the case rather than to conduct a trial where it could not discuss nor introduce a weapon.
In other cases, however, exclusion of evidence can be annoying to the Government, but not critical. Exclusion of a bag of marijuana recovered from the pocket of a person charged in a murder case is not likely to influence the prosecution of the murder case in any substantive way. Sometimes, people are under the mistaken impression that any violation of an accused rights someone results in a dismissal of the case as a whole. This is never true. Never has been true. Never will be true. Exclusion of the specific evidence that is the subject of the exclusion motion is the remedy and the only remedy.
Why Exclusion of Significant Evidence in a Criminal Case is Very Rare
Several reasons combine to make exclusion of significant evidence in criminal cases very rare.
The Rules Aren't as Crazy as People Imagine
First, the rules themselves, as they have been formulated and applied over the years by our Courts are not crazy, impossible to understand, ridiculous technicalities, as movies and television shows would have you believe. Also, the police, and you may be surprised to hear this from a criminal defense lawyer, are not out there constantly looking to violate people's privacy rights. Most police do not wake up every day thinking about whose rights they will trample upon today. They are doing a job they believe to be important and they take it and themselves very seriously. A significant portion of interactions between the police and the public are going to be well within the rules as those rules are currently represented and applied by the Courts. Young defense lawyers, and I include myself in this category when I was first starting out, tend to be of the mindset that there is some sort of scandal to uncover in every single exclusion hearing. With age and experience comes the realization that sometimes, the officer is just doing his job as best he or she can and isn't trying to screw somebody over. Not every case involves a Fourth Amendment privacy violation to begin with.
Timing is Everything - Especially in Evidence Exclusion Hearings
Second, the timing of the exclusion hearing, if there is one, can make pushing the issue a dangerous gamble. Exclusion hearings are considered pretrial hearings about whether evidence is going to be admitted at a trial. This means that they are held, if at all, just before trial begins. In some counties in New York City, just before trial means, literally, just before trial. After the hearing is over, the jury panel is brought in for jury selection to commence.
In order to get that far into a case, where you are at the point of doing the exclusion hearing, that means that you have had to reject all negotiations on the case. Rejecting all negotiations on the case is fine if you have a great case to take to trial and a respectable shot at victory at a trial. But rejecting all negotiations when you don't really have a shot a trial is very dangerous indeed.
Allow me to illustrate. Suppose you are arrested for criminal possession of a weapon. You were walking on the street, there was some encounter with a police officer that ended with the police officer finding a gun in your jacket pocket. You believe that the police officer violated your privacy rights under the Fourth Amendment in the way he dealt with you and located the weapon. Your lawyer says that depending on how the Judge decides the facts after the hearing, you might have a good chance of success to get the gun excluded. If the Judge decides the facts as you have described them, then the law is clear. If the Judge decides the facts in some other way, then the law could be equally clear that the police officer acted properly. The problem is that until you get to the hearing, you and your lawyer are unlikely to have clear information about exactly what the police officer or other potential witnesses might say at the exclusion hearing. New York State discovery rules in criminal cases make this uncertainty possible. This means that you would be rejecting all negotiations and putting the case on track for trial when you have no specific ideas about how the evidence is going to come out or whether the Government's witnesses will appear believable or not.
If your gamble pays off, and you win the suppression hearing, then great. The case could end up dismissed. On the other hand, if the gamble doesn't pay off - if the police officer tells a very different and believable story that the Judge accepts, then you lose the hearing. It might be tempting to say that OK then you would negotiate. But here's the problem with that. In most situations in New York City, forcing the prosecutor to bring the case along to the point of a hearing and on the brink of trial means that they will no longer negotiate. At that point, you will be forced to a trial - a trial that, in this case, where the gun is found in your jacket pocket, that you are unlikely to have a prayer at winning. You likely have a better chance on appeal on the exclusion issue than winning such a trial. Assuming you have no criminal history, the best you can get after a loss at trial is 3 1/2 years and you would be looking at up to 15. You should know also that the general thinking is that forcing a trial in such a situation might make unlikely that a Judge would give you the minimum. There is not supposed to be a "trial penalty" for exercising your right to a trial, but...
So, early on in the case, maybe a potentially good (for you) search issue can get you a better offer from the prosecutor to resolve the case, but they are unlikely to quiver in their boots at the prospect of having to do an exclusionary hearing. If the offer you get up front is far better than the minimum that you will face if you lose the exclusion hearing a year later, that can be a very tempting situation. In this way, many perfectly good search issues are abandoned because they never make it to Court.
Temptations for "Testilying"
Third, there is some thinking that the temptation to occasionally adjust their testimony to make sure that evidence does not get excluded is going to be impossible for some police officers to resist. Of course all witnesses are capable of lying or "adjusting" their testimony a little here and there. We would like to believe that the police would do that less than other categories of witnesses. But it does happen. In New York City, the phenomenon was common enough or commonly spoke of enough to have earned a nickname among the police. It was a practice that came to be known in the police department as "testilying". The hope is that this practice has since been squelched or diminished since it was outed. (UPDATE: Note that The New York Times, on March 18, 2018, published an in-depth article about the phenomenon of "testilying" in New York City Criminal Courts, with a particular emphasis on its impact on evidence exclusion hearings. Click here for a link to the article about "testilying" in New York City Criminal Courts.)
Credibility is Not Often Subject to Appeal - What the Judge Says Goes (Mostly)
Finally, many exclusion hearings come down to the issue of credibility on a couple key facts, and the only possible witnesses will be the police officer and the defendant. In a vast number of situations it will be hard for a defendant to take the witness stand at an exclusion hearing and come across in a way that will seem credible to the Judge who will make the decision. Right off the bat, the defendant has an obvious self interest in the outcome of the hearing that is impossible to deny and impossible for a Judge not to consider to some degree. If the defendant also has a criminal record, this will be the subject of cross examination and another factor for a Judge to consider on the issue of credibility.
You should know as well, and this is something that Judges certainly know well, that determinations of credibility are almost never disturbed on appeal. Once a judge says, "I saw and heard the witness testify and I found him to be credible." that statement all but seals the deal forever in all but the rarest of circumstances. Therefore, since most exclusion hearings come down at some level to issues of credibility, Judges have the power to do what they like without significant fear of reversal, as long as the decision is grounded in a determination of the credibility of a witness. This is not to suggest that Judges "do what they like" without regard to their honest views of the facts and the law, but it is simply meant to illustrate that Judges are not "hamstrung" by anything and that in the case of exclusionary hearings, they wield substantial and ultimate power.
So How Often Does Evidence Really Get Excluded?
Almost never is the answer, especially if you are talking about significant evidence in serious cases. Even criminal lawyers who have been practicing for decades will have a relatively short list of cases where significant evidence has been excluded in serious cases. Exclusion of evidence is a rare achievement, impossible to predict with great certainty, because the outcome is so dependent on the facts that actually get decided at the hearing. Therefore, lawyers who profess certainty early on in a case about "getting evidence excluded" or "getting cases dismissed" because of a Fourth Amendment violation are behaving recklessly at best.
So rare is the "good" search issue that I recently went out of my way to take on a case for a substantially reduced fee solely because what I thought was a miracle of an exclusion case came to me. For several reasons, I thought that this case was one where 1) I might well have a decent search issue, and 2) the issue would have to actually go to a hearing because the Government was unlikely to want to make a decent offer to the defendant. As it turned out, the case played out to the hearing, and the search issues played out differently than I had expected but still in a good way for the search issue. I wrote a 40 page argument for the judge on the point, the Judge granted the exclusion, and the client's case was dismissed. (It was a criminal possession of a weapon second degree charge, gun in a car, case.) Far from an ordinary day at the office, I felt like Luke Skywalker after blowing up the Death Star.
By Don Murray, Esq.
Don Murray is 27 year veteran New York City Criminal Lawyer, and founding partner of Shalley and Murray. He has provided testimony in an international extradition matter as an expert in New York Criminal law, he has written a chapter for a multi-volume series of books for criminal defense lawyers, and he has consulted on various television and movie projects involving New York Criminal law. Most recently he consulted on set for the NBC mini series, The Slap, where he was rewarded for his assistance by being allowed to appear briefly in the show (as an extra). He can be reached for consultation at 718-268-2171.
Come back in the coming days for the follow up articles in this series of articles about what our kids should know about Criminal Law. Up next: "Miranda - The Biggest Joke of the Criminal Justice System"