Exclusionary Rule ACG 69354939 Why Should The Forensic

Exclusionary Rule ACG 6935/4939

Why Should The Forensic Accountant Care About Rules Relating To Law Enforcement Actions? I’m not crazy enough to want to be an FBI Agent!

Because the U. S. Government is Here To Help You! • FBI has access to more information. • Relevant facts come out in trial or through plea agreement. • If a defendant pleads guilty to a criminal charge, civil case is greatly enhanced.

What was the Court trying to do with the Exclusionary Rule? • Protect the Bill of Rights • Deter illegal police searches • Ensure the government will not profit from the unlawful activity • Uphold Judicial Integrity

So how does one move for exclusion of specific evidence?

Grand Jury Indictment Flow of Court Processes With Exclusionary Rule Issues Arrest of Subject Initial Appearance Arraignment Motion to Suppression Hearing Trial Appeal

Exclusionary Rule is based on. . • Fourth Amendment Rights - unreasonable search and seizures • Fifth Amendment Rights - right against selfincrimination • Sixth Amendment Rights - assistance of counsel • Due Process

Fourth Amendment • Weeks v. U. S. , 232 U. S. 383 (1914) introduced the exclusionary rule • Derived from the Fourth Amendment • Prohibits the use of items obtained as a result of an unreasonable search and seizure as evidence against a criminal defendant • Mapp v. Ohio 367 U. S. 643 (1961) made the exclusionary rule applicable to States

Fifth Amendment • • Miranda Rights Compulsion issues Coercion Provide protection to those accused of committing crimes • Is Miranda in the Constitution?

Sixth Amendment • Right to Counsel • When does right to counsel attach? • During Investigation? • After Arrest? • Before 1 st Hearing? • What about in the workplace?

As with any rule, there are. . . Exceptions!

The Good Faith Rule • Some Supreme Court Justices thought the pendulum has swung too far. • U. S. v. Leon (1984) • Evidence obtained by officers acting “in good faith” does not have to be excluded

Examples • What if a judge issues a valid search warrant which has reasonable probable cause but is later overturned on appeal? • What if the warrant is factually deficient but the judge issues the search warrant anyway? • What if false information is given to the judge? • What if the officers know the judge has “wholly abandoned the judicial role”?

Fruit of the Poisonous Tree • Involves Derivative Evidence • Rules the police should not be allowed to enjoy the “fruits” obtained from illegal searches and seizures • Can also apply to illegal statements from defendants

Scenario #1 • An illegal search yields a machine that makes fraudulent credit cards • The grand jury issues a subpoena and obtains a receipt showing the purchase of the machine.

Scenario #2 • Police illegally obtain a confession from a murder suspect. • He tells them he hid the gun in an abandoned house which had been boarded up.

Scenario #3 • Police obtain an illegal confession from a murder suspect. • The defendant tells police he hid the gun in a bush at the local public park.

The “Inevitable Discovery” Rule • Does not bar admission of illegally obtained evidence if such evidence would have been “inevitably”discovered. • Has to be discovered through an “untainted” source • Preponderance of the evidence standard needed

Independent Source Doctrine • Source producing the evidence stands apart from the influence of the 4 th Amendment violation. • Can not be Fruit of the Poisonous Tree or derivative of other violation

Purged Taint • No independent source or inevitable discovery. • Evidence need not necessarily be banned. • What actions were in direct relation to the violation and what were voluntary?

Example #4 • T. N. Tee is arrested on bomb making charges based on a false affidavit. • T. N. Tee confesses to possessing illegal bomb making materials. • After being released on bond, T. N. Tee contacts the police a few days later and tells them of a storage locker containing bombs. • What would Judge Pacini allow at trial?

Plain View Doctrine • Items that are readily seen. • Can be seized even though there may be no valid search warrant. • Police must have a valid reason to be in the area of seizure.

Exigent Circumstances • Situation where there is the potential for serious bodily harm if no action is taken. • Fire in building • 9 -1 -1 call • Shots fired • O. J. Simpson case

Suspect Statements as “Fruit of the Poisonous Tree. ” • Deals with the issue of Miranda • No derivative use as well • Has fifth and sixth amendment tie-ins • Not completely inadmissible given certain events

You Decide! • Suspect blurts out an incriminating statement? • Suspect confesses without Miranda and then later gets Miranda Warnings and gives another confession? • Suspect’s statement is suppressed but in pursuant trial, suspect takes stand lies about his involvement contradicting the original statement?

Impeachment • Illegally obtained statements and physical evidence are allowed at trial if the defendant takes the stand offers contradictory statements. • Exception is immunized statements

Spontaneous Utterance • An unsolicited statement made by the defendant. • Direct and derivative uses are acceptable. • What is the time frame for an acceptable “spontaneous utterance”?

Voluntariness vs. Compulsion • Was the statement made voluntarily? • Where was the statement made? • When was the statement made? • Miranda?

You Decide

Can this evidence be used in a …