Wednesday, August 24, 2011

A Call to Reexamine the Exclusionary Rule

About two months ago, a friend of mine shared an article with me about Delaware pediatrician Earl Bradley. For the benefit of those who have no idea about who this Bradley guy is or what he did, well, he is a pedophile and sexual offender in the guise of a pediatrician. He sexually abused his child patients, some of whom were only months old (months old, for God's sake!) at the time of the commission of the offense against them. He videotaped his "sessions" with these children and one of the investigators of the case described the tapes as "one of the most violent and brutal attacks on a child of any age" that he had ever witnessed.

In one paragraph of the article, it was stated that Bradley's lawyers would convince the trial court to have the videotapes excluded, pursuant to the exclusionary rule, from being used as evidence for the prosecution as they were allegedly illegally seized. Again, for the benefit of those who are not too familiar with the concept of exclusionary rule, it is a legal principle which states that any evidence illegally seized or is procured through illegal search (which generally means that the seizure or search is not authorized by a lawfully secured search warrant, or that the search and seizure are attended by irregularities on the part of the law enforcement officers, or that the search and seizure are not effected under any of the established exceptions in which warrantless search and seizure are permitted by law) shall not be admissible in court. It simply means that any evidence obtained in such fashion shall not be considered by the court (or the jury, as the case may be) in determining an accused guilt (or in resolving a case of non-criminal nature.)

I may not have a personal stake in the case or I may not be the mother of one of the victims but upon reading that Bradley's lawyers would try to have the tapes excluded, I got a bit worried because insofar as the US is concerned, this rule is absolute, that is, any evidence illegally secured, no matter how strong and loud such evidence speaks of an accused's guilt or innocence, shall be entirely scrapped from the trial. If the trial court would grant the motion to exclude the tapes from the prosecution evidence, how else could this bastard's guilt be established? What happens now to the child victims? Should they be made to suffer and be eternally haunted by the sexual abuse they were subjected to at a time when they didn't even understand what sexual abuse actually is without being granted the justice they deserve just because of irregularities or errors that they had nothing to do with in the first place? (Thankfully, the trial court dismissed the defense lawyers' motion and convicted Bradley on 24 counts of rape, assault and sexual exploitation of a child in June 2011.)

It is in cases like this that the US and the Philippines (I disagree with the New York Times article's assertion that "The US is Alone in Rejecting All Evidence if Police Err". No, the US is not alone. The Philippines also adheres to an unqualified application of the exclusionary rule.) should revisit and reexamine this doctrine. To my mind, it is time that the rule be modified in such a way that criminals will no longer be allowed to avoid criminal penalty just because of  procedural or technical lapses on the part of the law enforcement authorities in seizing the evidence. Applying the rule in such a stringent manner indeed subverts the very essence of substantial justice and is tantamount to according more weight and significance to procedural rules and technicalities. Yes, the doctrine was carved out to protect people from arbitrary searches and seizures. But is this right to be free from capricious and malicious searches and seizures so important that it outweighs the victims' right to retribution and the state's duty to prosecute and punish the erring members of society?

A pedophile pediatrician sexually abuses and assaults his patients. He videotapes the acts. One of the tapes shows a two-year-old girl screaming in horror and trying to run away from this monster, who is angrily commanding her to perform oral sex on him. Another tape reveals the same man inappropriately touching a three-month-old boy's genitalia. Authorities discovers the crime. For fear that the pediatrician would destroy the tapes, the authorities confiscates them without a court-issued search warrant. The bastard is indicted on several counts of rape and sexual assault. His lawyer moves that the tapes be excluded from trial because they were illegally seized. The court, upon proper investigation, determines that the tapes were indeed taken without a search warrant. The court grants the motion. The prosecution has no other strong evidence other than the videotapes. The case goes to trial. The court rules that the prosecution failed to discharge the burden of proving the accused's guilt beyond reasonable doubt due to insufficiency of evidence and acquits the accused notwithstanding that, before the defense moved for the exclusion of the tapes, the court itself has viewed the contents of the tapes, showing the accused happily performing his beastly acts on the helpless children. Now tell me. Where is the justice in that?

The exclusionary rule may have sprung from the constitution, the fundamental law of a nation-state but that doesn't mean that its implementation should be too stringent and restrictive as to leave no room for disregarding it and setting it aside in highly meritorious cases. It must be borne in mind that, to borrow the wise declaration of St. Augstine of Hippo, an unjust law is no law at all.


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