Dagger in hand

A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand.

--Michel de Montaigne, Of the art of discussion.

Stab back: cmnewman99-at-yahoo.com


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Thursday, October 16, 2003
This hilarious recounting of a recent Supreme Court argument reminds of something I've thought for a long time. No, not that the 9th Circuit is wacky. I actually think its wackiness is largely overstated. It's that the "reasonableness" of a search should be decided by a jury. It's precisely the kind of context specific, sensibility-of-the-community kind of question that juries are supposed to decide. When courts decide these things they have to worry about precedential value, which leads to either an absurdity like the "leave in conditioner" rule, or (more often) a rule that is so deferential to cops it has hardly any teeth at all. In reality things are more nuanced, and juries are the ones who should be supervising whether their public servants are striking the right balance between respecting their rights and protecting them from crime.

Of course, it couldn't be the same jury that was supposed to try the case. What we should have is an evidence jury, drawn from the community in which the search took place. It gets presented with evidence as to the circumstances in which the search took place, what the cops knew before they performed it, and how they went about doing so. It does NOT get told what the cops found, or what the defendant is being charged with. The evidence jury decides whether, under all the circumstances, what the cops did was "reasonable." Then based on that the court excludes or admits the evidence, and off we go to the other jury who will try the merits.

The main objection I can see to this proposal is that it doesn't give the cops sufficient guidance as to what they can or can't do. I don't know. I suspect that the cops serving a particular community will get a sense as to the kinds of things those people consider "exigent" and the kinds of intrusions they consider unwarranted. They'll also have a strong incentive to build up the trust of the people in that community, so that their actions will be given more benefit of the doubt. And if a certain community tends to think you should need someone screaming bloody murder before the cops can bust a door in, then that's the standard the cops will be held to. Of course, the result of all this is that the goals and methods of law enforcement would have to be more attuned to the priorities of the community than those of the state. When it comes to the investigation of victimless crimes for example, juries would presumably tolerate less intrusion than they will when someone is in danger. So the community's view as to the importance of a particular law will affect the amount of leeway police have in enforcing it. Personally, I regard that as a good thing.

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