the exclusionary rule and other remedies

Dr. Nguyen; chapter 2 Criminal Procedure the 3rd edition.

Remedy

–A method of rectifying wrongdoing

–Mechanism for enforcing violations of people’s rights.

Legal remedies

–Made available by law, court decision, police agency policy or procedure

Extralegal remedies

–Conducted outside the legal process

–Vigilantism (an act of preventing, investigating, and punishing perceived offenses and crimes without legal authority.

Silverthorne Lumber Co. v. U.S

created the “fruit of the poisonous tree” doctrine

Fruit of the poisonous tree doctrine

–An extension of the exclusionary rule. Anything obtained from the poisonous tree is considered a forbidden fruit and is not admissible at trial.

Purged taint (exception)

permits the introduction of evidence if it has become attenuated to the extent that it dissipated the taint of the initial unconstitutional act. (waters down the strength of the evidence)

Independent source (exception)

permits the introduction of evidence if it has arrived via an independent source, such as a party disconnected from the case at hand.

Inevitable discovery (exception)

permits the introduction of evidence if it would have been discovered anyway.

18 U.S.C Section 242

used to prosecute either a state or a federal law enforcement officer.

Color of Law

when the officer acts in an official capacity:

–They have identified themselves as police officers.

–They are performing a criminal investigation.

–They have filed official police documents.

–They are making an arrest.

–They are invoking police powers in or outside their jurisdiction.

–They are settling a personal vendetta with police power.

–They are displaying weapons or police equipment.

Qualified Immunity

legal immunity that protects a government official from lawsuits alleging that the official violated a plaintiff's rights, only allowing suits where officials violated a “clearly established” statutory or constitutional right.

Public Duty Defense

shields police officers from criminal liability in nondeadly and deadly force incidents

Deadly Force

use to prevent a felony if he or she reasonably believes that the other person poses a significant threat of death or serious bodily injury to the officer or others. (Tennessee v. Garner).

Nondeadly force

is unlikely to cause death or significant bodily harm.

–To apprehend a suspect

–To overcome resistance

–To apprehend a fleeing perpetrator

42 U.S.C Section 1983

–Provides a remedy in federal court for the deprivation of any rights secured by the Constitution and laws of the United States.

–The defendant (law enforcement), person being sued, must acted under the “color of law” in an official capacity.

Peace Officer Standards and Training Program (POST)

regulatory program with responsibility for licensing peace officers, ensuring compliance with peace officer continuing education requirements, and conducting investigations for disciplining the licenses of peace officers as specified by Chapter 590, RSMo

State certification/ decertification of officers

• States should only permit officers certified to exercise policing powers to do so, and they should certify only those officers who meet carefully considered state standards for qualifications and training. Except in exceptional circumstances, states should not certify an officer who has been decertified in that state or in another state.

• States should decertify officers who fail to meet ongoing requirements for certification or who commit acts warranting decertification

Agency Reporting and Hiring Obligations

• Agencies should report arrests of, convictions of, or serious misconduct by officers, as well as officer terminations, to the state agency responsible for decertification, and states should mandate that they do so.

• Except in exceptional circumstances, agencies should not hire an officer who has been decertified in another state

National Decertification Index (NDI)

a national registry of certificate or license revocation actions relating to officer misconduct.

Criteria for decertification

•Dishonesty relating to the reporting, investigation, or prosecution of a crime, or relating to the reporting of, or investigation of misconduct by, a peace officer.

•Abuse of power, including, but not limited to, intimidating witnesses, knowingly obtaining a false confession, and knowingly making a false arrest.

•Physical abuse, including, but not limited to, the excessive or unreasonable use of force.

•Sexual assault shall extend to acts committed amongst members of any law enforcement agency.

•Demonstrating bias on the basis of actual or perceived race, national origin, religion, gender identity or expression, housing status, sexual orientation, mental or physical disability, or other protected status in violation of law or department policy or inconsistent with a peace officer's obligation to carry out their duties in a fair and unbiased manner.

•Acts that violate the law and are sufficiently egregious or repeated as to be inconsistent with a peace officer's obligation to uphold the law or respect the rights of members of the public.

•Participation in a law enforcement gang. 

•Failure to cooperate with an investigation into potential police misconduct. 

•Failure to intercede when present and observing another officer using force that is clearly beyond that which is necessary, as determined by an objectively reasonable officer under the circumstances.