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Join the conversation! There are now 8 comments on “Police vs Privacy pg 03
  1. Matt Holden says

    Unless Bill lives in NYC, and is black… then he gets stopped and frisked.

  2. ptrei says

    …or he’s a non-US person anywhere in the world, or an American who knows someone who knows someone who knows someone who knows someone foreign who is suspected of connection to terrorism, writ broad.

    • If those people are actually charged with a crime in a U.S. court, then it certainly matters whether members of U.S. law enforcement followed the rules.

      There’s a fascinating issue of how this would play out if the evidence wasn’t gathered by (or at the direction of) U.S. government agent, however. Let’s say you are being charged with a crime in Colorado, but most of the evidence against you was gathered in Cambodia by local Cambodian officials. Should the Colorado prosecutor not be allowed to introduce that evidence because the Cambodian officials didn’t follow American rules?

      On the international terrorism end of things, there is a great discussion to be had of whether — and to what extent — criminal law is even involved. It seems obvious that a domestic terrorist should be tried by a criminal court and afforded all constitutional protections. But there is strong debate over whether that applies to someone attacking from abroad. If it is strictly a matter of national security, then the constitutional protections really don’t apply — they only control what is permitted in a criminal prosecution. There would be some element of international law regulating what can and cannot be done in that case, but that’s an area of international law that’s only just starting to evolve.

  3. Gregory Bogosian says

    The victim’s reaction is missing. The officer gets his overtime. The defendant gets his freedom. But the victim doesn’t get his property back. If someone steals all of the money in my bank account, the police find a paper trail that shows who did it, but the courts suppress the evidence because the evidence was acquired unlawfully, then can I still sue them in civil court to get my money back or does the money become the thief’s property for all intents and purposes? Or is there a third option that I do not know about?

    • The victim’s reaction is irrelevant to criminal law.

      Criminal law is about whether the state can punish an offender. The victim isn’t a party to the case, but is merely a source of evidence. The prosecutor doesn’t represent the victim’s interests in restitution, but the state’s interest in punishment. Restitution may be ordered as part of a sentence, but it doesn’t have to be.

      But just as the victim’s rights aren’t part of the criminal case, whether the criminal case pans out or not has little bearing on the victim’s rights. Even if the criminal case gets dropped or dismissed, the victim can still exercise his rights. He seeks justice, not in criminal court where he is not a party, but in civil court.

      It is civil court, not criminal court, that is about righting wrongs. If someone harms you, you can sue them in civil court for money damages to “make you whole” and compensate you for the harm. If someone stole a particular thing, you can ask for a court order compelling them to give that thing back.

      The outcome — or even existence — of a criminal case doesn’t have much effect on exercising your rights in civil court. Different rules apply, they have different standards of proof, and they really are like apples and oranges, so what happens in one court doesn’t really carry over to the other one. It would be unjust to deny people their right to civil justice just because a prosecutor exercised her discretion not to prosecute someone, or because evidence strong enough for a civil case wasn’t enough to meet the higher burden in a criminal one. That’s how someone like O.J. Simpson can be acquitted and unpunished by the criminal courts, and found responsible and liable for money damages for the same act in civil court.

      In the example above, the guy apparently stole a coin collection. We don’t know that the collection itself was ever recovered by the police. If it was, it was probably saved to be used in evidence. Regardless of the outcome of the case, police departments typically have a procedure for property owners to reclaim their stuff afterwards. If the thief had already sold the coins, however, there’s nothing for the police to return, so the victim would have to sue the thief for the value of what was stolen.

      People do forget sometimes that civil law and criminal law are two entirely different and separate things (heck, I never knew this myself until after I started law school). That can lead to confusion when they expect the criminal law to enforce their rights against the offender. In criminal law it is the offender who has rights, not the victim. The only “justice” a victim typically gets from a criminal case is a sense of retribution — the offender got harmed, too. For the more meaningful justice of being restored or at least compensated, you need to take it to civil court. That’s what it’s for.

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