Well into the 19th century, this sensible view of the Fifth Amendment's letter and spirit dominated. Following a long line of earlier precedents, Congress during the Civil War passed a statute allowing the government to force criminal suspects to tell all pretrial and then to use the information to track down physical evidence or eyewitnesses. In debates over the bill, one senator minced no words: The suspect's interrogation might "lead to other testimony that may throw light on the subject, whereby in the concatenation of events he may be convicted of crime. Well, sir, I hope it will be so." With this understanding of the bill's basic purpose and effect, President Lincoln added his signature to the law in 1862.
In 1892, the Supreme Court cast aside this statute, and in a series of later rulings eventually turned the Fourth and Fifth Amendments upside-down. In effect, the court said that whenever an unreasonable Fourth Amendment search or seizure had taken place, or whenever a suspect had been required to provide information or leads to investigators, all the reliable evidence generated by these actions—the "fruits" of the search, seizure, or interrogation—must be excluded from the criminal courtroom even if (indeed, especially if) these fruits are extremely reliable evidence of the criminal's guilt. This is the so-called "exclusionary rule," and it is a pure judicial creation, providing windfalls for the guilty and no real comfort for innocent victims of government misconduct.
These modern rulings are the real problem. And they would probably have tripped up the prosecution in the same way if Ghailani had been tried in a military proceeding, as my friend Morris Davis, former chief prosecutor for the military commissions at Guantanamo, explains in a New York Times op-ed.
How to fix this? If the current justices want to begin to set things right, in a way that minimizes discontinuity, there are several obvious ways to start. To begin with, the high court could categorically hold that even if physical evidence must sometimes be suppressed, live witnesses, who, after all, speak based on their own free will, should never be muzzled. The court in 1978 hinted this but failed to lay down a clear rule, leading to confusion, like Judge Kaplan's in this case.
In addition, the Court could expand an important limitation on the exclusionary rule known as "inevitable discovery." This standard allows the government to use evidence that would have eventually surfaced regardless of any coerced confession or improper search. Courts thus should strongly—perhaps irrefutably—presume that a witness's conscience would have impelled him to come forward on his own.
Finally, the court could make clear that in situations of ongoing criminality—whether a kidnapping-in-progress, a domestic conspiracy among mobsters, or international terrorism—government may properly oblige suspects to tell everything they know. Because there is an urgent need to find the kidnapping victim or the ticking bomb or the details of some future bomb plot, the rules that regulate ordinary completed crimes do not mechanically apply. In the situation of an ongoing crime, the government is not merely trying to solve one crime but also to prevent the next one. That should make a difference in court.
This week's acquittals should be a wake-up call to us all. It's time to refocus the criminal justice system on its central purposes—finding the truth about whether the defendant did in fact commit the crime, and allowing the public and the jury to hear all reliable evidence on both sides.
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