Ahmed Ghailani's trial shows that courts should admit all reliable evidence.

The law, lawyers, and the court.
Nov. 19 2010 12:48 PM

"It Matters Not How You Get It"

Ahmed Ghailani's trial shows that courts should admit all reliable evidence.

(Continued from Page 1)

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.

Like Slate on Facebook. Follow us on Twitter.

TODAY IN SLATE

Doublex

Crying Rape

False rape accusations exist, and they are a serious problem.

Scotland Is Just the Beginning. Expect More Political Earthquakes in Europe.

Why Men Can Never Remember Anything

The XX Factor
Sept. 19 2014 1:11 PM Why Men Can Never Remember Anything

The Music Industry Is Ignoring Some of the Best Black Women Singing R&B

How Will You Carry Around Your Huge New iPhone? Apple Pants!

Medical Examiner

The Most Terrifying Thing About Ebola 

The disease threatens humanity by preying on humanity.

Television

The Other Huxtable Effect

Thirty years ago, The Cosby Show gave us one of TV’s great feminists.

There’s a Way to Keep Ex-Cons Out of Prison That Pays for Itself. Why Don’t More States Use It?

No, New York Times, Shonda Rhimes Is Not an “Angry Black Woman” 

Brow Beat
Sept. 19 2014 1:39 PM Shonda Rhimes Is Not an “Angry Black Woman,” New York Times. Neither Are Her Characters.
Behold
Sept. 19 2014 11:33 AM An Up-Close Look at the U.S.–Mexico Border
  News & Politics
Foreigners
Sept. 19 2014 1:56 PM Scotland’s Attack on the Status Quo Expect more political earthquakes across Europe.
  Business
Moneybox
Sept. 19 2014 12:09 PM How Accelerators Have Changed Startup Funding
  Life
Inside Higher Ed
Sept. 19 2014 1:34 PM Empty Seats, Fewer Donors? College football isn’t attracting the audience it used to.
  Double X
The XX Factor
Sept. 19 2014 1:11 PM Why Men Never Remember Anything
  Slate Plus
Slate Picks
Sept. 19 2014 12:00 PM What Happened at Slate This Week? The Slatest editor tells us to read well-informed skepticism, media criticism, and more.
  Arts
Movies
Sept. 19 2014 2:06 PM The Guest and Fort Bliss How do we tell the stories of soldiers returning home from war?
  Technology
Future Tense
Sept. 19 2014 12:38 PM Forward, March! Nine leading climate scientists urge you to attend the People’s Climate March.
  Health & Science
Medical Examiner
Sept. 19 2014 12:13 PM The Most Terrifying Thing About Ebola  The disease threatens humanity by preying on humanity.
  Sports
Sports Nut
Sept. 18 2014 11:42 AM Grandmaster Clash One of the most amazing feats in chess history just happened, and no one noticed.