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Roger
Roger, Attorney
Category: Personal Injury Law
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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There are those who say, as did Justice (then Judge) Cardozo,

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There are those who say, as did Justice (then Judge) Cardozo, that under our constitutional exclusionary doctrine "[t]he criminal is to go free because the constable has blundered." People v. Defore, 242 N. Y., at 21, 150 N. E., at 587.
can you tell me what this exclusionary rule is applying to is it a procedure that was not followed, or if this has been overruled by another court thank you!
Submitted: 1 year ago.
Category: Personal Injury Law
Expert:  Roger replied 1 year ago.

Kirk Adams :

Hi - thanks for looking me up!

Kirk Adams :

Yes, the "exclusionary rule" stems from the 4th Amendment and it is intended to protect citizens from illegal searches and seizures. Also, the exclusionary rule also provides a remedy for a defendant when law enforcement illegally gathers evidence in violation of the Fifth Amendment in the Bill of Rights.

Kirk Adams :

If an investigation involves collecting evidence illegally, that evidence is inadmissible at trial.

Kirk Adams :

Most of these cases stem from an illegal search and seizure, which would be a break down in procedure.

Customer:

hi you doing esq. adams

Kirk Adams :

Just fine, Thanks. And you?

Customer:

glad to hear im ok

Customer:

would that only deal with the forbidden fruit rule or any procedural violation

Customer:

that an officer has blundered on

Kirk Adams :

Also, the exclusionary rule is still applicable law, and it stems from the federal constitution, but all state constitutions and subsequent state laws maintain this rule.

Kirk Adams :

The exclusionary rule generally just deals with "fruit of the poisonous tree" and not every procedural violation.

Kirk Adams :

The exclusionary rule is the term if there's an issue of illegally obtained evidence by the prosecution/law enforcement.

Customer:

ok so when that justice made that statement he was referring to the poisonos tree

Customer:

i also read were in a case law were trial by ambush are not accepted and

Kirk Adams :

I haven't read the case, but yes that should be the case.....The statement that the "constable has blundered" would likely mean just that. I'll take a look at the case and let you know for sure.

Customer:

that the

Kirk Adams :

Here's a quick summary of the case:

Kirk Adams :

FACTS: A police officer arrested defendant on a charge that he had stolen an overcoat. The crime, if committed, was petit larceny, a misdemeanor. Defendant when taken into custody was in the hall of his boarding house. After making the arrest, the officer, without a warrant, entered defendant's room and searched it. The search produced a bag containing a blackjack and a hat. Defendant was acquitted of larceny, but indicted as a second offender for the possession of the weapon. On appeal, the court held that the arrest was not lawful, so there was no lawful arrest to which the search could be an incident. The evidence against defendant was the outcome of a trespass, and the officer could have been held responsible civilly, and perhaps criminally, but his testimony was not thereby incompetent. Regarding the blackjack, as it was contraband, it could be offered in evidence without trenching upon the privilege in respect of self-incrimination whether seizure was made with warrant or without, and as the bag and hat were offered in evidence with it, all were admissible. The court held that the due process clause requirement of the Fourteenth Amendment was not violated.

OUTCOME: The judgment of conviction was affirmed.

Kirk Adams :

So yes, the case was about fruit of the poisonous tree and the inadmissibility of illegally obtained evidence.

Customer:

i also read were in a case law were trial by ambush are not accepted and that the prosecution disclose all material in there possession and control, would this be a violation if these things occurred and would it be an abuse of discretion if the judge allowed it

Kirk Adams : YES, that's true.
Kirk Adams : In the "old days" before the rules of procedure and evidence, every trial was a trial by ambush like you see in the old Perry Mason shows - - because the parties didn't share information.
Customer:

lol

Kirk Adams : Now, each party knows everything the other side has before tria.
Customer:

wouldn't this prove also that a person was not aware that thier was going to be a trial because the state is to produce the witness list for the trial

Kirk Adams : Possibly. A caveat to the disclosure rules is that the other party MUST ask for information and documentation during disovery in order for the other side to be entitled to the information.
Kirk Adams : So, if you asked for it, and it wasn't given, then the answer would likely be yes.
Customer:

i read this in Parlapiano v. District Court In & For Tenth Jud. Dist., 491 P. 2d 965 - Colo: Supreme Court 1971


We adopt the reasoning of Wimberly, and of American Bar Association Standards Relating to Discovery and Procedure Before Trial, § 2.1(a), which reads as follows:


"(a) Except as is otherwise provided as to matters not subject to disclosure (section 2.6) and protective orders (section 4.4), the prosecuting attorney shall disclose to defense counsel the following material and information within his possession or control:
Customer:

it doesnt mention he has to ask, however; a person could ask if they were aware that a trial is coming up this would give them the incentive to prepare for the trial would you agree?

Kirk Adams : Every state has different rules on the issue, so be aware of that.
Customer:

ok in ohio is it different

Customer:

it stated the rule is from the canons of the bar association

Kirk Adams : The safest thing is always to ask for the info in discovery.
Kirk Adams : Also, if the court entered a scheduling order requiring these disclosures, then you could rely on that as well.
Customer:

well im just reviewing a case were a guy i know was seven pretrial he was giving a yellow paper were the date for him to return on nothing more he griped about the speedy trial throughout procedures on the next date they start putting together a jury

Customer:

he objected

Customer:

the court never entered anything

Customer:

scheduling hearing but another date pretrial

Customer:

last one it was past 90 day stat period they dismissed his motion to dismiss on the speedy trial bases a went on with trial

Kirk Adams : Speedy trial motions are rarely ever granted because most courts are so back logged that any delay can be justified or explained.
Customer:

thats the problem it was explained officers appeared at last few hearing but because he wouldn't cop out they kept on postponing it

Customer:

and they have it written in the journal entry that he requested but he didnt he never did he kept contesting it

Customer:

i mean it was not explained

Customer:

and the officers he was going to get witnesses was not available for him

Customer:

because the never gave an accurate time

Kirk Adams : Appeals courts reverse decisions of trial courts every day.
Kirk Adams : That's something that could be appealed and argued to the next court, and the appeals court certainly could find that the trial court made a mistake.
Customer:

but from what i mentioned if its correct about him saying on the record he objects and asserting his right that can be found on the transcript and the journal entry reflecting something else would that be abuse of discretion in your opinion

Kirk Adams : If the judge never addressed his objection, that would be strange and should be a ground to appeal.
Customer:

esq. adams wanted to ask about when you file a subpoena for phone records, how would you find out what there phone carrier is to serve subpoena

Kirk Adams : Hi -
Kirk Adams : If you don't know who the carrier is, you would likely have to issue an interrogatory to the party and ask who the carrier is, and then use that information to issue your subpoena duces tecum to the phone carrier.
Customer:

got you and if they lie thats against them becuase they have to answer truthfully

Kirk Adams : That's right.
Kirk Adams : IF they intentionally lie to you and the court, that is serious business.....
Kirk Adams : It would be fraud on the court at the least
Customer:

can you request it in productions

Kirk Adams : You can request phone records, BUT if the party is not in possession of the documents, it may not result in the production of anything.....and you'd have to issue a subpoena.
Customer:

i have a law book by the name constitutional criminal pocedure, my question is about the miranda rights i read on arrest warrant the officer is to inform you about the warrant and read you your rights, if an officer had a warrant but never informed the person they were under arrest and took them in a room by themselves and questioned them incommunicado about a ticket do they remember it never saying theres a warrant or there under arrest, after the questions the person ask am i under arrest would that be a violation of the maranda rights regardless if no information was obtained?

Customer:

oh yeah then the officer told them yeah you under arrest

Kirk Adams : Miranda rights are not required until the person is under arrest. If the person was questioned without his rights being read, nothing asked or answered can be used against the person in court.
Customer:

miranda rights are not a 14 amendment right of the fourth and fifth regardless, it is only there for incriminating evidence, but upon arresting someone for a warrant wouldn't they have to inform then you have a warrant for your arrest for a ticket or failed court appearance etc in the beginning not after they have interrogated the person isn't that backwards

Kirk Adams : Sure, there would have to be some type of communication from the officer.
Customer:

would that be a violation of the maranda rights in a sense, because if you do not know your under arrest you might not think to say i need a lawyer or i have the right to remain silent

Kirk Adams : Practically speaking, I don't think it would matter.
Kirk Adams : Because IF you're not told your Miranda Rights, then no communication between the suspect and officer would be admissible.
Kirk Adams : MS Miranda warning is done to inform the suspect that he's under arrest and that anything said can be used against him. If the person isn't advised of these rights, then anything said should be inadmissible.
Customer:

but you would think that he asking you the questions to get you to admit before he informs you your under arrest he knows that your under arrest cause he has the warrant, but i see what your saying there nothing to defend against cause he cant use the statement unless he lies and say he read you your rights

Kirk Adams : Right
Roger, Attorney
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Experience: BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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