|
DELEGATE BENNETT: I second.
THE CHAIRMAN: The Chair recog-
nizes Delegate Bothe.
Will you first point out the difference
between this amendment and Amendment
No. 7?
DELEGATE BOTHE: The distinction
between this amendment and Amendment
J, which was just turned down by the Com-
mittee of the Whole, is simply this:
It eliminates the reference to "agencies
of the State," and I perhaps should have
said sooner, that this language is pre-
cisely that 'which is suggested by the Model
State Constitution of the National Mu-
nicipal League. It states the exclusionary
rule which I attempted to explain very
briefly a moment ago, and suggests that it
be imbedded in the constitution. And since
the language states "shall not be admissi-
ble in any court or against any person," it
would include not only criminal but civil
proceedings, but narrows the parameter
of the notion somewhat.
I know that the body here tonight does
not want to reargue what was just said,
and I will not do so, but I feel that this
is a subject which should be considered
very closely, contrary to what Judge Hen-
derson said in his final remarks. This is
not just a rule of evidence. It is a rule or
a principle which effectuates the right of
privacy. In the 200 years since the Fourth
Amendment has existed, there has been
no other means devised 'by judges or people
to effectuate the Fourth Amendment other
than the exclusionary rule, or other than
the rules that say that at least the courts
will not entertain in evidence matters
which are seized in violation of the Fourth
Amendment.
Now, since the case of Mapp v. Ohio,
which, as Judge Henderson said, was a
five-four decision, I dare say this is going
to remain the laJw of the land for time
immemorial anyway. It has been adopted
in much lesser margin cases many times
since. The exclusionary rule has become a
part of the constitutional rights of the
people.
You and I have a constitutional right
not to have evidence introduced against us,
not to have the courts used to perpetuate
unlawful searches and seizures. This is not
a novel concept as some may have given
you the impression it is, and if I am a
female voice rising here, I might say that
in civil proceedings it has been used most
frequently, or discussed most frequently in
divorce cases.
|
As all of us have read about it, the
various practices of private detectives,
which are becoming increasingly sophisti-
cated, invade the most intimate parts of
our lives.
This evidence is not admissible evidence
in an adultery charge or criminal charge.
You may not introduce the evidence of a
detective who was lying under the bed.
However, your wife or husband can use
that evidence in a divorce proceeding. This
is ludicrous, unfair, and wrong.
And in a modern society where the rights
of innocent people, or law abiding, or non-
criminal people are certainly more im-
portant than the rights of the criminal
accused, the least that can be done is to
state affirmatively in the constitution that
where private rights are invaded, the
courts cannot be used to take advantage
of this unfairness.
This amendment is somewhat more re-
strictive than the one that you just voted
on. It applies only to courts, and that is it.
THE CHAIRMAN: Are there any other
questions of the sponsor?
Delegate Byrnes.
DELEGATE BYRNES: Delegate Bothe,
I have the same problem with this as I did
with the other, and I do not think I under-
stood you clearly when I asked you about
the application of this to the Wong Sun
trial.
But let me state it quickly and precisely
by saying, would I be stating your inten-
tion if I were to mentally add to line 6
the following clause: "whose rights have
been violated"?
Is that the person we are talking about?
DELEGATE BOTHE: No, it is not
Delegate Byrnes, and this is a point which
I did not raise before. The exclusionary
rule, as I have said, has been made ap-
plicable to the states through the decision
of Mapp v. OHio. However, there is a line
of decisions which are completely incon-
gruous, holding that only that person
whose rights were violated may raise the
objection. To give a concrete example, if
you are visiting in a friend's house and
the police illegally raid that house, and
find illegal evidence in the house, which
incriminates you, you cannot raise the
question of illegal search and seizure be-
cause it was not your home that was vio-
lated. This provision would also abrogate
that rule of evidence.
THE CHAIRMAN: Are there any other
questions?
|
