Thread: Don't rob a bank in Spain

did the lawyers handcuff the police, or is it the Constitution?

In fact BOTH are wrong.

It was the judges, in the courtrooms, with the gavel !!

What do I win??

Evidence?

Consider that the Miranda law was written over 150 years after the constitution.
It is what is considered a "prophylactic rule" , that is, it is meant to protect a constitutional right.
Some conservative judges would argue that although the law should protect a persons rights, the law has no obligation to inform them of rights of which they are not aware. Others would go even farther and say that the courts have no jurisdiction to create these kinds of laws.

Other examples of these sort of rules are the "exclusionary rule" aka '' fruit of the poisoned tree".
This came about in 1914 (I did look this one up). Older but not anywhere near the time of the writing of the constitution.

I stole this from wikipedia just because it turned up in my search.

Even in a standard criminal case, the Exclusionary Rule does not simply bar the introduction of all evidence obtained from all violations of the Fourth, Fifth, or Sixth Amendments. In Hudson v. Michigan, 547 U.S. ___, 126 S.Ct. 2159 (June 15, 2006), Justice Scalia wrote for the U.S. Supreme Court:
Suppression of evidence, however, has always been our last resort, not our first impulse. The exclusionary rule generates "substantial social costs," United States v. Leon, 468 U.S. 897, 907 (1984), which sometimes include setting the guilty free and the dangerous at large. We have therefore been "cautious against expanding" it, Colorado v. Connelly, 479 U.S. 157, 166 (1986), and "have repeatedly emphasized that the rule's 'costly toll' upon truth-seeking and law enforcement objectives presents a high obstacle for those urging [its] application," Pennsylvania Bd. of Probation and Parole v. Scott, 524 U.S. 357, 364-365 (1998) (citation omitted). We have rejected "indiscriminate application" of the rule, Leon, supra, at 908, and have held it to be applicable only "where its remedial objectives are thought most efficaciously served," United States v. Calandra, 414 U.S. 338, 348 (1974) -- that is, "where its deterrence benefits outweigh its 'substantial social costs,'" Scott, supra, at 363, (quoting Leon, supra, at 907).

As you have read this rule only sometimes applies to some things, sometimes.

Since none of the precedent cited is before 1900 then I suppose my final answer will have to be JUDGES.

JUDGES... that's my final answer.

Do you disagree with the reading of the Miranda warning, and the exclusion of evidence which was gathered by law enforcement through means which violated your 4th, 5th and/or 6th Amendment rights?

Which means it's ultimately the public? Don't you guys vote your judges in?

James.

it depends upon the jurisdiction. some states/municipalities vote for their judges. Others, such as the jurisdiction in which I reside, the Judges are appointed, and then retained by popular vote. I disagree with voting in judges, because then they are bound by teh popular vote (in order to obtain/retain their job), and they may make decisions which are contrary to the law, but popular with the people just to keep their position.

I know that someone is going to say the Judges need to bow to the wishes of the people, but I disagree. It was popular in Germany in the 1930's to degrade Jews, take their property without compensation, and, well for the lack of another word, kill them. Would this be constitutional in the US? No. But, if you have Judges that have to bow to the will of the people, they could/would let this happen, and not rule contrary to the popular opinion.

Now, lets hear the torrent of responses