Suppression Of Evidence Also Suppresses The Truth

Posted: February 17, 1994

AUSTIN, Texas — Those of you who followed Sen. Kay Bailey Hutchison's trial know that as a result of the judge's non-ruling on a pre-trial motion for suppression of evidence, as they say in legal circles, there went the ballgame.

At that point, the odds shifted so dramatically in Hutchison's favor that the prosecution could not try the case. This is one of those arcane legal points that drives civilians batty: If the judge had ruled yes, or the judge had ruled no, certain legal consequences would then have followed. But the judge ruled that he wouldn't rule - whereupon whole other consequences followed. The no-ruling ruling meant the prosecution could not appeal the judge's non-ruling because it was made before the jury was impaneled. Judge John Onion postponed his decision on the admissibility of evidence obtained under subpoena during the June 10 raid on Hutchison's office at the state Treasury. Under Texas law, prosecutors can appeal suppression orders if they are granted before trial begins.

Without the evidence - boxes of documents and copies of thousands of records from the Treasury Department's computers - the state's case against Hutchison was effectively gutted. The matter turned on the fine point of whether the evidence could have been legally seized without a search warrant, instead of with a grand jury subpoena, as it was.

But as the judge pointed out in his non-ruling, if the state had appealed suppression of the evidence, it would have thrown a large spanner into the works, causing yet another huge delay in the process, which wouldn't have served any of us well.

What we have here is a small skirmish in a much larger war over the rules of evidence.

A more helpful look at the larger issue was provided by U.S. Senior District Judge John L. Kane Jr. of Colorado in a 1990 series of lectures on ethics and advocacy given at the University of Denver College of Law. I suppose Kane would be called a liberal judge - he is certainly a man of great heart - but his conclusions will surprise those who stereotype easily.

After considering the legal definition of "relevant," Kane said, "To exclude relevant facts in the search for truth is a slur of gigantic, cynical proportions on the very foundation of a democratic society . . . the first and most glaring rule which should be eliminated is the exclusion of illegally obtained evidence. Clearly, the rule is the enemy of truth and the truth- seeking process. Its only justification worthy of note is that the society places a higher value on the protection of all citizens from the abuses of excessive police authority than it does on the truth of what the police discover or obtain in their illegal peregrinations. The presupposition is that if evidence is excluded . . . law enforcement officials will not engage in such conduct."

This sterile argument pitting truth against police excess has been going on for years. The beauty of Kane's argument is not that he chooses one over the other but that he suggests a mercifully sensible third course.

"Given the proven ability of the federal government to license airplane pilots or regulate interstate truckers or certify able-bodied seamen, there is no reason why a simple certification process for law enforcement officers could not be established and the rule excluding illegally obtained evidence abolished . . . .

"The fear that such a role cannot be entrusted to the federal government

because it would intrude unnecessarily into state action is groundless. State and local governments, including law enforcement agencies, employ pilots who must be licensed. The federal government issues the license to the pilot; it does not tell the state or local government which pilot must be hired."

Kane went on to enumerate other rules of evidence beyond the exclusionary rule he believes should be reconsidered, but he emphasized his initial point: The rules enforce the belief that truth is not the desired end of the legal process and that jurors are lacking the ability to deal with the truth.

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