Import of the Exclusionary Rule.

¶ … import of the Exclusionary Rule.

The exclusionary rule is often known as the 'fruit of the poisonous tree' doctrine. It prevents the government from benefiting from illegally-gathered evidence by excluding such evidence from the defendant's trial. "It applies to evidence gained from an unreasonable search or seizure in violation of the Fourth Amendment...to improperly elicited self-incriminatory statements gathered in violation of the Fifth Amendment...and to evidence gained in situations where the government violated defendants' Sixth Amendment Right to Counsel....The rule does not apply to civil cases, including deportation hearings" (Exclusionary rule, 2011, Cornell University).

The use of the exclusionary rule is extremely unpopular amongst the public, who are often frustrated when an obviously guilty criminal is set free, simply because the evidence supporting his conviction was obtained improperly by law enforcement personnel. However, without the exclusionary rule, there is no incentive for representatives of the law to enforce suspects' constitutional rights. "When agents of the executive branch (the police) disregard the terms of search warrants, or attempt to bypass the warrant-issuing process altogether, the judicial branch can and should respond by 'checking' such misbehavior. The most opportune time to check such unconstitutional behavior is when prosecutors attempt to introduce illegally-seized evidence in court" (Lynch 1998). Additionally, numerous exceptions to the exclusionary rule exist, such as the 'good faith' exemption (when a police officer believes, erroneously, that a warrant had been issued and conducts a search), and the 'plain view' exception, when an object is visible in plain view.

Q2. Define "reasonable suspicion" and give an example of same.

Reasonable suspicion, as defined by the law is a standard, "more than a hunch but considerably below preponderance of the evidence, which justifies an officer's investigative stop of an individual upon the articulable and particularized belief that criminal activity is afoot" (Probable cause, reasonable suspicion, and reasonableness 2006, Senate Select Committee on Intelligence). In other words, searches conducted with reasonable suspicion do not have to meet the standards of proof of convicting a defendant during a trial. They must be more than arbitrary searches based on gut feelings, as this could easily be open to abuse (and result in the targeting of members of minority groups). As defined by the Fourth Amendment reasonableness is that point at which the government's interest as "advanced by a particular search or seizure outweighs the loss of individual privacy or freedom of movement that attends the government's action," and the doctrine thus strives to balance the rights of the individual with the rights of the government to guard the public's safety (Probable cause, reasonable suspicion, and reasonableness 2006, Senate Select Committee on Intelligence).

One of the challenges of the reasonable suspicion standard is that it is not hard and fast, but rather based upon subjective, professional impressions -- a "fluid" concept, in the words of one justice (Probable cause, reasonable suspicion, and reasonableness, 2006, Senate Select Committee on Intelligence). Reasonable suspicion is most often used to justify less intrusive searches and seizures -- for example, a 'pat down' of a suspect when the officer has a reasonable suspicion that the suspect was armed and dangerous (Reasonable suspicion, 2011, Cornell University).

Q3. What facts should a judge take into consideration when setting the amount of bail in a particular case?

When setting bail, a judge typically considers whether the accused has a past criminal record. Whether the defendant poses a danger to the community is one of the primary considerations the judge will evaluate when setting bail or if the judge decides to grant bail at all (and in what form). The judge also evaluates the defendant's status as a flight risk, including the accused person's financial resources, connections abroad, and ties to the community. "In the event that the individual is deemed to be a high flight risk, the judge will set the bail at a higher amount. This is because when the person does not show up to court, the court will get the full amount of the bail money. As such, the higher bail amount is incentive for the defendant to actually show up to court" (How can I find out what the bail amounts are for the county of San Bernardino, 2011, San Bernardino Bail Bond Amounts). The nature of the crime the defendant is accused of will also determine the amount of bail. A relatively minor offense will garner a lower sum of money than a serious crime like murder.

Q4. State and explain the two (2) types of immunity that might be offered to an individual when that individual is compelled to testify before a Grand Jury.

Two types of immunity that exist are use and transactional immunity. Immunity is conferred to protect the witness from being indicted and thus protected from testifying based upon the witnesses' Fifth Amendment right to not incriminate him or herself. "The states grant either form of this immunity, while the federal government grants only use immunity. A witness with use immunity may still be prosecuted, but only based on evidence not gathered from the protected testimony" (Use immunity, 2011, Legal Dictionary). Use immunity prohibits the witness's testimony from being used against that witness in any kind of criminal prosecution. In contrast, transactional immunity merely prohibits the witnesses' compelled testimony from being used against him or her for that particular crime, not for all offenses. "The difference between transactional and use immunity is that transactional immunity protects the witness from prosecution for the offense or offenses involved, whereas use immunity only protects the witness against the government's use of his or her immunized testimony in a prosecution of the witness -- except in a subsequent prosecution for perjury or giving a false statement" (Transactional immunity distinguished, 2011, Criminal Resource Manual).