Truth in adjudication

By Richard A. Nixon

One hears much about truth in lending, truth in advertising, etc. but remarkably little about truth in adjudication. Consider the following:

In the field of criminal law, much is heard in numerous “police shows” about Miranda rights and the failure of the police or appropriate authorities to accord one the rights under the 4th Amendment to the Constitution. Failure to do so results in a motion to suppress the confession or other evidence contemplated to be used to convict the defendant in a particular case. This is referred to as the exclusionary rule.


The 4th Amendment states, in pertinent part, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause,…” It makes no mention of the remedy, should this amendment be violated. The Supreme Court declared the exclusive remedy to be the exclusionary rule. Hence, regardless of the reliability of the inculpatory evidence, if the “sheriff blunders,” the otherwise relevant evidence cannot be used in trial to convict. So much for the truth and necessarily the little faith the people place in the courts.

It is not well understood however that the exclusionary rule is not constitutionally required but instead is a “judicially created means of deterring illegal searches and seizures.” Penn. Bd. Prob & Parole v. Scott, 524 U.S. 357, 363(1998). And “because the [exclusionary] rule is prudential rather than constitutionally mandated,” courts apply it “only where its deterrence benefits outweigh its substantial social costs.” Id. Further, suppression of the evidence through the rule “has always been our last resort, not our first impulse.” Hudson v. Michigan, 547 U.S. 586, 591 (2006).

Perhaps its time for truth in adjudication which would comport with actual justice. If justice be defined as rendering that which is due to both the innocent and guilty then certainly justice demands that the trier of fact be made privy to all the facts and law leading up to and including the actual trial. If the trial judge is able to short-circuit this procedure by failing to apprise the jury of all the facts including the improper behavior of the police, the jury and the people in general are denied the entire truth of the matter.

In this situation, the attorneys would be free to argue the reliability of the evidence and the misconduct of the sheriff and this way the jury would decide the value to place on each. The 1st Amendment itself requires no less.

Richard A. Nixon, Esq. and Author of America-An Illusion of Freedom  (  Find Mr. Nixon on Facebook


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William "Bill" Hicks

Great argument