An American G'zeira
Mar. 26th, 2009 05:39 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
ymarkovHERRING v. UNITED STATES
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 07–513. Argued October 7, 2008—Decided January 14, 2009
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOUTER, J., joined.
Without arguing the merits of this typical 5-4 decision (I mean, look at the line-up!), here's an excerpt I liked:
"The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” but “contains no provision expressly precluding the use of evidence obtained in violation of its commands,” Arizona v. Evans, 514 U. S. 1, 10 (1995). Nonetheless, our decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial. See, e.g., Weeks v. United States, 232 U. S. 383, 398 (1914). We have stated that this judicially created rule is “designed to safeguard Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra, 414 U. S. 338, 348 (1974)."
It's exactly parallel to the Sanhedrin establishing a g'zeira, e.g., adding poultry to the meat/milk prohibition.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT
No. 07–513. Argued October 7, 2008—Decided January 14, 2009
ROBERTS, C. J., delivered the opinion of the Court, in which SCALIA, KENNEDY, THOMAS, and ALITO, JJ., joined. GINSBURG, J., filed a dissenting opinion, in which STEVENS, SOUTER, and BREYER, JJ., joined. BREYER, J., filed a dissenting opinion, in which SOUTER, J., joined.
Without arguing the merits of this typical 5-4 decision (I mean, look at the line-up!), here's an excerpt I liked:
"The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” but “contains no provision expressly precluding the use of evidence obtained in violation of its commands,” Arizona v. Evans, 514 U. S. 1, 10 (1995). Nonetheless, our decisions establish an exclusionary rule that, when applicable, forbids the use of improperly obtained evidence at trial. See, e.g., Weeks v. United States, 232 U. S. 383, 398 (1914). We have stated that this judicially created rule is “designed to safeguard Fourth Amendment rights generally through its deterrent effect.” United States v. Calandra, 414 U. S. 338, 348 (1974)."
It's exactly parallel to the Sanhedrin establishing a g'zeira, e.g., adding poultry to the meat/milk prohibition.
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no subject
Date: 2009-03-26 10:49 pm (UTC)milk/meat prohibition was just find without the poultry gzeira, just like it is just fine now without the similar fish gzeira that has been creeping in for centuries.
however if illegally seized evidence can be used in court, the whole 4th amendment becomes meaningless.
no subject
Date: 2009-03-26 11:15 pm (UTC)no subject
Date: 2009-03-26 11:40 pm (UTC)1) No g'zeira was enacted without a clear and present danger. As R' Yannai stated: "What the Tora forbade is enough!"
2) The 4th amendment wouldn't be meaningless without the exclusionary rule, as police misbehavior could still be punished even while allowing the evidence. It's just better guarded with this rule in place.
no subject
Date: 2009-03-26 11:31 pm (UTC)But on topic- the poultry thing is like marus ayin which is more like "the appearance of impropriety" which comes up with campaign financing a lot.
no subject
Date: 2009-03-26 11:42 pm (UTC)