Exclusionary Rule in The American Criminal Justice System

The grand controversy behind the “fruits of the forbidden tree” doctrine is whether or not legally damning evidence - obtained illegally should be admissible in the court of law. The idea - also known as the evidence exclusionary law - centres around the belief that if the defendant is convicted using “unethically/illegally” sourced evidence, unbeknownst to the judge, the conviction should be overturned when it's origin comes to light. This issue has recently resurfaced after Informer 3838 - the unnamed lawyer of numerous gangland criminals, including Tony “Fat Tony” Mokbel, fed personal, inculpatory information to the Victorian Police. This was in clear violation of the legally binding attorney-client privilege contract - making the evidence provided, that ultimately convicted her clients, illegally obtained and in clear breach of the exclusionary law.

Essentially, the exclusionary law prevents the admission of evidence acquired through the violation of the perpetrator's constitutional rights. In America, it falls under the fourth amendment - found within the illegal search & seizure section. The rule was introduced in America in 1914, during the case of Weeks vs. United States. The rule was only applied in Australia on the 12th of February, 2014 in the case of Smith vs The State of Western Australia - where a note was discovered detailing the coercion of a jury member to agree with the others and rule against the defendant. Although this does not directly relate to the fruits of the poisonous tree doctrine, it comes under the exclusionary rule’s guidelines of jury tampering. Evidence has never been excluded from the Australian legal system - no matter how tainted.

Throughout the 104 years of the exclusionary law being applied to criminal convictions in the US, not a single innocent person has been affected. In order for the exclusionary rule to be enacted, there must tangible evidence against the defendant. This means, unless evidence has been manufactured, those who did not play a role in the crime are left utterly unaffected. On the flip side, this means the law targets true criminals only. If a policeman was to knock down a door after hearing/seeing distress on private property and captured a murder/robbery/assault on their body cam, this evidence becomes futile - as the police did not have a warrant. The likelihood is, the perpetrator in this scenario would be charged successfully - but the primary, damning evidence that is the footage from the body cam would be withheld. Is prioritising a criminal's constitutional rights over the pursuit of justice truly what the legal system stands for? Many argue that this is exactly what the legal system aims for - also assisting in the equalization of the balance between the government and its citizens. While this may be factually correct, the exclusion of certain evidence before trial, paints the perpetrator in a guiltless light, achieving the basic right of deserving a fair, unbiased trial and maintaining the belief that one is innocent until proven guilty.

The first instance of the exclusionary rule being applied to evidence occurred in 1914 at the Supreme Court of the United States in the case of Weeks vs The United States. Since then 19 cases have been presented at the Supreme Court that has resulted in the application of the exclusionary rule. However, the rule has been used hundreds of times in smaller, county courts. The most recent being in the Gilton vs the United States case - in which Antonio Gilton murdered his teenage sister’s pimp. The Ninth Circuit - more commonly referred to as the appeals court has allowed the federal prosecutors placed on the case to resurface and use cell phone location history against Gilton. This is an example of a scenario in which evidence received illegally has been made legal as it is the only piece of evidence placing Gilton at the scene of the murder. The three qualities of a functioning legal system are access - meaning the ability to receive & utilise state-provided lawyers & legal aid, equality - meaning everyone is treated the same - regardless of their race, age, gender or financial status and finally fairness - the element that most accurately pertains to this example. If the American Judiciary system is willing to include evidence that suits their interests, why should they be able to pick and choose what they include in a hearing? Once one of the three elements are compromised, the rest fall - creating an unjust society - something America has achieved on a magnificent scale. This inclusion of the mobile phone information is yet another display of authoritative superiority as it infringes upon one of the most significant concepts of the fourth amendment - the exclusionary rule. Having another unnecessary, flimsy rule only grants the country's executive branch more power - further upsetting the people vs government conflict & hindering the political stability of the three branches of the government - Judiciary, Executive & Legislative.

Now, the most interesting part of this speech - Witness X, Lawyer X, EF or Informer 3838’s story. Now, while we know she is a female, informer 3838’s identity has not been revealed for obvious security reasons, however, many of my family friends in the law sector can confirm that the entire legal community knows who she is - and the gangland criminals almost certainly know the identity of their own lawyer. For today’s purposes, I will be referring to her as I38. Her most infamous client was perhaps Tony Mokbel - responsible for attempting the largest ecstasy import ever. Fortunately, the drugs were discovered hidden within tomato cans in 2007 - weighing a total of 4.4 tons. In 2012, Mokbel was sentenced by the High Court of Australia to 30 years - with a minimum of 22 years incarcerated. Because all lawyers have an obligation to protect their clients best interests, providing incriminatory evidence was gross misconduct. Because her clients confided in her, I38 knew of many upcoming crimes - so began feeding information to Vic Police so she wouldn't be seen as an accessory to the crimes. Her informing track record began in 2003, only being registered as an official Vic Police informant in 2005. Because of her right to anonymity, the judges using her information to prosecute were unaware she was a lawyer. Between 2005 and 2009, her information led to 380 arrests. She also assisted by introducing undercover police as trusted friends/family to her clients. In 2010, I38 received a 2.88 million dollar payout for her role in the convictions. Because of her compromising position as both lawyer and informant, her clients are liable to apply for a judicial review on the grounds that they have been unfairly convicted. Although these criminals are clearly guilty - with myriad implicative documents, images and audio clips, there is still a large possibility that these hardened, properly gangster criminals will be released onto the streets of Victoria by 2020 - all 380.

It’s quite interesting that the Australian government would take a page out of America’s book - especially after the rejection of the Fruits of the Poisonous Tree doctrine in 2011. However, because this is such a large scale issue, a royal commission will be set up - meaning there will be a detailed review of the entire conviction processes - including an investigation into the source of evidence for each, 380 cases. Alone, the royal commission will cost the Australian Government/taxpayers tens of millions to set-up & run. The total cost to analyse every case will be around the 100 million dollar mark. While personally, I do not believe in the release of these criminals, I believe that the lawyer’s identity should remain hidden - but not altered - and should be thrown in jail for a couple of decades. While a lot of the primary evidence was sourced illegally, what benefit is it to waste taxpayers money on an investigation into whether or not their convictions be quashed on the basis of a violation of these criminals “rights” to a fair trial. The police, jury, judges, lawyers and every other member of the legal system know damn well that these criminals are guilty - and to place them back on the streets to continue their massive drug imports would be a huge miscarriage of justice - and would absolutely contravene everything the judiciary system is built upon.

I’d like to leave you with this one question. Do the rights of a guilty criminal outweigh the right to a cohesive society? In this speech, I've outlined three reasons why - when the exclusive law exists and is used - a functional society is out of the question. Firstly, it only targets the guilty - representing common interest & punishing those deserving of being punished. Secondly, it allocates too much power to the government - and assists in the divergence of the people and their government. And finally, it is a huge financial drain on the tax-payers & government - when the money could be spent elsewhere. Additionally, the exclusionary rule/fruits of the poisonous tree doctrine place criminals back onto the streets with innocents. All in all, I strongly believe in the abolition of this warped, counterproductive rule - and am heavily against its potential introduction into Australia’s well developed, just courts.