Why does Penn Law have a goat as its mascot? Well, this isn't just any goat. It's a magical one-horned goat from Chinese legend called the juror. It helped out an ancient Chinese minister of justice. When he couldn't figure out how a case should be decided, he'd ask the goat and it would butt whoever was guilty. Convenient, right? But the framers of the Constitution didn't have any magical goats as far as we know, so they relied on other things to help trials come out right. They relied on the jury, and lawyers, and rights for defendants that helped protect them. And that's what we're talking about in this module. The rights of criminal defendants. The Constitution, for when you run out of magic goats. [MUSIC] Dollree Mapp knew her rights and she was willing to raise them. So when the police came to her door, what did she do? She asserted her Fourth Amendment rights. You might think that after the First Amendment, we're on to the Second, but we're skipping around a bit. So back to Dollree, or Dolly, as she likes to be called. The police are knocking at her door demanding that they search the place. She knew that she was protected against unreasonable searches and seizures. She asked to see the warrant. >> And Ms. Mapp said to them, do you have a search warrant? >> Most of us have learned about search warrants from T.V. or the movies, but a warrant actually comes from the Fourth Amendment. >> A search warrant must be very specific about what is to be searched, where is it going to be searched, and who is going to be searched. And it must be signed by a judge who is neutral, who can read the document and determine that probable cause actually exists for going into this person's house or car or place of business. >> There's one problem with Dolly's demand. You see, the police didn't have a warrant. They'd gotten the tip that a bombing suspect might be hiding in Mapp's house, but they didn't get a warrant. They came in anyway and waved around a piece of paper they claimed was a warrant. Dolly Mapp grabbed it, tried to hold on to it. She tried hiding it inside her shirt. The police took it back. They didn't find any bombing suspect, but they did, pretty much by chance, find a trunk that had belonged to a former tenant. Inside that trunk, they found pornography and the State of Ohio decided to prosecute Mapp for possession of that pornography. Nowadays, by the way, possessing pornography inside your home is protected by The First Amendment, but The Supreme Court hadn't yet decided that. The Fourth Amendment was adopted to prevent precisely that sort of arbitrary invasion. No one doubted that the police had violated Mapp's Fourth Amendment Rights. The question was, what would the remedy be? What the court announced in Mapp is what's known as the exclusionary rule. Evidence that's obtained in violation of the Fourth Amendment cannot be used by the government in a criminal prosecution. But does this make sense? It helped Dolly Mapp, but only because, quite by chance, she had illegal material in her house unrelated to what the police were looking for. And also, not by chance, the authorities decided to prosecute her in what looks like an abuse of power in an attempt to punish her for asserting her rights. So it helped her that they couldn't use the seized material as evidence, yes. But what if the trunk hadn't been there? The exclusionary rule wouldn't have done anything for her then. The exclusionary rule protects guilty people. That doesn't make it exceptional among constitutional rules. We often protect the rights of guilty people. Sometimes, this is because we're not sure of their guilt and we think that some protections are necessary to promote a fair trial or an accurate verdict. In other cases, perhaps more, it's because the guilty are the first line of defense for the innocent. If guilty people, bad people, don't get these rights, then maybe the innocent won't either. Maybe the government will just designate them as bad and say they aren't entitled to any rights. So there are good reasons to protect the rights of guilty people. Some rights anyway, rights that make sure they really are guilty, or rights that protect innocent people as well. But the interesting thing about the exclusionary rule is that it doesn't seem to do either of those things very well. It excludes relevant evidence, so it doesn't contribute to the accuracy of a verdict. And it almost only protects the guilty. It protects the innocent to some extent because the police are less likely to wantonly break into your house if they know they can't use whatever evidence they find. But that's small consolation if they do. So maybe, instead, we should focus more on how to compensate innocent people, maybe by making the police pay them money. There are two things to think about here. If we focused more on compensating innocent people, we'd think about Fourth Amendment rights not as protection we give to the guilty people, that somehow maybe indirectly benefit the innocent. We'd think about them as rights that benefit the innocent directly and people generally might be more enthusiastic about those rights. Judges might be too. We might get broader Fourth Amendment protection. Rights are affected, at least a little bit, by the cases they get raised in. And when the focus of the Fourth Amendment is the exclusionary rule, the only time judges see that right is when a guilty person is trying to have evidence excluded. There's a pressure, surely, to let that relevant evidence in, or at least, the police tend to be the more sympathetic side. And that's perhaps why courts have come up with a number of exceptions to the Fourth Amendment protections. If, on the other hand, the typical Fourth Amendment case featured an innocent homeowner whose rights had been violated for no good reason, the pressure would go in the opposite direction. That might expand our rights, the rights of the innocent. And I want to end by talking a bit more about one of those exceptions. The Fourth Amendment doesn't protect you, the Supreme Court has said, if you give information to a third party and the police then get that information from them. You can see how that exception makes sense, I think. The Fourth Amendment is supposed to protect your privacy. And if you share information with someone else, you can't really expect it to be private. But what's interesting here is how technological change affects that analysis. It used to be, if you didn't want anyone to know where you were going or what you were reading, you could hide that information pretty easily. Just don't tell anyone, wear a baseball cap, pay cash for your books. So you could maintain a fair amount of privacy and still lead a normal life. But the way we live now, it's not so easy. If you carry a cell phone, your phone company knows where you've been. If you read your news on the internet, your service provider knows what you read. If you buy books from Amazon, they know. If you use a store's discount card, they know what you buy. And the government can learn all of those things without any Fourth Amendment protections. So, you can still keep things secret, but it's a lot a harder. You're not leading quite as much of a normal life anymore when you give up your cell phone and your internet usage and your store discounts. So the balance between privacy and government knowledge has changed, not because anything in the constitution changed, but because a rule that the court created is working differently in today's world than it did 20 years ago, which might make you wonder whether it's time to reconsider that rule. Some states have, with respect to cell phone tracking at least. Will the Supreme Court? We'll have to wait and see. [MUSIC]
