A fact, in the real world, is defined as: something that truly exists or happens : something that has actual existence. In the legal world, a “fact” is defined as: something that the jury could “reasonably” have found. But even that’s not certain. Because judges also “find” facts, based on the evidence that they hear.
But, you say, that seems incredibly subjective. And subjective it is. Because what the judges hear and how they interpret what they hear is also colored by their own opinions of important things like credibility – who to believe and how much to believe. It’s also informed by their personal opinions, experience and beliefs about the world.
I wrote most recently about the importance of making sure that “facts” on the record are as clear and as indisputable as they can be and I’ve written in the past about the fallacy of calling legal facts facts and so it comes as no surprise that this paper, written by a former police officer turned law professor, makes the claim that Supreme Court decisions involving police and police concerns are based on unsupported “facts”.
Seth Stoughton writes that:
[T]he Court discusses the environment in which officers act, describes specific police practices, and explains what motivates officers. Yet the majority of the Court’s factual assertions are made entirely without support or citation, raising concerns about whether the Court is acting based on a complete and accurate perception. When it comes to policing facts, the Court too often gets it wrong.
This is critically important. There are generally two types of “facts” that are used in making legal decisions: facts about the specifics of the case (and we’ve seen how courts aren’t above retconning those to suit their outcome) and then facts about general policy considerations underlying the decision in the case – for example:
With regard to uses of force, the Court believes that officers use violence in an environment that demands “split-second judgments,” justifying significant deference to an officer’s decision of whether to use force and what force to use. However, only a very small percentage of use-of-force incidents resemble the Court’s intuitions, suggesting that the standard used to review police violence may not often fit the circumstances of the incident itself.
In the context of consent searches, the Court has held that officers need not inform individuals of the right to refuse consent, stating that such a requirement would be “thoroughly impractical.” A close review of the circumstances that typically precede a request for consent, though, suggests that it may not be as impractical as the Court believes; indeed, several states and police agencies require officers to issue just such a warning.
The modern exclusionary rule is predicated solely on the Court’s belief that the suppression of evidence, and the corresponding reduction in the possibility of conviction, can meaningfully deter officer malfeasance. But there are no formal mechanisms that would encourage officers to reevaluate the quality of their arrests based on the conviction results, and informal pressures actively discourage officer interest, leading officers to pay less attention to convictions than the Court assumes.
I would strongly urge you to read the whole paper [PDF], because I could quote almost all of it. These mistakes assumptions by the court impact our nation’s criminal justice policy because the Court relies on these to set the borders and boundaries of our individual rights.
As Elizabeth Joh says:
Many Americans feel some familiarity with the realities of law enforcement because of its pervasive presence in fictionalized media and the news, even if those depictions are mistaken. Learning criminal procedure from Law and Order might be inadvisable, but it’s not dangerous. Yet, as Stoughton points out in his thoughtful article, when the Court gets the police wrong, that misunderstanding threatens our basic liberties.
I’d go so far as to say that it has threatened our basic liberties and curtailed them in impermissible ways.
This may be too simplistic a view, but it seems to me that this is caused in large part by our increasing ability to see nuance in the world and to hold opposing and uncomfortable ideas in our head and resolve or even acknowledge them. “Criminals are bad and so we must do whatever we can to put them in jail forever”, is an accepted motto without once giving any hint of acknowledgment that in doing so we make it that much easier for those with power to call us criminals tomorrow and “find” that we are guilty.