William Pitt, the well known British statesman said in Parliament in 1763: "The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail -- its roof may shake, the wind may blow through it, the storm may enter, the rain may enter -- but the King of England cannot enter. All his force dares not cross the threshold of the ruined tenement."
He was referring to the fundamental right of people to be free from unreasonable searches and seizures. The recent newspaper searches have reopened public discussion of the search warrant system in Taiwan. Jou Ying-Cheng's (周盈成) analysis (Battle rages over power to issue search warrants, Oct. 11, page 3) brought together a number of different viewpoints on the issue and made interesting reading.
We need however to begin at the beginning, so to speak. We need to be clear on the ends we hope to accomplish before a discussion of the means makes any sense. What frequently happens in these sorts of criminal justice policy debates is that there is a kind of random discussion of means; we should do "x", or "y" or "z" without having a clear idea of what ends we hope to achieve. For example in the warrant debate there is talk that, "We should have judges sign warrants" contrasted with, "No, judges are too slow and inexperienced; we should let prosecutors do it," along with variations on those themes as well as other options.
But the first thing that the Taiwanese public and the Taiwanese criminal justice system needs to be clear about is what exact ends, what exact goals we want the warrant system to serve. Criminal justice procedures, like search warrants, are put into place to serve some purpose.
Without being clear as to purpose a discussion of means to achieve that purpose is pointless. And I would add, the more clear one's purpose is, the more obvious will be the correct means. Vague ends or purposes give rise to vague means. And vagueness in criminal justice procedures gives rise to abuse and erosion of civil liberties.
A procedure for search warrants can serve a number of purposes. On a practical level warrants can, somewhat, discourage police and prosecutor misconduct. Warrant requirements can, to a certain extent, encourage police obedience to the law. I qualify both of those sentences because in the end cops can generally do whatever they damn well see fit in most situations. That is true in Taiwan and in California. Police impunity is, sadly, a worldwide problem.
Warrants can also serve to provide an impartial, "third party" review of the reason for the search. In legal parlance, the probable cause. This can be an important check on police-prosecution excesses.
Having an impartial judge review the probable cause before the search prevents the police-prosecution from "boot strapping" their probable cause after the search has actually taken place. "Boot strapping" is where the results of the search are then used after the fact of the search to justify the search. Put most simply it is when the cops say, "Oh, we had a reason to search; see, we found the stuff we were looking for." Backwards proof at its finest.
Warrants can also provide a level of accountability for searches. Most warrant systems require statements, under oath, that establish the probable cause for the search. Most warrant systems also specify the place to be searched, the items subject to the search and oftentimes limit night-time searches.
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