Orin Kerr at Volokh reports on a Niagara County Court ruling against a motion for suppression of DNA evidence, forcibly obtained when police "tased" a suspect's to obtain his "compliance" with a warrant requiring that his DNA be collected for testing.
From the ruling:
The Defendant argues that the use of the Taser is per se unreasonable because of the excessive amount of pain it causes and the danger of serious physical harm it creates. However, while counsel has mentioned numerous times the device inflicts 50,000 volts, the Court must admit it does not have the scientific knowledge necessary to interpret that fact. It sounds like a high number but what is its relevance to the force imposed and the pain inflicted. There was absolutely no evidence presented to the Court that this is a dangerous amount of voltage and the defendant has presented no evidence of the actual effect or dangers of this device.
One must wonder how authorities ever obtained any compliance at all before these increasingly ubiquitous defensive devices were invented?
(And yes Orin, it's torture, even on the lowest setting - it is a high voltage fist to the face - or in this case, shoulder).
As they say in the movies, "we have ways to make you talk..."
- Garry J. Wise, Toronto
Visit our Toronto Law Firm website: www.wiselaw.net
EMPLOYMENT LAW • CIVIL LITIGATION • WILLS AND ESTATES • FAMILY LAW & DIVORCE
ORIGINALLY POSTED AT WISE LAW BLOG • SUBSCRIBE TO WISE LAW BLOG
2 comments:
"the Court must admit it does not have the scientific knowledge necessary to interpret that fact."
GW - you are the lawyer - does ignorance (admitted) of the facts often play a part in the decision of judges?
croghan27
Well, croghan27:
I thought it was a rather astonishing statement by the Court, myself.
While the judge's remarks were focussed on the lack of specific evidence before him - and generally, the judge is required to decide matters based only on the evidence adduced - there is also the concept of judicial notice to be considered.
At a certain point, when something is patently clear as a matter of common knowledge, a Court does not to need evidence to prove "the obvious." The Court can take judicial notice of that fact.
Tasers are pain-causing weapons. That is their raison d'etre.
They are painful enough to have caused immediate compliance, in this case. That is exactly why the taser was, in fact, used in this case.
Thus, I am not sure how much more evidence ought to have been necessary on the point.
Garry J. Wise
Post a Comment