Но на днях, в ходе другого разговора, юзер sowa попросил напомнить, что я там для себя нашел насчет ходя появления доктрины.
В принципе этот вопрос достаточно подробно освещен в википедии:
Далее, я вижу два аспекта. Первый - как эта доктрина появилась в решениях верховного суда, как воспринималась современниками и т.д. Второй - идейные корни ее появления и укрепления.
Второй аспект мне, наверно, не по силам. Это часть более общего - можно сказать, гигантского - вопроса о том, как исторически случайные, произвольные и нередко прямо ошибочные традиции приживаются в американской политической жизни, как жизнь приспосабливается к ним, и как эти традиции приобретают в глазах широчайших масс аксиоматический статус правовой истины.
С первым аспектом проще. Он вполне прозрачно раскрывается всего лишь тремя (хотя и обширными) цитатами из решений верховного суда США. Вот они:
Первая цитата - из ключевого, по сегодняшним представлениям, решения WEEKS v. U.S., 232 U.S. 383 (1914)
Видно, что суд изо всех сил старается опровергнуть аргументацию правительства, ссылающуюся на решение 1904 года, где подтверждалось существование правовой традиции признания незаконно добытых доказательств в судах (как в Англии, так и в США). Очевидно, что опровержение этой аргументации играет решающую роль в сомнительной логике Weeks vs. US. Из чтения этой цитаты может сложиться впечатление, будто в обсуждаемом решении 1904 года никаких общих заключений не было, что это было техническое решение узко-специального применения, не могущее служить убедительным аргументом в споре о конституционности.
The court before which the application was made in this case recognized the illegal character of the seizure, and ordered the return of property not in its judgment competent to be offered at the trial, but refused the application of the accused to turn over the letters, which were afterwards put in evidence on behalf of the government. While there is no opinion in the case, the court in this proceeding doubtless relied upon what is now contended by the government to be the correct rule of law under such circumstances, that the letters having come into the control of the court, it would not inquire into the manner in which they were obtained, but, if competent, would keep them and permit their use in evidence. Such proposition, the government asserts, is conclusively established by certain decisions of this court, the first of which is Adams v. New York, supra. In that case the plaintiff in error had been convicted in the supreme court of the state of New York for having in his possession certain gambling paraphernalia used in the game known as policy, in violation of the Penal Code of New York. At the trial certain papers, which had been seized by police officers executing a search warrant for the discovery and seizure of policy slips, and which had been found in addition to the policy slips, were offered in evidence over his objection. The conviction was affirmed by the court of appeals of New York (176 N. Y. 351, 63 L.R.A. 406, 98 Am. St. Rep. 675, 68 N. E. 636), and the case was brought here for alleged violation of the 4th and 5th Amendments to the Constitution of the United States. Pretermitting the question whether these Amendments applied to the action of the states, this court proceeded to examine the alleged violations of the 4th and 5th Amendments, and put its decision upon the ground that the papers found in the execution of the search warrant, which warrant had a legal purpose in the attempt to find gambling paraphernalia, was competent evidence against the accused, and their offer in testimony did not violate his constitutional privilege against unlawful search or seizure, for is was held that such incriminatory documents thus discovered were not the subject of an unreasonable search and seizure, and in effect that the same were incidentally seized in the lawful execution of a warrant, and not in the wrongful invasion of the home of a citizen, and the unwarranted seizure of his papers and property. It was further held, approving in that respect the doctrine laid down in 1 Greenleaf, Ev. 254a, that it was no valid objection to the use of the papers that they had been thus seized, and that the courts in the course of a trial would not make an issue to determine that question, and many state cases were cited supporting that doctrine.
The same point had been ruled in People v. Adams, 176 N. Y. 351, 63 L. R.A. 406, 98 Am. St. Rep. 675, 68 N. E. 636, from which decision the case was brought to this court, where it was held that if the papers seized in addition to the policy slips were competent evidence in the case, as the court held they were, they were admissible in evidence at the trial, the court saying (p. 358): 'The underlying principle obviously is that the court, when engaged in trying a criminal cause, will not take notice of the manner in which witnesses have possessed themselves of papers, or other articles of personal property, which are material and properly offered in evidence.' This doctrine thus laid down by the New York court of appeals and approved by this court, that a court will not, in trying a criminal cause, permit a collateral issue to be raised as to the source of competent testimony, has the sanction of so many state cases that it would be impracticable to cite or refer to them in detail. Many of them are collected in the note to State v. Turner, 136 Am. St. Rep. 129, 135 et seq. After citing numerous cases the editor says: 'The underlying principle of all these decisions obviously is, that the court, when engaged in the trial of a criminal action, will not take notice of the manner in which a witness has possessed himself of papers or other chattels, subjects of evidence, which are material and properly offered in evidence. People v. Adams, supra. Such an investigation is not involved necessarily in the litigation in chief, and to pursue it would be to halt in the orderly progress of a cause, and consider incidentally a question which has happened to cross the path of such litigation, and which is wholly independent thereof.'
It is therefore evident that the Adams Case affords no authority for the action of the court in this case, when applied to in due season for the return of papers seized in violation of the Constitutional Amendment. The decision in that case rests upon incidental seizure made in the execution of a legal warrant, and in the application of the doctrine that a collateral issue will not be raised to ascertain the source from which testimony, competent in a criminal case, comes.
Ну что же, посмотрим, что на самом деле говорилось в этом деле - ADAMS v. PEOPLE OF THE STATE OF NEW YORK, 192 U.S. 585 (1904)
То есть на самом деле все было не так. Верховный суд детально (и, на мой взгляд, убедительно) объяснил, что четвертая поправка не противоречит допустимости доказательств, полученных с нарушением закона. То есть аргументацию по делу Weeks следует признать ошибочной, ни на чем логически не основанной (я бы, наверно, даже сказал - лживой).
No objection was taken at the trial to the introduction of the testimony of the officers holding the search warrant as to the seizure of the policy slips; the objection raised was to receiving in evidence certain private papers. These papers became important as tending to show the custody by the plaintiff in error, with knowledge, of the policy slips. The question was not made in the attempt to resist an unlawful seizure of the private papers of the plaintiff in error, but arose upon objection to the introduction of testimony clearly competent as tending to establish the guilt of the accused of the offense charged. In such cases the weight of authority as well as reason limits the inquiry to the competency of the proffered testimony, and the courts do not stop to inquire as to the means by which the evidence was obtained. The rule is thus laid down in Greenleaf (vol. 1, 254a): 'It may be mentioned in this place that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue to determine that question.'
The author is supported by numerous cases. Of them, perhaps, the leading one is Com. v. Dana, 2 Met. 329, in which the opinion was given by Mr. Justice Wilde, in the course of which he said:
'There is another conclusive answer to all these objections. Admitting that the lottery tickets and materials were illegally seized, still this is no legal objection to the admission of them in evidence. If the search warrant were illegal, or if the officer serving the warrant exceeded his authority, the party on whose complaint the warrant issued, or the officer, would be responsible for the wrong done; but this is no good reason for excluding the papers seized as evidence if they were pertinent to the issue, as they unquestionably were. When papers are offered in evidence the court can take no notice how they were obtained, whether lawfully or unlawfully; nor would they form a collateral issue to determine that question. This point was decided in the cases of Legatt v. Tollervey, 14 East, 302, and Jordan v. Lewis, 14 East, 306, note, and we are entirely satisfied that the principle on which these cases were decided is sound and well established.'
This principle has been repeatedly affirmed in subsequent cases by the supreme judicial court of Massachusetts; among others, Com. v. Tibbetts, 157 Mass. 519, 32 N. E. 910. In that case a police officer, armed with a search warrant calling for a search for intoxicating liquors upon the premises of the defendant's husband, took two letters which he found at the time. Of the competency of this testimony the court said:
'But two points have been argued. The first is that the criminatory articles and letters found by the officer in the defendant's possession were not admissible in evidence because [192 U.S. 585, 596] the officer had no warrant to search for them, and his only authority was under a warrant to search her husband's premises for intoxicating liquors. The defendant contends that under such circumstances the finding of criminatory articles or papers can only be proved when, by express provision of statute, the possession of them is itself made criminal. This ground of distinction is untenable. Evidence which is pertinent to the issue is admissible, although it may have been procured in an irregular, or even in an illegal, manner. A trespasser may testify to pertinent facts observed by him, or may put in evidence pertinent articles or papers found by him while trespassing. For the trespass he may be held responsible civilly, and perhaps criminally, but his testimony is not thereby rendered incompetent.' Com. v. Acton, 165 Mass. 11, 42 N. E. 329; Com. v. Smith, 166 Mass. 370, 44 N. E. 503.
To the same effect are Chastang v. State, 83 Ala. 29, 3 So. 304; State v. Flynn, 36 N. H. 64. In the latter case it was held:
'Evidence obtained by means of a search warrant is not inadmissible, either upon the ground that it is in the nature of admissions made under duress or that it is evidence which the defendant has been compelled to trade and commerce; that the evidence has been unfairly or illegally obtained, even if it appears that the search warrant was illegally issued.'
State v. Edwards, 51 W. Va. 220, 59 L. R. A. 465, 41 S. E. 429; Shields v. State, 104 Ala. 35, 16 So. 85; Bacon v. United States, 38 C. C. A. 31, 97 Fed. 35; State v. Atkinson, 40 S. C. 363, 18 S. E. 1021; Williams v. State, 100 Ga. 511, 39 L. R. A. 269, 28 S. E. 624; State v. Pomeroy, 130 Mo. 489, 32 S. W. 1002; Gindrat v. People, 138 Ill. 103, 27 N. E. 1085; Trask v. People, 151 Ill. 523, 38 N. E. 248; Starchman v. State, 62 Ark. 538, 36 S. W. 940.
In this court it has been held that if a person is brought within the jurisdiction of one state from another, or from a foreign country, by the unlawful use of force, which would render the officer liable to a civil action or in a criminal proceeding because of the forcible abduction, such fact would not prevent the trial of the person thus abducted in the state wherein he had committed an offense. Ker v. Illinois, 119 U.S. 436 , 30 L. ed. 421, 7 Sup. Ct. Rep. 225; Mahon v. Justice, 127 U.S. 700 , 32 L. ed. 283, 8 Sup. Ct. Rep. 1204.
The origin of these amendments is elaborately considered in Mr. Justice Bradley's opinion in the Boyd Case, 116 U.S. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524. The security intended to be guaranteed by the 4th Amendment against wrongful search and seizures is designed to prevent violations of private security in person and property and unlawful invasion of the sanctity of the home of the citizen by officers of the law, acting under legislative or judicial sanction, and to give remedy against such usurpations when attempted. But the English, and nearly all of the American, cases, have declined to extend this doctrine to the extent of excluding testimony which has been obtained by such means, if it is otherwise competent. In Boyd's Case the law held unconstitutional virtually compelled the defendant to furnish testimony against himself in a suit to forfeit his estate, and ran counter to both the 4th and 5th Amendments. The right to issue a search warrant to discover stolen property or the means of committing crimes is too long established to require discussion. The right of seizure of lottery tickets and gambling devices, such as policy slips, under such warrants, requires no argument to sustain it at this day. But the contention is that, if, in the search for the instruments of crime, other papers are taken, the same may not be given in evidence. As an illustration,-if a search warrant is issued for stolen property, and burglars' tools be discovered and seized, they are to be excluded from testimony by force of these amendments. We think they were never intended to have that effect, but are rather designed to protect against compulsory testimony from a defendant against himself in a criminal trial, and to punish wrongful invasion of the home of the citizen or the unwarranted seizure of his papers and property, and to render invalid legislation or judicial procedure having such effect.
Более того, нетрудно видеть, что более чем холодное отношение к решению по делу Weeks присутствовало в том же верховном суде и после того, как оно было принято. Например, вот как этот вопрос рассматривается в деле OLMSTEAD v. U.S., 277 U.S. 438 (1928)
Здесь снова излагается вполне разумная точка зрения о том, что если общество хочет исключить незаконно полученные доказательства из судебного рассмотрения, то это вопрос законодателя, конгресса, а не конституционный.
The striking outcome of the Weeks Case and those which followed it was the sweeping declaration that the Fourth Amendment, although not referring to or limiting the use of evidence in court, really forbade its introduction, if obtained by government officers through a violation of the amendment. Theretofore many had supposed that under the ordinary common-law rules, if the tendered evidence was pertinent, the method of obtaining it was unimportant. This was held by the Supreme Judicial Court of Massachusetts in Commonwealth v. Dana, 2 Metc. 329, 337. There it was ruled that the only remedy open to a defendant whose rights under a state constitutional equivalent of the Fourth Amendment had been invaded was by suit and judgment for damages, as Lord Camden held in Entick v. Carrington, 19 Howell, State Trials, 1029. Mr. Justice Bradley made effective use of this case in Boyd v. United States. But in the Weeks Case, and those which followed, this court decided with great emphasis and established as the law for the federal courts that the protection of the Fourth Amendment would be much impaired, unless it was held that not only was the official violator of the rights under the amendment subject to action at the suit of the injured defendant, but also that the evidence thereby obtained could not be received.
What has been said disposes of the only question that comes within the terms of our order granting certiorari in these cases. But some of our number, departing from that order, have concluded that there is merit in the twofold objection, overruled in both courts below, that evidence obtained through intercepting of telephone messages by a government agents was inadmissible, because the mode of obtaining it was unethical and a misdemeanor under the law of Washington. To avoid any misapprehension of our views of that objection we shall deal with it in both of its phases.
While a territory, the English common law prevailed in Washington, and thus continued after her admission in 1889. The rules of evidence in criminal cases in courts of the United States sitting there consequently are those of the common law. United States v. Reid, 12 How. 361, [277 U.S. 438, 467] 363, 366; Logan v. United States, 144 U.S. 263, 301 , 12 S. Ct. 617; Rosen v. United States, 245 U.S. 467 , 38 S. Ct. 148; Withaup v. United States (C. C. A.) 127 F. 530, 534; Robinson v. United States (C. C. A.) 292 F. 683, 685.
The common-law rule is that the admissibility of evidence is not affected by the illegality of the means by which it was obtained. Professor Greenleaf, in his work on Evidence (volume 1 (12th Ed., by Redfield) 254(a)), says:
'It may be mentioned in this place, that though papers and other subjects of evidence may have been illegally taken from the possession of the party against whom they are offered, or otherwise unlawfully obtained, this is no valid objection to their admissibility, if they are pertinent to the issue. The court will not take notice how they were obtained, whether lawfully or unlawfully, nor will it form an issue, to determine that question.'
Mr. Jones, in his work on the same subject, refers to Mr. Greenleaf's statement, and says:
'Where there is no violation of a constitutional guaranty, the verity of the above statement is absolute.' Section 2075, note 3, vol. 5.
The rule is supported by many English and American cases cited by Jones in section 2075, note 3, and section 2076, note 6, vol. 5; and by Wigmore, vol. 4, 2183. It is recognized by this court in Adams v. New York, 192 U.S. 585 , 24 S. Ct. 372. The Weeks Case announced an exception to the commonlaw rule by excluding all evidence in the procuring of which government officials took part by methods forbidden by the Fourth and Fifth Amendments. Many state courts do not follow the Weeks Case. People v. Defore, 242 N. Y. 13, 150 N. E. 585. But those who do treat it as an exception to the general common-law rule and required by constitutional limitations. Hughes v. State, 145 Tenn. 544, 551, 566, 238 S. W. 588, 20 A. L. R. 639; State v. Wills, 91 W. Va. 659, 677, 114 S. E. 261, 24 A. L. R. 1398; State v. Slamon, 73 Vt. 212, 214, 215, 50 A. 1097, 87 Am. St. Rep. 711; Gindrat v. People, 138 Ill. 103, 111, 27 N. E. 1085; People v. Castree, 311 Ill. 392, 396, 397, 143 N. E. 112, 32 A. L. R. 357; State v. [277 U.S. 438, 468] Gardner, 77 Mont. 8, 21, 249 P. 574, 52 A. L. R. 454; State v. Fahn, 53 N. D. 203, 210, 205 N. W. 67. The common-law rule must apply in the case at bar.
Nor can we, without the sanction of congressional enactment, subscribe to the suggestion that the courts have a discretion to exclude evidence, the admission of which is not unconstitutional, because unethically secured. This would be at variance with the common-law doctrine generally supported by authority. There is no case that sustains, nor any recognized text-book that gives color to, such a view. Our general experience shows that much evidence has always been receivable, although not obtained by conformity to the highest ethics. The history of criminal trials shows numerous cases of prosecutions of oathbound conspiracies for murder, robbery, and other crimes, where officers of the law have disguished themselves and joined the organizations, taken the oaths, and given themselves every appearance of active members engaged in the promotion of crime for the purpose of securing evidence. Evidence secured by such means has always been received.
A standard which would forbid the reception of evidence, if obtained by other than nice ethical conduct by government officials, would make society suffer and give criminals greater immunity than has been known heretofore. In the absence of controlling legislation by Congress, those who realize the difficulties in bringing offenders to justice may well deem it wise that the exclusion of evidence should be confined to cases where rights under the Constitution would be violated by admitting it.
Понятно, что члены верховного суда США постоянно придерживаются своеобразной доктрины неизменности судебной мысли, то есть формулируют свои мысли, отталкиваясь от фикции своего как бы бессмертного постоянства (в текстах решений стандартны формулы типа "как мы решили в тысяча восемьсот таком-то году"). То есть если решения законодательного органа просто по определению должны изменять предыдущие решения того же органа и, соответственно, не нуждаются в этой фикции, судейское законотворчество всегда оказывается в ложном положении меняющего неизменное, заливания противоположного содержания в якобы стабильные формулы. В этом, собственно, и проявляется логическая несостоятельность всей системы судейского законотворчества.
Таким образом, мы видим, что верховный суд США в какой-то момент, в 1914 году, на пустом месте, из ничего, изобрел новую доктрину, не имевшую никакой опоры ни в законодательстве (в том числе конституционном), ни в правовой традиции. Эта доктрина с годами приобрела, как я сказал, аксиоматический характер. В результате огромному большинству людей кажется, что она и не нуждается в рациональном обосновании. Отсюда постоянные ссылки на ее "конституционность" (совершенно беспочвенные, как мы видим). Конечно, даже если бы эта доктрина была прямым текстом записана в конституции, это еще не делало бы ее разумной, правильной и логически непротиворечивой, но в данном случае нет и этого.
Логическая же аргументация в пользу доктрины, повторю, может быть названа разве что беспомощной.