THE law calls it ``motion to suppress,'' meaning a defendant's request that the court exclude evidence that the government has acquired (the defendant says) by violating his constitutional rights. This suppressing, whether of the defendant's confession, or a pistol found in his pocket, or a kilogram of cocaine discovered in his breadbox, means that solid evidence of a defendant's guilt will never get to the jury. If the tainted goodies constitute the meat of the prosecution's case, suppressing the evidence kills the indictment. In other words, if the judge allows the motion, often the defendant goes free.
To the police and the public this kind of defense victory looks like the triumph of evil over good; or, worse, of ``technicalities'' over justice.
Judges frequently share these feelings, particularly when the constitutional blemish is nothing more than what Justice Benjamin Cardozo called the constable's blunder, an inattention to common-sense police procedure, not a deliberate trampling on an individual's rights.
The problems grow out of two ways of viewing a defendant: the Constitution and the justice system. This does not mean one is liberal and the other conservative; nor that one is idealistic and the other pragmatic; nor that the Constitution is out of touch with today's reality.
Constitution and justice system seek the same result: a fair determination of the defendant's guilt or innocence. But they reach the result not so much from different directions as from different premises.
Read the great guarantees in the body of the Constitution or the Bill of Rights. They all presuppose an innocent man wrongly accused. There is the right to a jury trial in the state where the crime was committed -- to prevent someone's being hauled before a far-off tribunal where defense would be expensive and difficult. Also, the two-witness rule in treason -- to ensure against a spiteful government's trying to eliminate political enemies.
The same concept underlies the other procedural protections: the right not to be tried more than once for the same offense; the right to a grand jury's screening; the right to know the accusation; the right to confront one's accusers; the right to a lawyer; and the right to compel the attendance of favorable witnesses.
And the principles most involved in motions to suppress -- the right against self-incrimination, and the protection against unreasonable searches of ``persons, houses, papers, and effects'' -- both center on the vital need to protect the innocent.
This constitutional panoply of course serves to ensure that only if the government has cleared a series of high obstacles will the jury be allowed to answer ``guilty.'' That, however, is just another way of saying that we constitutionally fear, and constitutionally seek to avoid, convicting someone who did not commit the crime.
Paired with this anxiety over the possibility of erroneous condemnation is, and always has been, the deep belief that the government rarely ravishes innocence. At the time of the Constitution and the Bill of Rights, down, indeed, into the 19th century, everyone called the defendant ``the prisoner,'' even if the court had allowed him bail. It is only within the last decade that Massachusetts abolished the practice of seating the defendant in a separate pen called ``the dock.''
We all talk about the presumption of innocence, and the judge carefully instructs the jury that the defendant is not merely considered innocent, but is innocent, unless the government proves his guilt beyond a reasonable doubt. Yet even as he tells the jury that smoke does not necessarily indicate fire, the judge keeps recalling that 85 percent of people accused eventually admit their guilt (by pleading guilty), and that a high proportion of trials result in convictions.
Thus the tension persists. We assume that every defendant is innocent, and we call upon the Constitution to protect him, all the while knowing that the prosecution is justified more than 9 times in 10.
The conflict is healthy, even essential. But until we all come to accept its consequences, a lot of non-lawyers are going to keep thinking that motions to suppress are the refuge of the guilty.
Hiller B. Zobel sits on the Massachusetts Superior Court.