Court-Martial Trial Practice Blog
Mary D. Fan (University of Washington – School of Law) has posted The Police Gamesmanship Dilemma in Criminal Procedure (UC Davis Law Review, Forthcoming) on SSRN. Here is the abstract:
Police gaming of the rules is a perennial challenge for constitutional criminal procedure, leading to twists and hazard zones in the law such as the recent decision in Arizona v. Gant and feared fallout from Maryland v. Shatzer. Police gamesmanship in the “competitive enterprise of ferreting out crime” involves rule-pushing and dodging tactics of dubious propriety that exploit blind spots, blurry regions or gaps in rules and remedies. Currently, courts generally avoid peering into the Pandora’s Box of police tactics unless the circumvention of a protection becomes too obvious to ignore and requires a stop-gap rule-patch that further complicates the maze of constitutional criminal procedure. This approach leaves murky the line between fair and foul play and gives police perverse incentive to game covertly. A new approach is needed, founded on a better understanding of police gaming of the rules. This article takes up the task.