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Wednesday, August 29, 2012

Best Facial Cream For Frown Lines - Discover Natural Way to Remove Frown Lines Without Botox

Are you looking for the best facial cream for frown lines? Are looking for something that is effective and safe on your body? Then read on to find out how to remove frown lines without Botox.

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Finding the best facial cream for frown lines is easy if you know what to look for; it is unfortunately that many consumers do not do any research before buying skin care products. Majority of people rely on advertisements and what is popular; what they do not know is that most of the adverts present false claims and popularity does not mean efficiency. You find out that the product do not deliver on its promises only after you must have bought and used it.

I too have been a victim of such false claims; but, that have change because, I no longer buy products based on popularity or advertisements. I focus on what is really important; I focus on the ingredients because the potency of any skin cream is determined by the ingredients it contains.

Best Facial Cream For Frown Lines - Discover Natural Way to Remove Frown Lines Without Botox

First, I do not use products that contain synthetic ingredients/chemicals because they are harmful to the body; they also dry out the skin, causing irritation and allergic reactions. Hence, the best facial cream for frown lines is found among natural brands.

Lines and wrinkles are basically caused by loss of collagen and elastin; hence, the best facial cream for frown lines should boost collagen and elastin in your body. However, using products that contain these two proteins will not help get rid of your wrinkles; these vital substances cannot be absorbed into your body if applied topically because the keratin molecules in them are too big to pass through the pores of your skin.

You may have noticed that most of the popular anti-wrinkle creams contain collagen or elastin as ingredient; they are just capitalizing on the ignorance of consumers. The best facial cream for frown lines should contain ingredients that enhance natural production of the two proteins in your body.

Cynergy TK, which is an active keratin developed by an upcoming New Zealand company is proven to do just that. Not only does Cynergy TK stimulate collagen and elastin production, it also increases the creation of new cells in your body, thereby making your skin to look rejuvenated and younger. It helps to firm up your skin as well as get rid of wrinkles and skin discolorations like age spots.

Other natural ingredients that the best facial cream for frown line should contain include Nano-lipobelle HEQ10 and plant oils like Babassu, Maracuja and Grapeseed oil. For more information on how to make your skin look younger and flawless, visit my website.

Discover the best facial cream for frown lines today.

Best Facial Cream For Frown Lines - Discover Natural Way to Remove Frown Lines Without Botox

Do you want to get rid of sagging skin, remove wrinkles, age spots and de-age your skin? Visit my website http://www.healthy-and-clear-skin-site.com to learn the truth the big brand names do not want you to know and discover safe and effective natural skin care products that will make your skin look healthy, firm, smooth, flawless, younger and beautiful.

Caroline Igwe is an avid researcher on skincare and she enjoys sharing information about her research findings.

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Sunday, August 26, 2012

The United States Mandatory Rule of Exclusion Is Due For a Make-Over: Discretionary Approach? Part 1

Introduction: The United States Exclusionary Rule

Contemporary constitutional provisions oftentimes integrate explicit boundaries or restrictions on the investigatory power of the police. These constitutional stipulations typically supplement guarantees aimed at ensuring fair standards in the criminal process, for those detained or charged with a crime (En 1) Most of these documents echo themes first articulated in the United States' Bill of Rights (En 2) and reiterated centuries later in the Universal Declaration of Human Rights (En 3.)

These recent global developments are not surprising. The potential for tyranny is constant, even in modern societies. Throughout history, oppressive regimes have used their unlimited police powers to search the homes of political opponents, to detain dissidents without trial, to conduct "show trials" for political purposes, or to subject opponents to torture or other extreme forms of punishment. Limitless police powers take the greatest toll on a society's most vulnerable members: the young, the homeless, the poor, racial or ethnic minorities, and political dissidents. It must be recognized, however, that in modern society, crime is one of the greatest threats to individual safety. If a society is so crime ridden that its members live in a perpetual state of fear, the niceties of constitutional liberty may seem unimportant to the populace. Fear of crime and criminals provokes a demand for government action. These two competing concerns are the basis surrounding the idea of the Exclusionary Rule. It all begins when the police excesses yield inculpatory evidence against a criminal accused. When evidence has been obtained in contravention of the Constitution, two opposing concerns meet: society's interest in seeing that persons guilty of crime are detected, prosecuted, convicted and punished, and a concurrent societal interest in safeguarding individual liberties against unlawful or unconstitutional police conduct. (Dawson, The Exclusion of Unlawfully Obtained Evidence.)

The United States Mandatory Rule of Exclusion Is Due For a Make-Over: Discretionary Approach? Part 1

In the United States, these differing principles are presently resolved in favor of individual liberty, through the use of the exclusionary rule.(EN6) This rule, created my case-law, is anything but "resolved." Since its creation, the rule has led to extensive litigation and a never-ending flow of academic commentary. The debate surrounding the issue has continued unabated in the United States for almost one hundred years.

The following dissertation will provide an in-depth look into the mandatory or automatic exclusionary rule doctrine of the United States. The following piece will present a detailed elucidation of the exclusionary rule as it stands today, as well as the history leading up to its inception together with the underlying reasons for its formulation. Furthermore, the benefits and detriments of the doctrine will be discussed, providing the views of both the proponents and opponents of the rule as well as an inquiry into the question of whether or not this Exclusionary Rule is really doing the job it was intended to do, specifically to deter future illegal police conduct. An investigation into the question of whether or not there needs to be other underlying policy reasons, aside from the deterrence of police misconduct rationale, for the application of the Exclusionary Rule, will also be conducted.

The piece will further explore beyond the borders of the United States and into Canada to observe how the idea of suppressing evidence obtained in violation of the individual's rights, is applied abroad. The piece will discuss differences in the application of the mandatory exclusionary rule in the United States and the discretionary exclusionary rule in Canada and will compare and contrast policy reasons underlying their respective application of evidence suppression rules.

The dissertation will argue for the codification of the current mandatory or automatic exclusionary rule doctrine of the United States to a discretionary exclusionary doctrine which is currently applied in Canada. Such an amendment will endow the United States with benefits far beyond the ones the current exclusionary rule provides, such as bequeathing remedies to the individuals whose rights have been violated as well as appropriate penalties for the violating conduct of the police.

The definition of the United States mandatory exclusionary rule

In order to deeply delve in to the critique of the Exclusionary Rule, it is vital to understand its definition, characteristics, and circumstances in which it is applied. In legal proceedings, the exclusionary rule prohibits the use of any evidence obtained in contravention of the U.S. Constitution. The rule is invoked when government authorities seize evidence in violation of the Fourth Amendment's prohibition against unlawful searches and seizures. Evidence may be illegally obtained when government officials do not have a warrant to search an individual's premises or the warrant is defective. Law enforcement officers may also lack sufficient probable cause to arrest a person. In addition, the courts will automatically invoke the exclusionary rule when they find a violation of an individual's Fifth Amendment right against self-incrimination or a violation of a defendant's Sixth Amendment right to counsel. Courts often refer to evidence obtained in violation of the Fourth, Fifth, or Sixth Amendment as "tainted" or "the fruit of a poisonous tree." A criminal defendant who claims an unreasonable search and seizure is usually allowed to make the claims in a suppression hearing that is conducted before the trial. At this hearing the judge must determine what evidence will be suppressed, or excluded from trial.

This automatic exclusionary rule has 3 elements. First, there must be an illegal action by a police officer, or by someone acting as n agent of the police. Second, there must be evidence secured. The third element states that there must be a casual connection between the illegal action and the evidence secured. If the defense believes such an offense has taken place, the defense lawyer may file a motion to suppress the evidence. It is then up to the prosecutor to prove by a preponderance of the evidence that the evidence was collected without violating the defendant's Fourth amendment rights. If the prosecution fails to prove this case, the evidence will automatically be suppressed from the case-in-chief, and absolutely no consideration will be given to the probative value of that evidence, even if it may be the only evidence out there. With time, the courts, after realizing the broad scope of this mandatory rule, began to narrow its application. There are now three exceptions to the exclusionary rule. In these cases, while the situation meets the three elements needed to trigger the exclusionary rule, the evidence will be allowed anyway. The first exception is the Independent Source Doctrine. This exception was created in the Supreme Court case of Segura and Colon v U.S in 1984. In this situation, evidence is seized in two different physical ways. One of them is illegal, but the second seizure of the same evidence is legal. For example, if one were to photo-copy financial records without a warrant of someone suspected of embezzlement, but then later returned with a warrant and re-copied the information, that evidence would be allowed. The second exception is the Inevitable Discovery Doctrine. The case that added this exception was Nix vs. Williams, in 1984. This exception states that the evidence is seized in two different ways, but only one being physical. The evidence is secured physically by illegal means, but there is also a hypothetical seizure of the evidence that would not have been illegal. For example, if a dead body was buried, and the police violated a defendant's rights in order to force him to tell where the body was, this would be the illegal physical seizure. However, if there was a search for the body in progress that would have eventually crossed the area where the body was to be found, this would be the hypothetical seizure. The prosecution must prove by a preponderance of the evidence that the evidence would have been located by this hypothetical means had it not been sized illegally. The third and final exception is that of Good Faith, which was added in the Supreme Court cases of U.S. vs. Leon and Mass. vs. Sheppard, both in 1984. In this case, a police officer receives a warrant from a magistrate and acts on it to seize evidence. However, there may have been an error in allowing the police officer to have the warrant. Since the point of the exclusionary rule is to deter police misconduct, and there would have been no misconduct by a police officer, the evidence would not be suppressed.

History of the rule

Between 1791 and 1914, the constitutionally guaranteed right of all citizens to be secure against unreasonable searches and seizures remained virtually un-enforced by American courts. The Fourth Amendment had the words that warned the government not to engage in unreasonable searches and seizures, but lacked any means to restrain government officials from violating citizens' Fourth Amendment rights. Not until 1914 in Weeks v. United States, [FN4] did the U.S. Supreme Court recognize that if evidence can be illegally obtained "and used in evidence against a citizen accused of an offense, the protection of the Fourth Amendment... is of no value, and, so far as those thus placed are concerned, might as well be stricken from the Constitution." [] Thus, the United States faced the problem that, while the Fourth Amendment guaranteed protection against unreasonable searches and seizures, the judicial system, as the primary protector of constitutional rights, did nothing to deter or punish unreasonable searches and seizures. To give value to the Fourth Amendment protection against unreasonable searches and seizures, the U.S. Supreme Court, in Weeks, held that the Federal government and its agencies could not use illegally obtained evidence against the accused at trial. In other words, the Court established an exclusionary rule that illegally obtained evidence is inadmissible at trial and applied it only to the Federal courts. [FN6] The Court propounded two central rationales for its adoption of the Exclusionary Rule. First, there was the need to protect citizens' Fourth Amendment rights by deterring government conduct that violated those rights. [FN7] Second, there was the need to preserve the integrity of the judicial system by refusing to sanction illegal police conduct: "To sanction such proceedings [where illegally obtained evidence is admitted] would be to affirm by judicial decision a manifest neglect if not an open defiance of the prohibitions of the Constitution, intended for the protection of the people against such unauthorized action." [FN8] While Weeks represented a significant development in enforcing Fourth Amendment rights, its limitation to federal courts greatly restricted the Rule's ability to enforce those rights.

Four decades later, in Mapp v. Ohio, [FN9] three police officers invaded Dollree Mapp's home. The officers knocked on her door and demanded entry. They suspected that someone they wanted to question was hiding inside. Mapp consulted her lawyer and refused to admit the officers. Later that day, four or more officers arrived at the home, which was still under surveillance by the original officers. The officers then finally and forcibly entered Mapp's home. About that time, Mapp's lawyer arrived at the home but was not permitted to see his client or to enter her house. Confronting the officers in her home, Mapp demanded to see their search warrant. After Mapp grabbed the purported warrant and placed it in her bosom, the officers forcibly recovered it from her. Mapp's arms were grabbed, twisted, forced into handcuffs, and she was dragged to her bedroom where she was forced to remain. The officers searched the entire floor, including Mapp's bedroom and the basement of her home. The officers found incriminating obscene materials and she was convicted of possession. Whether the officers had secured a warrant to search Mapp's home was subject to "considerable doubt," and no such warrant was produced at any subsequent legal proceeding. [FN10] Given the particularly egregious nature of the police misconduct, the Supreme Court felt compelled to bestow teeth to the Fourth Amendment by making the Exclusionary Rule, first enunciated in Weeks, applicable to the states.

In holding the Exclusionary Rule applicable to both state and federal courts, the Mapp Court decided to "close the only courtroom door remaining open to evidence secured by official lawlessness in flagrant abuse of that basic right, reserved to all persons as a specific guarantee against that very same unlawful conduct." [FN11] As in Weeks, the Mapp Court reiterated that without the Exclusionary Rule, the use of illegally obtained evidence to convict criminal defendants "tends to destroy the entire system of constitutional restraints on which the liberties of the people rest." [FN12]

Mapp reiterated the dual rationales enunciated in Weeks: protection of citizens' Fourth Amendment rights, and preservation of judicial integrity. [FN13] These dual rationales actually comprise only one justification behind The Exclusionary Rule: the recognition that allowing unrestricted use of illegally obtained evidence will not discourage violation of the constitutionally protected right.

Competing Concerns regarding the Exclusionary Rule in the United States

The Exclusionary Rule is certainly one of those controversial doctrines that caries with it its own share of proponents as well as detractors. When evidence has been obtained in contravention of the Constitution, the two opposing concerns meet: society's interest in seeing that persons guilty of crime are detected, prosecuted, convicted and punished, and a concurrent societal interest in safeguarding individual liberties against unlawful or unconstitutional police conduct. [FN5]. In the United States, these differing principles are presently resolved in favor of individual liberty, through the use of the exclusionary rule. [FN6] But the status of the American exclusionary rule is anything but "resolved." Since its creation, the rule has led to extensive litigation and a never-ending flow of academic commentary. The debate surrounding the issue has continued unabated in the United States for almost one hundred years.

As aforementioned, generally, two opposing viewpoints have emerged from all the debate concerning the exclusionary rule. There are those who want to abolish the exclusionary rule and those who wish to retain it. The critics of the rule are evidently more concerned with the idea of ensuring that the guilty are punished and kept in prisons than the view of making sure the constitutional rights and liberties of the people are kept intact. The proponents, contrary to the critics, are obviously more interested in making sure that the liberties of the people are protected, even though that may come at a price of letting the guilty go free. Opponents of the exclusionary rule argue that this extreme remedy is not required by the Constitution. They claim the rule is merely judicially created, fashioned to protect constitutional rights by deterring future police illegality. Critics complain that the exclusionary rule is not an effective deterrent and exacts a huge toll in lost convictions. According to critics, the rule's costs outweigh its negligible benefits. Therefore, it is invariably argued, the exclusionary rule should be replaced with some more effective and less costly alternative remedy.

In stark contrast, proponents of the exclusionary rule insist that it is mandated by the Constitution and serves as an effective deterrent. They argue that those who criticize its deterrent value fail to recognize that the rule is necessary to preserve judicial integrity and compensate individual victims of police illegality. Proponents complain that the rule's detractors mask a dissatisfaction with substantive constitutional guarantees, under an attack on the exclusionary remedy. If law enforcement obeys the constitutional rules, as they should, then there would be no illegally obtained evidence to be excluded. According to proponents, this remedy is matchless. No other device is equally capable of safeguarding the Constitution's guarantees in a criminal context.

The debate surrounding the exclusionary rule has been ongoing in the United States since the Weeks decision. Arguably, the historical debate is capable of being encapsulated into seven general criticisms and responses:

1) Criticism--The criminal is to go free because the constable has blundered. [FN123]

Response--Criminals do not go free because the constable blundered, but rather because official compliance with the requirements of the Fourth Amendment makes it more difficult to catch criminals. It is not the exclusionary rule but the Fourth Amendment which imposes a cost in lost convictions. [FN124]

2) Criticism--The exclusionary rule serves to handcuff the police in their legitimate and important effort to enforce the criminal law. [FN125]

Response--It is the constitutional rule, not the exclusionary sanction, which imposes limits on the operation of the police. If the police abide by the Constitution, there would be no evidence to exclude. The exclusionary rule, by definition, operates only after incriminating evidence has been obtained and flaunts before us the costs we must pay for constitutional safeguards. [FN126]

3) Criticism--The exclusionary rule does not provide a remedy for innocent persons who are the victims of unconstitutional conduct. The rule exclusively serves to benefit the guilty. [FN127]

Response--The Fourth Amendment protects everyone against unreasonable searches and seizures. The exclusionary rule inures to the benefit of all by decreasing the likelihood that anyone, "innocent" or "guilty," will be subjected to an unconstitutional search or seizure. In this fashion, individual liberty is benefited on a general level by the rule.

Criticism--Suppression motions, in which defendants seek the benefit of the exclusionary rule, unnecessarily shift the focus of the trial away from the defendants' guilt or innocence. These hearings are costly and distract judges from other important matters. Finally, the court is not the proper forum to discipline police officers for their unconstitutional activities.

Response--Courts should be preoccupied with the manner in which evidence has been obtained, otherwise the Constitution's guarantees would be rendered meaningless. It is the courts that must assume the role of being the final arbiters of individual rights. Absent such judicial scrutiny, constitutional violations would go unnoticed. Similarly, without continual judicial review, the Constitution's guarantees would remain unarticulated and rarely defined. The Constitution would only be expounded in rare actions for assault, trespass and false imprisonment, and prosecutions for resisting arrest or obstructing the police in the execution of their duty. [FN130]

6) Criticism--The exclusionary rule confers a disproportionate benefit on a defendant. A relatively minor violation of the Constitution results in the exclusion of evidence and necessitates that a guilty defendant go free. This windfall is contrary to the idea of proportionality that is essential to the concept of justice.

Response--This criticism is only significant if one conceives the purpose of the rule to be compensation of the individual victim. [FN132] If the compensation rationale is used, however, the criticism remains inaccurate. A number of exceptions to the exclusionary rule have been created to ensure that all that is excluded is the evidence the police would not have found had they abided by the Constitution. The exclusionary rule does not confer immunity on a defendant against future prosecution; it simply restores him to the position he would have occupied had his constitutional rights not been violated.

Criticism--The exclusionary rule in the United States is anomalous; other democratic nations do not employ an exclusionary rule and they are arguably as free as the United States. [FN134]

Response--The United States is not alone in employing an exclusionary rule; a number of nations use exclusion of evidence as a means to safeguard individual rights. For instance, England, Scotland, Ireland, Australia, New Zealand, Canada, Germany and France all have some form of an exclusionary rule.

Problems with the United States mandatory exclusionary rule

Looking at the above arguments, it is clear that the opponents and proponents are completely at opposite sides of the spectrum in deciding an issue which appears to have two possible conclusions: a) to continue maintaining the current exclusionary rule of the United States or b) to abolish it altogether. However, careful consideration and research into this particular sphere can lead one to ask the question of whether or not there is a third alternative, one which would sit between automatic exclusion and admissibility of evidence. Perhaps this third approach would alleviate some of the competing concerns regarding the exclusionary rule currently implemented in the United States. However, prior to making an endeavor to formulate this third possible choice, it is vital to point out some of the quandaries with the current mandatory exclusionary rule.

The mandatory aspect is problematic

As stated above, the United States exclusionary rule is one of mandatory or automatic exclusion. This means that, even highly probative evidence will be suppressed if the police seize it illegally. Proponents of an exclusionary rule must concede that the costs of such a rule occasionally seem too harsh. If a defendant charged with murder is released because a relatively minor and unintended violation of his rights disclosed essential evidence, then it is difficult to deny that the rule occasionally exacts too high a price. The problem with the American exclusionary rule is that it is unable to effectively cope with such exceptional cases. Generally, the rule demands that evidence be excluded regardless of society's competing interest in not having a dangerous criminal released back into the community. This is a major problem.

The mandatory exclusionary rule does not do its job

What is the ob of the exclusionary rule? What was the chief purpose for its establishment in the United States? Mapp reiterated the dual rationales enunciated in Weeks: protection of citizens' Fourth Amendment rights, and preservation of judicial integrity. [FN13] These dual rationales actually comprise only one justification behind The Exclusionary Rule: the recognition that allowing unrestricted use of illegally obtained evidence will not discourage violation of the constitutionally protected right. It is evident that the true aim of the Exclusionary Rule is to deter future police violation of constitutionally protected rights. Specifically, excluding evidence illegally obtained will chasten the government official to the extent that he or she will not engage in similar conduct in the future. It is implicit that if the offending government official would not be deterred from future illegality, then application of the Rule would be inappropriate. Indeed, in a series of cases after Mapp, the Supreme Court held the Rule's application inappropriate where the exclusion would not deter future Fourth Amendment violations. In United States v. Calandra, [FN14] the Court declined to allow grand jury witnesses to refuse to answer questions based upon evidence illegally seized because the "incremental deterrent effect which might be achieved by extending the rule to grand jury proceedings is uncertain at best." [FN15] In United States v. Janis, [FN16] the Court permitted the use of evidence seized illegally by state officials in federal civil proceedings because the illegal conduct was not likely to be deterred by exclusion in that setting. [FN17] The Court cited two factors which made exclusion unnecessary *49in the Janis case. [FN18] First, since the evidence was suppressed in the state criminal trial, the officer had already been "punished" for violating the Fourth Amendment. [FN19] Second, since the evidence was also excludable at the federal criminal trial, the entire criminal enforcement process, which was the concern and duty of these officers, would be frustrated by the exclusion of the evidence in both proceedings. [FN20] Thus, the Exclusionary Rule accomplished its intended goal of deterrence in the criminal courts, and any further possible deterrent effect that exclusion from federal civil proceedings might cause would be outweighed by the societal costs imposed by the exclusion. [FN21] More recently, in United States v. Leon, [FN22] the Court found the Rule's application inapplicable when police officers reasonably relied on a search warrant. [FN23] Since the constitutional error in Leon was made by the magistrate in approving the search warrant, there was no police illegality and hence nothing to deter. [FN24] Furthermore, the Court held that suppression of evidence obtained pursuant to a warrant should be ordered only on a case-by-case basis and only in those unusual cases in which exclusion will further the purposes of the Exclusionary Rule. [FN25] Leon is a powerful mandate holding that judges should not exclude evidence unless exclusion would deter future illegal police conduct.

Therefore, it is beyond dispute that the Exclusionary Rule, and the focus of modern Supreme Court opinions construing the Exclusionary Rule, is the preservation of our constitutional rights through the deterrence of future police misconduct that violates those rights.

So is the exclusionary rule really deterring unconstitutional police seizure of evidence? For the Exclusionary Rule to deter future police misconduct, the exclusion of the evidence must be communicated to the offending officer, the officer must learn why it was excluded, and he or she must be provided with some incentive to improve his or her future performance. *55 Absent these steps, is there motivation for a police officer to conform his or her conduct to the dictates of the Fourth Amendment?

Deterrence from wrongful conduct will only occur if notice of that conduct is effectively communicated to the wrongdoer. However, despite this apparent common sense notion, the Exclusionary Rule contains no provision for any police "education." Indeed, whether the police officer who has violated a defendant's constitutional rights will ever learn that he or she has committed such a violation is, at best, uncertain. [FN48] For example, the most direct educational effect will be felt by those officers who attend the suppression hearing (perhaps because they must present evidence of their conduct) and actually hear the court's ruling on the motion. Even then, the basis of the ruling may not be clear to the officer, or she may feel that the result was the product of a misguided or even ill-conceived system, rather than the result of her misconduct. In any case, the offending officer often does not attend the suppression hearing, so no direct lesson is possible. Whether the police officer is made aware of his or her misconduct will then depend upon how effectively the prosecutor or police supervisors communicate with the involved officers. Thus any educational effect of the Exclusionary Rule is unpredictable and often left completely to chance. [FN49]

An additional impediment to the educational aspect of deterrence of Fourth Amendment violations lies in the failure to file many potential prosecutions that result from constitutionally flawed investigations. A prosecutor, strongly believing that critical evidence is the product of illegal police activity, is not likely to even file the case. In these situations, whether the police officer learns that he or she illegally seized a piece of evidence will depend upon how well the prosecutor or police supervisor communicates with the offending officer. Again, any such communication is haphazard at best.

Prior to a case even reaching a prosecutor, as the Supreme Court observed, the Exclusionary Rule "is powerless to deter invasions of constitutionally guaranteed rights where the police either have no interest in prosecuting or are willing to forgo successful prosecution in the interest of serving some other goal." [FN50] In other words, where police invade a citizen's Fourth Amendment rights, but do not prosecute that individual, *56 there is no outside review -- such as by a prosecutor or judge -- to inform the officer of the violation.

If the "educational" aspect of deterrence is too vague to reinforce the "right" and "wrong" ways to obtain evidence, among police officers, the "punitive" aspect of the Exclusionary Rule is even more questionable. This is because punishment for illegally obtaining evidence falls directly upon "the government" by forbidding the use of the illegally obtained evidence at trial. Such punishment does not fall upon the offending police officer and, subsequently, any punitive effect felt by the police officer will be fortuitous. The offending officer suffers no formal negative consequences for his or her illegal activity. To be sure, some police departments keep track of data involving illegal searches and seizures conducted by officers and may use the data in decisions concerning promotions, salary increases, and the like. In addition, officers who are found to have violated a defendant's constitutional rights, and who are aware of this finding, may feel responsible for a failed prosecution, and may suffer from loss of stature in the eyes of their colleagues. But because the punitive effect of the Exclusionary Rule reaches the offending officers only indirectly, if at all, it seriously compromises the ability to deter police misconduct. A police officer who has violated a defendant's rights is not held personally accountable for that violation. In fact, empirical studies support the view that the Rule has a minimal effect on the police officers' on-the-street behavior. This is the ironic effect of the American Exclusionary Rule: In essence, the present rule lacks the power to deter, even though deterrence is the primary objective cited by the Supreme Court for implementing and then retaining the Exclusionary Rule. [FN51]

Deterrence as sole purpose and exceptions are signs of backtracking

As stated above, American courts, in their effort to limit the broad application of the exclusionary rule, have focused on deterrence as the rule's sole justification. The emphasis on deterrence, however, has posed an impediment to alleviating the most troublesome aspect of the rule's operation. If deterrence is the exclusionary rule's only purpose, then dangerous criminals must go free, even if a constitutional violation was relatively minor or technical. This reasoning ignores the harmful effect that exclusion may occasionally have on the integrity of the courts. In a free society it is essential that the court command respect within the community, otherwise it will not be long before the authority of the court is diminished and the rule of law is threatened. Should this occur, the collective freedom of everyone within a society would be markedly diminished.

The other difficulty with the contemporary United States position is the judiciary's effort to scale back the rule's operation through the use of exceptions. These exceptions, as stated above, are rules which state that even when constitutional rights of the accused are violated in the obtainment of the evidence, they will still not be suppressed if one of the exceptions, such as the good faith exceptions applies.

The United States Mandatory Rule of Exclusion Is Due For a Make-Over: Discretionary Approach? Part 1 Direct Dealer Stores Zone
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Wednesday, August 22, 2012

Advertising - Precious Information Or Vicious Manipulation?

Is advertising the ultimate means to inform and help us in our everyday decision-making or is it just an excessively powerful form of mass deception used by companies to persuade their prospects and customers to buy products and services they do not need? Consumers in the global village are exposed to increasing number of advertisement messages and spending for advertisements is increasing accordingly.

It will not be exaggerated if we conclude that we are 'soaked in this cultural rain of marketing communications' through TV, press, cinema, Internet, etc. (Hackley and Kitchen, 1999). But if thirty years ago the marketing communication tools were used mainly as a product-centered tactical means, now the promotional mix, and in particular the advertising is focused on signs and semiotics. Some argue that the marketers' efforts eventually are "turning the economy into symbol so that it means something to the consumer" (Williamson, cited in Anonymous, Marketing Communications, 2006: 569). One critical consequence is that many of the contemporary advertisements "are selling us ourselves" (ibid.)

The abovementioned process is influenced by the commoditisation of products and blurring of consumer's own perceptions of the companies' offering. In order to differentiate and position their products and/or services today's businesses employ advertising which is sometimes considered not only of bad taste, but also as deliberately intrusive and manipulative. The issue of bad advertising is topical to such extent that organisations like Adbusters have embraced the tactics of subvertising - revealing the real intend behind the modern advertising. The Adbusters magazine editor-in-chief Kalle Lason commented on the corporate image building communication activities of the big companies: "We know that oil companies aren't really friendly to nature, and tobacco companies don't really care about ethics" (Arnold, 2001). On the other hand, the "ethics and social responsibility are important determinants of such long-term gains as survival, long-term profitability, and competitiveness of the organization" (Singhapakdi, 1999). Without communications strategy that revolves around ethics and social responsibility the concepts of total quality and customer relationships building become elusive. However, there could be no easy clear-cut ethics formula of marketing communications.

Advertising - Precious Information Or Vicious Manipulation?

ADVERTISING - PRESCIOUS INFORMATION OR VICIOUS MANIPULATION?

In order to get insights into the consumer perception about the role of advertising we have reviewed a number of articles and conducted four in-depth interviews. A number of research papers reach opposed conclusions. These vary from the ones stating that "the ethicality of a firm's behavior is an important consideration during the purchase decision" and that consumers "will reward ethical behavior by a willingness to pay higher prices for that firm's product" (Creyer and Ross Jr., 1997) to others stressing that "although consumers may express a desire to support ethical companies, and punish unethical companies, their actual purchase behaviour often remains unaffected by ethical concerns" and that "price, quality and value outweigh ethical criteria in consumer purchase behaviour" (Carrigan and Attalla, 2001). Focusing on the advertising as the most prominent marketing communication tool we have constructed and conducted an interview consisting of four themes and nine questions. The conceptual frame of this paper is built on these four themes.

THEME I. The Ethics in Advertising

The first theme comprises two introductory questions about the ethics in advertising in general.

I.A. How would you define the ethics in advertising?

The term ethics in business involves "morality, organisational ethics and professional deontology" (Isaac, cited in Bergadaa', 2007). Every industry has its own guidelines for the ethical requirements. However, the principal four requirements for marketing communications are to be legal, decent, honest and truthful. Unfortunately, in a society where the course of action of the companies is determined by profit targets the use of marketing communications messages "may constitute a form of social pollution through the potentially damaging and unintended effects it may have on consumer decision making" (Hackley and Kitchen, 1999).

One of the interviewed respondents stated that "the most successful companies do no need ethics in their activities because they have built empires." Another view is that "sooner or later whoever is not ethical will face the negative consequences."

I.B. What is your perception of the importance of ethics in advertising?

The second question is about the importance of being moral when communicating with/to your target audiences and the way consumers/customers view it. In different research papers we have found quite opposing conclusions. Ethics of business seems to be evaluated either as very important in the decision making process or as not really a serious factor in this process. An example of rather extreme stance is that "disaster awaits any brand that acts cynically" (Odell, 2007).

It may seem obvious that the responsibility should be carried by the advertiser because "his is the key responsibility in keeping advertising clean and decent" (Bernstein, 1951). On the other hand the companies' actions are defined by the "the canons of social responsibility and good taste" (ibid.). One of the interviewees said:

"The only responsible for giving decent advertising is the one who profits at the end. Company's profits should not be at the expense of society."

Another one stated that "our culture and the level of societal awareness determine the good and bad in advertising".

The increased importance of marketing communications ethics is underscored by the need of applying more dialogical, two-way communications approaches. The "demassification technologies have the potential to facilitate dialogue", but the "monologic" attitude is still the predominant one (Botan, 1997). Arnold (2001) points out the cases of Monsanto and Esso which had to pay "a price for its [theirs] one-way communications strategy". In this train of thought we may review ethics in advertisements from two different perspectives as suggested by our respondents and different points of view in the reviewed papers. The first one is that it is imperative to have one common code of ethics imposed by the law. The other affirms the independence and responsibility of every industry for setting its own standards.

THEME II. Which type of regulation should be the leading one in the field of advertising?

The next theme directs the attention towards the regulation system which should be the primary one. Widely accepted opinion is that both self regulation and legal controls should work in synergy. In other words the codes of practice are meant to complement the laws. However, in certain countries there are stronger legal controls over the advertising, e.g. in Scandinavia. On the other hand the industry's self regulation is preferred in the Anglo-Saxon world. Still, not everyone agrees with the laissez-faire concept.

One of our respondents said:

"I believe governments should impose stricter legal frame and harsher punishment for companies which do not comply with the law."

Needless to say, the social acceptability varies from one culture/country to another. At the end of the day "good taste or bad is largely a matter of the time, the place, and the individual" (Bernstein, 1951). It would be also probably impossible to set clear-cut detailed rules in the era of Internet and interactive TV. Therefore, both types of regulation should be applied with the ultimate aim of reaching balance between the sacred right of freedom of choice and information and minimizing possible widespread offence. Put differently, the goal is synchronising the "different ethical frameworks" of marketers and "others in society" in order to fill the "ethics gap" (Hunt and Vitell, 2006).

THEME III. Content of Advertisements.

Probably the most controversial issue in the field of marketing communications is the content of advertisements. Nwachukwu et al. (1997) distinguish three areas of interest in terms of ethical judgment of ads: "individual autonomy, consumer sovereignty, and the nature of the product". The individual autonomy is concerned with advertising to children. Consumer sovereignty deals with the level of knowledge and sophistication of the target audience whereas the ads for harmful products are in the centre of public opinion for a long time. We have added two more perspectives to arrive at five questions in the conducted interviews. The first one concerns the advertisement that imply sense of guilt and praise affluence that in the most cases cannot be achieved and the second one is about advertisements stimulating desire and satisfaction through acquisition of material goods.

III.A. What is your attitude towards the advertisement of harmful products?

A typical example is the advertisement of cigarettes. Nowadays we cannot see slogans like "Camel Agrees with Your Throat" (Chickenhead, accessed 25th September 2007) or "Chesterfield - Packs More Pleasure - Because It's More Perfectly Packed!" (Chickenhead, accessed 25th September 2007). The general advertisement, sponsorship and other marketing communications means are already prohibited to be used by cigarette producers. Surprisingly, most of the answers of the respondents were not against the cigarettes advertisement. One of the respondents said:

"People are well informed about the consequences of smoking so it is a matter of personal choice."

As with many other contemporary products the shift in communications messages for cigarettes is oriented towards symbol and image building. The same can be said for the alcohol ads. A well-known example of emotional advertising is the Absolut Vodka campaign. From Absolut Nectar, through Absolut Fantasy to Absolut World the Swedish drink actually aims to be Absolut... Everything.

Advertising of hazardous products is even more harshly criticised when it is aimed at audiences with low individual autonomy, i.e. children. Two main issues in this respect are the manipulation of cigarettes and alcohol as "the rite of passage into adulthood" and the fact that "sales of health-hazardous products (alcohol, cigarettes) develop freely without much disapproval" (Bergadaa, 2007).

III.B. What is your attitude towards the advertisement to children?

Children are not only customers, but also consumers, influencers and users in the family Decision-Making Unit (DMU). Additional difficulty is that they are too impressionable to be deciders in the DMU. At the same time it is not a secret that marketers apply "the same basic strategy of trying to sell the parent through the child's insistence on the purchase" (Bernstein, 1951). It is not a surprise then that "spending on advertising for children has increased five-fold in the last ten years and two thirds of commercials during child television programs are for food products" (Bergadaa 2007). In the US alone children represent a direct purchases market of billion worth (McNeal cited in Bergadaa, 2007) which certainly is on the top of the agendas of many companies. While exploiting children's decision-making immaturity advertisers often go too far in dematerialising their products and "teleporting children out of the tangible and into the virtual world of brand names" (Bergadaa 2007). Teenage virtual worlds like Habbo where snack food brands run advertising campaigns are already a fact of life (Goldie, 2007). The imaginative worlds are popular not only online. Hugely successful for creating a fantasy world is Mc Donald's. The company tops the European list of kids' advertisers while more than half of the children's adverts are for junk food.

In some countries there are harsher restrictions to the children advertising.

• "Sweden and Norway do not permit any television advertising to be directed towards children under 12 and no adverts at all are allowed during children's programmes.
• Australia does not allow advertisements during programmes for pre-school children.
• Austria does not permit advertising during children's programmes, and in the Flemish region of Belgium no advertising is permitted 5 minutes before or after programmes for children.
• Sponsorship of children's programmes is not permitted in Denmark, Finland, Norway and Sweden while in Germany and the Netherlands, although it is allowed, it is not used in practice." (McSpotlight, accessed 20th September 2007).

According to a research by Roberts and Pettigrew (2007) the most frequent themes in children advertising are "grazing, the denigration of core foods, exaggerated health claims, and the implied ability of certain foods to enhance popularity, performance and mood." But the junk food is not the only reason for parents' preoccupation. According to a study of Kaiser Family Foundation (Dolliver, 2007) parents are concerned about the amount of advertising of the following products (in order of importance): toys, video games, clothing, alcohol/beer, movies, etc.

The interviewed respondents were unanimous: "The advertising to children should be strictly monitored." Similar results were obtained in surveys by Rasmussen Reports and Kaiser Family Foundation. Nevertheless, the legal means are just one part of the children's protection. The other part involves "the decision-making responsibility of parents and teachers" which is "to assist their children in developing a skeptical attitude to the information in advertising" (Bergadaa 2007). The marketers themselves should also be involved in shaping the moral system of our future and "each brand should have its own deontology - a code of practice regarding children - rather than rely on industry codes" (Horgan, 2007).

III.C. Do you think there are many misleading, exaggerating and confusing advertisements. Are many ads promising things that are not possible to achieve?

It will not be exaggerated to state that advertising is in a sense "salesmanship addressed to masses of potential buyers rather than to one buyer at a time" (Bernstein, 1951). Since "salesmanship itself is persuasion" (ibid.) we cannot merely blame advertisers for pursuing their sales goals. However, in the last twenty years or so advertisers have increasingly applied semiotics in their messages and as a consequence ads have begun to function more and more as symbols. One extreme case in this stream of advertising is the creation of idealised image of a person who uses the advertised product. Bishop (2000) draws our attention to two "typical representatives of self-identity image ads" which entice consumers to project the respective images to themselves through use of the products:

- "The Beautiful Woman";
- "The Sexy Teenagers.

Through setting of such stereotypes advertisers not only mislead the public and exaggerate the effects of products but also provoke low self-esteem in consumers. At the same time they promise results that in most cases are simply impossible to achieve. Instead of promoting "'glamorous' anorexic body images" communication messages should use "varied body types" and should drop the idea of the "impossible physical body images" (Bishop, 2000).

To question III.C one of the respondents commented:

"The customers of these products [the ones advertised through thin models] are mostly people who do not have the same physical characteristic. For me, this type of advertising is deliberately aimed at people to make them feel not complete, far from attractive social outsiders."

However, another interviewed stated that: "every person has his own way of evaluating what is believable and what is misleading. Consumers are enough sophisticated to know what is exaggerated."

Similarly, Bishop (2000) concludes that "image ads are not false or misleading", and "whether or not they advocate false values is a matter for subjective reflection." The author argues that image ads do not interfere with our internal autonomy and if people are misled, it is because they want it. It is all about our free choice of behaviour and no advertisement can modify our desires. Perhaps, the truth lies somewhere in-between the two extreme positions.

III.D. What is your attitude towards advertisement that imply sense of guilt, and praise affluence that in the most cases cannot be achieved?

A more specific case of controversial advertising is the one used to "promote not so much self indulgence as self doubt"; the one that "seeks to create needs, not to fulfill them: to generate new anxieties instead of allaying old ones" (Hackley and Kitchen, 1999). A response of our interviewee reads:

"It is not only a matter of advertising. It has to do with the social inequality and the desire to possess what you can not."

Hackley and Kitchen (1999) refer to this discrepancy as to "when reality does not match the image of affluence and the result is a subjective feeling of dissonance". The issue could be elaborated further through the next question.

III.E. Are advertisements stimulating desire and satisfaction through acquisition of material goods moral?

We live in a society which is more or less marked by materialism. Advertisements are often blamed to fuel consumption which is allegedly leading to happiness. The role of promoting satisfaction through acquisition of material goods has become so important that currently the "media products are characterised by relativism, irony, self referentiality and hedonism" (Hackley and Kitchen, 1999). Is the popular saying "those who die with most toys win" really a motivator in consumers' behavior and could consumption be the cure of emotional dissonance? This seems to be the case provided a brand succeeds to enter in the evoked set of consumer choices. This new "kind of materialism" goes hand in hand with "the emergence of individualism via sheer hedonism along with narcissism and selfishness" (Bergadaa 2007).

THEME IV. Is the quantity of advertisements justified?

IV.A. Do you think there is too much advertising?

An audit of food advertising aimed at children in Australia by Roberts and Pettigrew (2007) revealed that "28.5 hours of children's television programming sampled contained 950 advertisements." Actually, we all are being bombarded by ads on TV, Internet, print media, etc. The amount and content of marketing communications messages puts the consumer's information processing capacity to a test. The exposure to marketing data overload often leads to diluted consumer's selective perception. Whether our responses are circumscribed by "confusion, existential despair, and loss of moral identity" or we "adapt constructively to the [communications] Leviathan and become intelligent, cynical, streetwise" (Hackley and Kitchen, 1999) is a question open to debate.

Two opposite streams of attitudes were produced in our research. One stance is concerned with the undue quantity of advertisement. The other stream proclaims that "If there is an advertisement, so it is justified by a need." We agree that the communications overload may indeed have "pervasive effect on the social ecology of the developed world" (Hackley and Kitchen, 1999). If the increasing communication pollution is not managed properly by both legal and industry points of view yet again the advertising will manage "to hoist its foot to its own mouth and kick out a couple of its own front teeth" (Bernstein, 1951).

CONCLUSION

In preparation of this paper we have used qualitative depth interviews in order to get insights for what actual customers opine. We have also substantiated our presentation with references to a number of influential articles in the field of ethics in marketing communications. Generally, our respondents as well as various authors have taken two opposing stances. The first one affirms that ethics in marketing communications matters considerably, whereas the other one downsizes the importance of ethics, thereby stressing the role of other factors in consumer decision-making, i.e. price, brand loyalty, convenience, etc.

Marketers should understand their "responsibility for the emerging portrait of future society" (Bergadaa 2007). Not only there is a need of legal ethical frame but also professional ethical benchmarks and deontology should be in place. One of the main challenges is to avoid creating "a happy customer in the short term", because "in the long run both consumer and society may suffer as a direct result of the marketer's actions in 'satisfying' the consumer" (Carrigan and Attalla, 2001).

The strength of the advertisement influence exerted on consumers is only one part of the equation. On the other hand we may affirm that consumers are not morally subservient and according to the information process models there is a natural cognitive defense. The communications tools "offer us a theatre of our own imagination" (Hackley and Kitchen, 1999). Consequently, we accept the reality in terms of our own experiences. In this sense marketers do not create reality - they are simply a mirror of the society. We may argue that unfortunately this is not always the case.

Advertising is often deservedly seen as the embodiment of consumer freedom and choice. Notwithstanding this important role, when the choice is "between one candy bar and another, the latest savoury snack or sweetened breakfast cereal or fast food restaurant" (McSpotlight, accessed 20th September 2007) it represents anything else but not an alternative and certainly not a healthy one.

The words of Bernstein (1951), said fifty-six years ago are still very much a question of present interest: "It is not true that if we 'save advertising, we save all,' but it seems reasonable to assume that if we do not save advertising, we might lose all."

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Advertising - Precious Information Or Vicious Manipulation?

Boyan Yordanof is Internet Marketing Executive at RIU Seabank Hotel Malta: http://www.seabankhotel.com

You can also reach him on his personal website [http://www.yordanof.com]

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