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Comments |
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 | Thursday, June 26, 2008 at 8:50:58 mst
Comment ID: #1
Name: Mike Hardy
E-mail: hardy(at)math.umn.edu
"Improved epistemological hygiene in our legal system" is a goal I'm sure many will endorse. It is a commonplace for lawyers to point out that those who complain of dishonesty in things like defending a client one knows to be guilty "do not understand the role of an advocate (and let's feel sorry for them because they're too dumb to grasp that idea)". But nonetheless the legal system not only encourages lawyers to be dishonest but also trains them extensively in techniques of dishonesty. To bring about "improved epistemological hygiene in our legal system", you'll need to be an expert in both law and philosophy. (Weak circumstantial evidence suggests Diana's father is a lawyer; I'm going to assign that a subjective probability of at least 10%.) |
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| Thursday, June 26, 2008 at 9:11:26 mst
Comment ID: #2
Name: Diana Hsieh
E-mail: diana(at)dianahsieh.com
URL: http://www.dianahsieh.com/blog
My father as a lawyer is quite unimaginable, actually. He's a no-nonsense facts and figures kind of guy. He was an engineer by training. He worked for AT&T and then The Rouse Company as the project manager for large construction projects, e.g. Bayside in Miami, office parks, mall expansions. |
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| Thursday, June 26, 2008 at 9:33:44 mst
Comment ID: #3
Name: Mike Hardy
E-mail: hardy(at)math.umn.edu
OK. I drew that far-fetched inference from the fact that you've mentioned some things about your mother that made me rule out the possibility that she was a lawyer, yet you seemed not to find the use of the word "absent" as a preposition to be weird, as if it were standard English rather than jargon. |
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| Thursday, June 26, 2008 at 10:23:33 mst
Comment ID: #4
Name: Wayne
E-mail: kline7(at)sbcglobal.net
Thanks for a great posting.
I watched them both. Fascinating. As the detective said and any Law and Order viewer knows, the police are allowed to lie to get you to make statements.
In a disputed you said - cop said account, you see the value of a lawyer just as a witness.
But here's my question.
What if the crime is one you want solved personally?
Like if you come home and find your spouse dead. As a spouse, you automatically are a suspect.
What should you do about reporting the crime?
To report the crime, wouldn't you have to talk to the police?
Should you report the crime and, before you make a further statement, insist on a lawyer?
Also what if you are on vacation away from your hometown? Should you hire a lawyer or use a free public defender lawyer? Or if that being penny-wise dollar-foolish? My only experience is watching Law and Order, but the public defenders on TV shows seem generally competent about the basics of giving a statement. Is that right?
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| Thursday, June 26, 2008 at 13:18:59 mst
Comment ID: #5
Name: Nicholas Provenzo
E-mail: nprovenzo(at)capitalismcenter.org
URL: http://www.capitalismcenter.org
Outstanding post, Greg. Thank you for bringing this lecture to light and reminding us of a hard-won right that was secured with patriot blood and that we have every right to assert.
As a public service, I have made a "To all law enforcement officials" card that readers can print out and carry in their wallet as a reminder of what to say when questioned by police. I'm keeping a copy of this card with my driver's license just to ensure that I take no action that would ever incriminate me, innocent or guilty, when confronted by police. This card can be downloaded at:
http://capitalismcenter.org/Advocacy/Civil_liberties/TO_ALL_LAW_ENF ... |
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| Thursday, June 26, 2008 at 14:51:46 mst
Comment ID: #6
Name: Jeff
E-mail: jeff.walker2(at)comcast.net
This just emphasizes an argument that I have with a friend of my daughter's who is now in law school. I believe justice is the goal of the justice system, not getting guilty people off or convicting innocent of unknown and unknowable laws and statutes. I also believe that ignorance of the law should be a perfectly acceptable defense. Lawyers specialize in tax law, criminal law, corporate law, patent law and who knows what else. In any reasonable system, how can a citizen, that also must work and provide for their family, be expected to be able to stay current with bureaucrats whose sole interest is minuteau(sp?) in their specialized field? It appears tricking you into making an innocent mistake is one the goals of the current system.
just my two cents worth. |
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| Thursday, June 26, 2008 at 15:20:41 mst
Comment ID: #7
Name: Qwertz
E-mail: qwertz(at)wopsr.net
URL: http://wopsr.net
This comment should not be read as legal advice by anyone. For legal advice, consult a licensed attorney in your jurisdiction.
Be aware that there is an exception: Jenkins v. Anderson, 447 U.S. 231 (1980) allows pre-arrest silence to be used against a defendant under certain circumstances.
If the defendant takes the stand at trial, the prosecution is entitled to impeach his testimony on cross examination. The prosecutor can attack the credibility of the defendant's testimony by bringing up the fact that the defendant refused to talk to the police when all they wanted to do was ask a few questions. (Wainwright v. Greenfield, 474 U.S. 284 (1986), bars using post-arrest silence to impeach the defendant in this manner, if the defendant invoked his right to remain silent.) Therefore, telling a client to remain silent under all circumstances could be pretty bad advice for a lawyer to give. Lawyers would do best to advise their clients to politely but firmly state that they are exercising their right to not make any statement, as soon as police express an interest in talking. Lawyers who thusly advise their clients will avoid possible pitfalls in the future.
~Q |
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| Thursday, June 26, 2008 at 17:30:18 mst
Comment ID: #8
Name: Mike Hardy
E-mail: hardy(at)math.umn.edu
Qwertz wrote:
> there is an exception: Jenkins v. Anderson,
> 447 U.S. 231 (1980) allows pre-arrest silence
> to be used against a defendant under certain
> circumstances.
That doesn't seem like an exception to 5th-amendment rights at all, since I've always thought those applied to POST-arrest situations, not to PRE-arrest situations. Did I have that wrong? |
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| Thursday, June 26, 2008 at 18:01:47 mst
Comment ID: #9
Name: Qwertz
E-mail: qwertz(at)wopsr.net
URL: http://wopsr.net
Jenkins isn't an exception to the 5th Amendment. 5th Amendment rights apply *all the time*, not just post-arrest. Miranda only requires a warning to be given before any custodial interrogation, but the 5th Amendment right not to make any statement to police applies all the time. Miranda warnings do not mark the beginning of the right.
What Jenkins says is that prosecutors may use the defendant's pre-arrest silence to impeach his trial testimony. From the syllabus:
"Held :
"1. The Fifth Amendment, as applied to the States through the Fourteenth Amendment, is not violated by the use of prearrest silence to impeach a criminal defendant's credibility. While the Fifth Amendment prevents the prosecution from commenting on the silence of a defendant who asserts the right to remain silent during his criminal trial, it is not violated when a defendant who testifies in his own defense is impeached with his prior silence. Impeachment follows the defendant's own decision to cast aside his cloak of silence and advances the truthfinding function of the criminal trial. [cit.]
"2. Nor does the use of prearrest silence to impeach a defendant's credibility deny him the fundamental fairness guaranteed by the Fourteenth Amendment. Common law traditionally has allowed witnesses to be impeached by their previous failure to state a fact in circumstances in which that fact naturally would have been asserted. And each jurisdiction may formulate its own rules of evidence to determine when prior silence is so inconsistent with present statements that impeachment by reference to such silence is probative. In this case, in which no governmental action induced petitioner to remain silent before arrest, Doyle v. Ohio, [cit.], is inapplicable."
My point is: the advice to say *absolutely nothing* to police who come to ask your client a few questions does not do the best job possible at protecting the client's rights. The better lawyer will advise his clients to politely but firmly tell the police, "I am exercising my right to not make any statement." And even better, to add on "Please direct any further questions to my attorney." This puts an absolute halt to any further police attempts to question the client, and bars admission at trial of anything the client said *or didn't say* for any purpose.
~Q |
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| Thursday, June 26, 2008 at 20:49:05 mst
Comment ID: #10
Name: Wayne
E-mail: kline7(at)sbcglobal.net
If you're arrested, you have the right to an attorney. Do you have that right to an attorney if you are just being as a witness questioned by the police? |
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| Thursday, June 26, 2008 at 21:17:15 mst
Comment ID: #11
Name: Qwertz
E-mail: qwertz(at)wopsr.net
URL: http://wopsr.net
That depends on what you mean when you say "right to an attorney."
1) A person may, at any time, choose to be represented or advised by an attorney for any purpose. You can't have an attorney testify in court for you, or swear an affidavit for you, or give a deposition for you, but you may have an attorney advise you on all these things. And obviously you can't have your attorney do illegal things for you, even if you manage to find one who would be willing.
2) Indigent persons in certain kinds of criminal proceedings have a "right" to have an attorney appointed to represent them, at no cost to them. This "right" does not begin with arrest, but with the person's first appearance before a judge or magistrate. An indigent person who cannot afford to hire his own attorney therefore does *not* have a right to have an attorney appointed to represent him during questioning.
The "You have a right to have an attorney present during questioning" you often hear in Miranda warnings refers to the first right. At no time is any person *not allowed* to have an attorney present during questioning. It does not matter if it is a formal, custodial interrogation (where you aren't allowed to leave) or an informal "we just want to ask you a few questions" on the sidewalk.
The "If you cannot afford one, one may be appointed to you by the court at no cost to you" refers to the second "right." If a suspect being questioned in custody says "I would like to consult with an attorney before making any statement, but I cannot afford one," police are obliged to stop questioning, but are not obliged to immediately bring in a court-appointed attorney. Usually, public defenders get appointed at or after arraignment. But if the police "just want to ask you a few questions" on the street, and you say "I would like to consult with an attorney before making any statement, but I cannot afford one," you don't get a free attorney on the county dime. This right vests on arrest, and matures at appearance before a judge or magistrate.
Remember - Miranda doesn't say anything about when these rights begin. It only says when police must inform suspects of their rights. Miranda says police must inform suspects of their rights before beginning any custodial interrogation. If the interrogation is not custodial, no warning need be given. If the person is just being arrested, but not questioned, no warning need be given. Police may even arrest someone, interrogate them, and never give a warning. This doesn't violate the suspect's rights. There is no right to a Miranda warning. But in this last instance, any statements the suspect does make are categorically excluded from trial.
~Q |
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| Thursday, June 26, 2008 at 22:08:45 mst
Comment ID: #12
Name: Adam Reed
E-mail: adamreedatalumdotmitdotedu
URL: http://www.calstatela.edu/faculty/areed2
The fundamental problem with Anglo-Saxon "justice" systems is that they pre-date the Enlightenment, and therefore do not incorporate (except as ad-hoc intrusions)the Enlightenment's discovery of objective factuality, and of arriving at an objective account exclusively from observation and measurement, without depending on intuition, faith etc. Police investigators in Anglo-Saxon systems are not expected, much less required, to be objective. Their work is meant to be used by one side in the contest - by the prosecution - much as the proverbial drunkard uses a lamppost, for support and not illumination. An investigator who honestly strives for objectivity is more likely to be fired for inadequately supporting the prosecution side, than advanced for service to objective justice.
The best alternative that I've found to date is a modified version of the Code Napoleon - itself rooted in the working epistemology of Enlightenment science - used in Switzerland. In the Swiss system, investigators work not for the prosecutors, but rather under the supervision of an investigating magistrate of the judicial branch. The investigators are typically university graduates in the sciences, schooled in objective inquiry, trained to avoid "intuitions" tainted by confirmation bias and other biases, and sworn to seek facts objectively, equally to protect the innocent and to bring the possibly guilty to justice. At the end of the process of investigation, if there is cause to proceed with a trial identical files of evidence are given to the prosecution and the defense. And the system is effective: unlike the US situation, where DNA evidence has shown about 1/6 of convictions for capital crimes to be objectively false, the Swiss routinely preserve and re-examine all evidence, including DNA, and have false conviction rates that are a couple of orders of magnitude lower. And very low rates of crime over-all. |
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| Friday, June 27, 2008 at 1:14:19 mst
Comment ID: #13
Name: Steve
E-mail: skaldor(at)gfschools.org
As one who has been a law student and a defense attorney, I can say that the lectures typify the intellectual climate of law schools. Note that the professor began provocatively: "I am not ashamed to say that I am proud of the fifth amendment!" The context that makes it provocative is that no one in law school takes the constitution seriously. The constitution is a natural law document, and natural law is an anachronism, of no concern to lawyers.
To me, it wasn't provocative. It was stale pragmatism, which, in regard to the constitution, means this: The only worthy aspect of constitutional law is criminal law (because the cause of crime, you know, is poverty, which is a failure of capitalism). What would have been provocative is if the professor had said: "I am not ashamed to say that I am proud of all ten amendments that is our Bill of Rights!" But no respectable professor could say that.
Police officer George Bruch, who, it seems, recently quit the force to go to law school, was even worse. He bemoaned the fact that "there is an unlevel playing field between the police and criminals." And he informed the class that "the police are allowed to lie during an interview." They can even trick criminals into confessions!
My slant on the "truth-finding function" of the judicial system in a free society is this: Support you local police! If there has been a crime and if you are innocent, tell the police everything they need to know to capture and punish the criminal.
The notion that an innocent citizen might be convicted by his honesty is worse than hogwash. It is a mentality that benefits only criminals. |
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| Friday, June 27, 2008 at 10:39:17 mst
Comment ID: #14
Name: Wayne
E-mail: kline7(at)sbcglobal.net
Qwertz, thank you for clearing up when to the right to a court-appointed attorney applies. We have the right to an attorney any time and the entitlement to a free court-appointed attorney at arraignment.
I support the police in fighting crime but if circumstances ever get me into a situation where I'm questioned by police, I will invoke my right to counsel and pay for it.
In the 1980's, I took at Model Mugging class and some private gun instruction from a guy who was a bodyguard. He told me if I ever get into an incident that comes to the attention of the police, no matter how innocent I might be, plan on paying a lawyer a minimum of $10,000. But it'd be money well spent.
Thanks again. |
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| Friday, June 27, 2008 at 10:59:34 mst
Comment ID: #15
Name: Adam Reed
E-mail: adamreedatalumdotmitdotedu
URL: http://www.calstatela.edu/faculty/areed2
Steve: You write, "The notion that an innocent citizen might be convicted by his honesty is worse than hogwash. It is a mentality that benefits only criminals."
With the experience of having survived a politically motivated false prosecution, I would say that your opinion is ungrounded. The typical police officer or prosecutor in the United States is a believing Christian, working from a religious, supernaturalist pseudo-epistemology. Once he has gathered his observations, opinions, wishes of his superiors, political currents and so on, his next step is to pray to Jesus for guidance - and then listen closely to the answer provided by his subconscious intuitions, believing that what he hears is the voice of God responding to his prayer. Then, having been told (by what he takes to be the voice of God in his head) the identity of the culprit, he does whatever he needs to do - lie, spin, anything - to get whomever "God identified as the culprit" convicted.
And yes, we know that in about 1/6 of the cases where DNA testing was applied to available evidence after trial, the convicted "felon" was cleared of guilt by objective evidence of the facts of reality. In several of those cases an innocent citizen had been, in fact, convicted because of his honesty and his honest cooperation. And was deprived of some fraction of his finite life on Earth as a result of talking honestly with the police. |
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| Friday, June 27, 2008 at 15:49:38 mst
Comment ID: #16
Name: Valda Redfern
E-mail: valda.redfern(at)gmail.com
URL: http://valzhalla.blogspot.com
Steve writes:
"To me, it wasn't provocative. It was stale pragmatism, which, in regard to the constitution, means this: The only worthy aspect of constitutional law is criminal law (because the cause of crime, you know, is poverty, which is a failure of capitalism). What would have been provocative is if the professor had said: "I am not ashamed to say that I am proud of all ten amendments that is our Bill of Rights!" But no respectable professor could say that."
What he did say, right at the start, was "God bless America. God bless the Bill of Rights and thank God for the Fifth Amendment." I assume that when he said "God bless the Bill of Rights" he meant all ten amendments, not just the one his lecture was about. I don't see, either, how anyone could infer from Professor Duane's lecture that he was a pragmatist who believed capitalism to be the cause of crime. To me he sounded like a good lawyer who understood how easily two and two can be made to add up to five. |
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| Friday, June 27, 2008 at 20:21:57 mst
Comment ID: #17
Name: Mike Hardy
E-mail: hardy(at)math.umn.edu
"Steve" wrote:
> The notion that an innocent citizen
> might be convicted by his honesty is
> worse than hogwash. It is a mentality
> that benefits only criminals.
Maybe that would be true in a good legal system. So should I take it you think we have a good legal system? How do you answer the specific points raised by the professor; e.g. tell them you were out of town at the time, and then a witness testifies she saw you that night and so you're made to appear to be lying, therefore guilty? And that raised by Adam Reed, who claims the legal system of Switzerland is better than ours? Is it impossible that Adam Reed is right about that? |
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| Friday, June 27, 2008 at 20:21:58 mst
Comment ID: #18
Name: Mike Hardy
E-mail: hardy(at)math.umn.edu
"Steve" wrote:
> The notion that an innocent citizen
> might be convicted by his honesty is
> worse than hogwash. It is a mentality
> that benefits only criminals.
Maybe that would be true in a good legal system. So should I take it you think we have a good legal system? How do you answer the specific points raised by the professor; e.g. tell them you were out of town at the time, and then a witness testifies she saw you that night and so you're made to appear to be lying, therefore guilty? And that raised by Adam Reed, who claims the legal system of Switzerland is better than ours? Is it impossible that Adam Reed is right about that? |
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| Saturday, June 28, 2008 at 0:20:31 mst
Comment ID: #19
Name: Bob Sanders
E-mail: Sanders101(at)clc.net
It seem to me that the welfare state combined with the victimless crime laws and public education have combined to create a near police state climate where there are so many unjust laws that the average citizen will in all probability have contact with an increasingly corrupt police force. The elimination of the victimless crime laws alone would go along way towards ending police corruption. But being that that will not happen the future only looks like more of the same if not worse. |
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| Saturday, June 28, 2008 at 23:17:18 mst
Comment ID: #20
Name: John Dailey
E-mail: phyrm_1(at)hotmail.com
~ It wasn't quite clear whether or not professor Duane included police questions to ostensibly 'mere' witnesses to an alleged crime.
~ If not, then one has to watch for a segue in the question-style?
~ If so, how can police find 'witnesses' who will admit seeing whatever?
LLAP
J:D |
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| Sunday, June 29, 2008 at 20:41:32 mst
Comment ID: #21
Name: Steve
E-mail: skaldor(at)gfschools.org
My problem is the law school ethos that castigates the criminal justice system for failing individual liberty, while, at the same time, promoting the destruction of individual liberty in every other area of law. For example, making a big deal out of the Innocence Protection Act, while championing McCain-Feingold.
Mike wants to know what I think of our legal system. I think its the greatest. Its rules of evidence are a model of objective epistemology. And its reasonable doubt standard makes the conviction of innocent persons improbable, which is why I think Professor Duane's fifth amendment shtick is overwrought.
Now,if what Adam says is true, if DNA testing has proven that one out of six convicted defendants is innocent, my thinking is way off base. Those statistics would mean our criminal justice system is broken. I can only say that to my context of knowledge, they don't ring true. |
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| Monday, June 30, 2008 at 12:07:12 mst
Comment ID: #22
Name: Mike Hardy
E-mail: hardy(at)math.umn.edu
Steve, you're not answering the specific points that were raised. The professor in this video gives examples like these:
Tell the police, truthfully, that you were out of town when the crime happened. Then a witness testifies she saw you in the vicinity that night. Suddenly you look like a liar and hence more likely to be guilty.
Why is the professor wrong about that and the other examples given?
Adam Reed mentions that the police in this country are treated in effect as part of the prosecution's team and therefore owing loyalty to one side and not the other in a criminal case, whereas in Switzerland they are required to have the sort of neutrality that judges are expected to have, and that, Adam says, is as it should be. Why is he wrong about that? |
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| Monday, June 30, 2008 at 16:28:33 mst
Comment ID: #23
Name: Adam Reed
E-mail: adamreedatalumdotmitdotedu
URL: http://www.calstatela.edu/faculty/areed2
Steve,
You are welcome to repeat the statistical analysis for yourself if you think (rather than merely "feel") that the results of mine do not "ring true." Google the web site of the Innocence Project. Count the DNA exonerations in capital cases for verdicts rendered in 1986 - the last year before DNA began to be routinely analyzed before trial, and therefore a suitable statistical sample for the incidence of false convictions that still applies to cases in which DNA is not analyzed before trial - for example because it is not available, still the majority of cases. You can save work by counting such cases for one state, for example Georgia. Then calculate the denominator - the easiest way is to get the percentage of cases where DNA is available for analysis, and multiply by the number of capital convictions in 1986 in that state - I got both figures from the US DOJ website. I doubt that your calculated ratio will differ, unless you make some major error in arithmetic. |
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| Wednesday, July 2, 2008 at 10:43:47 mst
Comment ID: #24
Name: Steve
E-mail: skaldor(at)gfschools.org
Mike, your scenario will not make you "look like a liar and hence more likely to be guilty" if you keep in mind the context of a prosecutor's burden of proof. Because he can't drop the full context of his charge, a prosecutor will not arbitrarily accept the testimony of one "witness" over another.
I can't answer your second question because I'm not familiar with Switzerland's legal system.
Adam, the DNA and wrongful conviction issue is not only arithmetical, but also epistemological. Indeed, it's a rat's nest of epistemological problems, not the least of which is defining "exonerated," "innocent," and "proven" in their full juridical context to prevent equivocation.
Its a hard issue. |
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| Tuesday, July 29, 2008 at 18:23:27 mst
Comment ID: #25
Name: Mike
E-mail: spiritdog342(at)gmail.com
I'm not an Attorney, a Philosopher, nor directly involved in Law Enforcement. I've retired from the profession of arms and like to believe I still have a little of what we called "walkin' around sense" where I grew up. So I'm curious about what happemed to the discussion by the Police Officer, George Brusch. His comments are referred to in some of the posts above, and I would be interested in hearing them. Regrettably, the video (by the time it was sent to me) ended as Professor Duane left the podium. Can someone direct me to Brusch's comments?
For layman who still shoots tactical matches. keeps up with my training and has a valid CCW permit in my state, I find these discussions to be both interesting and of critical importance. If someone is forced to defend his life, or the lives of those under his immedate care through lethal force, this issue should be well studied. He should at least have someone very competent whom he knows will represent him, and his responses to the police who arrive at the scene will have to be carefully considered. He would need to know what to say and what to do, particularly if the situation requires him to still be armed when the police arrive, so as not to be confused with the attacker.
This is a good lecture. If anybody knows where I can find the other half of it, please advise. |
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| Tuesday, July 29, 2008 at 18:27:13 mst
Comment ID: #26
Name: Mike Wallace
E-mail: spiritdog42(at)gmail.com
Regret the extra keystroke in my email address. Would appreciate hearing from anybody (off Post is fine) who can lead me to the comments of Officer George Bruch! |
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| Wednesday, July 30, 2008 at 5:10:40 mst
Comment ID: #27
Name: Paul Hsieh
E-mail: paul(at)geekpress(dot)com
URL: http://www.geekpress.com
For the 2nd video with officer George Bruch, try this:
http://video.google.com/videoplay?docid=6014022229458915912 |
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