Scalia illogically wants it both ways.
"'The considerable adverse effect of this rule upon society's ability to
solve crimes and bring criminals to justice far outweighs its capacity
to prevent a genuinely coerced agreement to speak without counsel
present,'' Scalia said." as quoted in NYT
The original rule in Michigan v. Jackson did not allow the police to question an individual who had or who had asked for a lawyer. There were several effects of this rule: it protected the accused against coercion because any 'evidence' obtained without access to counsel did not count so the police were not tempted to 'genuinely coerce', it protected the right to counsel by negating the impulse of an individual unaware of his rights to cooperate with the authorities.
Getting a confession from an ill educated defendant is analogous to tricking candy from a baby and both are genuinely coercive.
The only reason that denying a defendant access to counsel is the hope that the defendant will provide more information in the absence of counsel -- and Justice Scalia implicitly acknowledges that this is so:the rule providing for the presence of counsel has a "considerable adverse effect of this rule on society's ability to solve crimes and bring criminals to justice."
If the accused's participation in self-incrimination is voluntary and not produced by a lack of knowledge of his rights ( and taking actions against an accused before he has advice from counsel deprives him of the most meaningful access to counsel), waiting for counsel will not matter -- the accused will make his statement despite the advice from counsel.
What Scalia and the majority have established is that it is once again held just and proper for the police to operate by tricking the weak and/or ignorant.
You cannot argue at one and the same time that Scalia's rule allows society to catch more criminals (on the basis of self-incrimination) and does not hurt the rights of criminals.
The original rule in Michigan v. Jackson did not allow the police to question an individual who had or who had asked for a lawyer. There were several effects of this rule: it protected the accused against coercion because any 'evidence' obtained without access to counsel did not count so the police were not tempted to 'genuinely coerce', it protected the right to counsel by negating the impulse of an individual unaware of his rights to cooperate with the authorities.
Getting a confession from an ill educated defendant is analogous to tricking candy from a baby and both are genuinely coercive.
The only reason that denying a defendant access to counsel is the hope that the defendant will provide more information in the absence of counsel -- and Justice Scalia implicitly acknowledges that this is so:the rule providing for the presence of counsel has a "considerable adverse effect of this rule on society's ability to solve crimes and bring criminals to justice."
If the accused's participation in self-incrimination is voluntary and not produced by a lack of knowledge of his rights ( and taking actions against an accused before he has advice from counsel deprives him of the most meaningful access to counsel), waiting for counsel will not matter -- the accused will make his statement despite the advice from counsel.
What Scalia and the majority have established is that it is once again held just and proper for the police to operate by tricking the weak and/or ignorant.
You cannot argue at one and the same time that Scalia's rule allows society to catch more criminals (on the basis of self-incrimination) and does not hurt the rights of criminals.
Advertisement
There is a difference between seduction and coercion.
Something we should not lose sight of:
There are suspects who are innocent of, and suspects who have committed, the crime of interest.
Tricking the former into making statements which implicate them and then using that to hold or prosecute them should be considered a criminal offense on the part of the police and prosecution.
Tricking the latter ... how is this a bad thing? I'm not saying the cops know at the time whether the suspect committed the crime or didn't.
May 26, 2009 5:06 PM | Reply | Permalink
Tricking the former into making statements which implicate them and then using that to hold or prosecute them should be considered a criminal offense on the part of the police and prosecution.
Tricking the latter ... how is this a bad thing? I'm not saying the cops know at the time whether the suspect committed the crime or didn't.
Strictly speaking, there is no practical problem with getting a coerced confession out of a guilty person (provided that the method of coercion was not in and of itself immoral, e.g. torture), or with finding evidence that truly proves a person gilty through an illegal search. Ultimately, the goal of procedural rights is the protection of the innocent, not the guilty; the protection of the guilty is merely a side effect.
The problem is, that there is no way to protect the truly innocent without also protecting the guilty.
I'll repeat that: The problem is, that there is no way to protect the truly innocent without also protecting the truly guilty.
The problem with methods that enforce legal rights in a post hoc manner (e.g. allow illegally obtained confessions to be heard, but prosecuting the police if the confessions are false; allowing illegally obtained evidence in but allowing the police to be prosecuted if the person is innocent) is that this commits a policeman who has committed an illegal act to having to prove the suspect guilty so as to avoid prosecution.
That is, if you do an illegal search and the person is innocent, you immediately incentivize the police to frame the guy for something so that they can avoid prosecution.
In essence, our method of enforcement is to say that if it is not allowed to happen, then legally, it did not happen and cannot be submitted as evidence. This is probably the best way, short of time travel, to enforce procedural rights.
May 27, 2009 12:16 AM | Reply | Permalink
That doesn't make much sense.
"I'll repeat that: The problem is, that there is no way to protect the truly innocent without also protecting the truly guilty."
That's just wrong.
"allow illegally obtained confessions to be heard..."
I don't believe that's the topic here.
May 28, 2009 5:21 AM | Reply | Permalink
It helps if you have followed any of the history of false confessions that have been induced in fairly dramatic ways. I think it was the Atlantic that did a piece quite sometime back.
My point was that if the conversation with the police was indeed intended and voluntary it would continue after a lawyer was present.
Tricking the latter is a bad thing when it lowers the standards by which our government acts, when it leads to cutting corners and declaring people bad guys so they can be tortured or held indefinitely and when it lowers the standards of the police -- we believe he is guilty so we'll trick him -- so that they in fact commit crimes against the innocent.
It also increases the inequality in society in that the well-educated or criminally sophisticated will not make that type of error while the uneducated and the weak will -- do you really want a system in which it is easier to convict the uneducated than the educated?
Look how the death penalty gets distributed -- largely to complete losers like this guy -- not to the murderers who hire a fancy lawyer.
May 26, 2009 10:49 PM | Reply | Permalink
adverse effect of this rule
In case our lay colleagues were wondering what John Yoo meant when he denigrated "results oriented" judging, this is it.
Scalia wants his reasoning to come out with permission to coerce and deceive, and so he twists established definitions to create an exception to the 4th amendment rule such that even when the procedural safeguards have been ignored, giving rise in the first place to the possibility of an allegation of coercion(ie, the statement was made in the absence of counsel), it is only the "genuinely coerced" confession that we need worry about, thus producing the result he wanted in the first place--the admission of otherwise tainted evidence. In point of fact, there is no such clear boundary line between the "possibly coerced" and the "genuinely coerced" confession occuring in the absence of counsel. There is (or should be) a presumption of coercion (which may be overcome by a videotape of the perp calmly and in the absence of stress or intoxication, or mental illness, waiving his rights.)
May 27, 2009 3:07 AM | Reply | Permalink