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Nonexistence posted:It's always surprising to me how many attorneys have to actually convince themselves they're right. If one side isn't bullshitting there's usually an honest open question as to the law or a critical fact that reasonable minds could disagree on, but rather than just say "oh ok I'll just paint this in the light most favorable to my client because that's my job," some attorneys honestly must convince themselves that they are objectively right and any other position is obviously wrong, and I'm not talking about just grandstanding to others like that's the case. Like just play the hand you're dealt, there's no need for the cognitive dissonance that your pair of 7s is a royal flush. It makes perfect sense, because you're more believable if you appear to believe in your position. Also, cognitive dissonance means you tend to start believing what you say, even if you knew it was bullshit to begin with.
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Jul 10, 2018 20:45
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How are you going to zealously advocate if you don't willfully lie nonstop It's not like there's ever any real punishment for it
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Jul 10, 2018 20:48
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ActusRhesus posted:Nah. Nothing that over the top. I actually like that lawyer. He’s not a bad guy. Reasonable to work with. Just always really off on his law. I suspect he’s a “headnotes” reader. The go-to move for guys here is to cite some appellate case on the general subject they argued 40 years ago (not always in court but usually to try to convince me to do whatever it is they want) but it’s never ever on point.
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Jul 10, 2018 21:16
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I’ve been practicing for 30 years and I’ve never heard of [the basic principle you are advocating]
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Jul 10, 2018 21:25
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Discendo Vox fucked around with this message at 04:08 on Jul 13, 2021 |
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Jul 10, 2018 21:57
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mastershakeman posted:How are you going to zealously advocate if you don't willfully lie nonstop Especially when the alternative is to do research. And work.
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Jul 10, 2018 21:58
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I had an attorney's secretary call me the other day to argue about the terms of the court's scheduling order. 1. It's the court's order, it's signed by the judge, I don't know what you think yelling at me will accomplish. 2. You can keep telling me "I've been doing this for 19 years and never seen an order like this," but I'm not impressed and also, see #1.
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Jul 10, 2018 22:28
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yronic heroism posted:The go-to move for guys here is to cite some appellate case on the general subject they argued 40 years ago (not always in court but usually to try to convince me to do whatever it is they want) but it’s never ever on point. In this case it was whether or not a person can be in custody in their own home for purposes of Miranda. There is a case where the police conduct was so egregious that the court said “under these facts...yes” (and rightly so.) he took that to mean that any questioning with police in a home = custody. Ignoring that the court laid out a 9 factor test... later applied that test in my case (and others) and said “nope. Not custody.” The only factor that went in their favor was “did the police have guns” (Bc duh). The follow on factor “were they brandished or displayed?” Went in my favor. Plain clothes detective with a concealed service weapon. Never visible. Alaemon posted:I had an attorney's secretary call me the other day to argue about the terms of the court's scheduling order. My favorite firm: “the clerk’s office said I didn’t have to follow the scheduling order” Judge: the clerk does not trump the practice book. Or me. Clerk: *dirty look at counsel.* (I’m pretty sure that’s not what they said. And bold move, cityon, pudding off the clerks.)
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Jul 11, 2018 01:50
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ActusRhesus posted:In this case it was whether or not a person can be in custody in their own home for purposes of Miranda. There is a case where the police conduct was so egregious that the court said “under these facts...yes” (and rightly so.) he took that to mean that any questioning with police in a home = custody. Ignoring that the court laid out a 9 factor test... later applied that test in my case (and others) and said “nope. Not custody.” The only factor that went in their favor was “did the police have guns” (Bc duh). The follow on factor “were they brandished or displayed?” Went in my favor. Plain clothes detective with a concealed service weapon. Never visible. If you're a criminal litigator, you should NEVER get on the clerks' bad side. gently caress I can't imagine how difficult a defense attorney's job could get if you can't ask the clerks for "favors" they normally aren't obligated to do.
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Jul 11, 2018 02:55
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I certainly don't think I'm a big fish in any sized pond. (I'm more like a remora, attached to the biggest fish in the pond.) But in the theme of "don't irk the clerk," it always baffles me when attorneys decide that hostility is the best approach to take with me. After you get done cursing at me, you know I go DIRECTLY to the judge's office, right? First stop. I have no compunctions about being a tattle-tale. I think maybe people think because of my position I'm a tiny little baby out of law school and can be intimidated. Instead I'm an embittered, entrenched career bureaucrat, and I'm not scared of you despite the fact that your hourly rate is 15 times mine. (Sir Humphrey Appelby is my personal role model, and should be for all intelligent public servants.)
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Jul 11, 2018 03:16
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apparently in autocorrect pissing = pudding. wtf. though my favorite autocorrect is still Rapunzel = rapey zeal. and cotton = ciyton. seriously. wtf.
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Jul 11, 2018 12:49
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ActusRhesus posted:In this case it was whether or not a person can be in custody in their own home for purposes of Miranda. There is a case where the police conduct was so egregious that the court said “under these facts...yes” (and rightly so.) he took that to mean that any questioning with police in a home = custody. Ignoring that the court laid out a 9 factor test... later applied that test in my case (and others) and said “nope. Not custody.” The only factor that went in their favor was “did the police have guns” (Bc duh). The follow on factor “were they brandished or displayed?” Went in my favor. Plain clothes detective with a concealed service weapon. Never visible. That's interesting. If you don't mind, I just have to ask: Do you need to be in custody for a Miranda warning requirement to apply? That seems odd to me. Seems to me like that would be attached to the matter and definition of a "questioning".
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Jul 11, 2018 13:03
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If a person is in custody, miranda applies. To be in custody, the person must be actually detained to the point a reasonable person would not feel free to leave.
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Jul 11, 2018 13:09
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Mr. Nice! posted:If a person is in custody, miranda applies. To be in custody, the person must be actually detained to the point a reasonable person would not feel free to leave. So in the US, law enforcement is under no obligation to inform about rights and such if you're merely being questioned without some form of detaining going on, regardless whether or not you're an actual suspect? hosed up if true.
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Jul 11, 2018 13:29
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Of course, if I think about that's basically the same as over here with some minor exceptions if we're speaking in practical terms. In theory any questioning of any suspect is supposed to start with the police notifying of suspicion and then our Miranda-equivalent, but in real terms that never gets followed and we have
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Jul 11, 2018 13:46
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Nice piece of fish posted:So in the US, law enforcement is under no obligation to inform about rights and such if you're merely being questioned without some form of detaining going on, regardless whether or not you're an actual suspect? hosed up if true. Hence the mantra of the freeman-on-the-land in all interactions with law enforcement: Am I being detained? Am I being detained? Am I being detained? Am I being detained? Am I being detained?
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Jul 11, 2018 13:48
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Phil Moscowitz posted:Hence the mantra of the freeman-on-the-land in all interactions with law enforcement: I'm so happy these folks are very rare over here.
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Jul 11, 2018 13:51
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Nice piece of fish posted:I'm so happy these folks are very rare over here. It's honestly pretty funny because of cops willfully playing around with not mirandizing but also refusing to let people leave
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Jul 11, 2018 14:06
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Nice piece of fish posted:So in the US, law enforcement is under no obligation to inform about rights and such if you're merely being questioned without some form of detaining going on, regardless whether or not you're an actual suspect? hosed up if true. The same is in Russia, in a theoretical situation where you have been detained for an actual offense (and it's purely theoretical, because the law enforcement will use large amounts of electricity to get what they want anyway), the burden is upon the detainee to know his rights
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Jul 11, 2018 14:30
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Nice piece of fish posted:So in the US, law enforcement is under no obligation to inform about rights and such if you're merely being questioned without some form of detaining going on, regardless whether or not you're an actual suspect? hosed up if true. It's true.
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Jul 11, 2018 14:49
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Alexeythegreat posted:The same is in Russia, in a theoretical situation where you have been detained for an actual offense (and it's purely theoretical, because the law enforcement will use large amounts of electricity to get what they want anyway), the burden is upon the detainee to know his rights Want to hear something hosed up? Russia is like a, maybe not favourite, but pretty common vacation goal for norwegians (let's face it, you have cheap and decent food and booze). Guy went over there recently, beat his wife so bad she ended up in the hospital, came back home and police couldn't prosecute the fucker because... it happened in Russia. And in Russia, you get to beat your spouse once for free! Since the norwegian penal code only allows you to prosecute criminal acts that are illegal both in Norway and in [country in question], the guy walks. Frankly, my opinion is that this is a failiure of the legislature to predict hosed up laws in other countries and a failiure to follow the state's positive obligation to prosecute after ECHR art. 3 from the more dynamic interpretation of preventative duty from latter years Court practice. I would have loved to sue the state over this poo poo. Probably would have lost but gently caress if it isn't wrong.
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Jul 11, 2018 14:49
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Nice piece of fish posted:Want to hear something hosed up? Russia is like a, maybe not favourite, but pretty common vacation goal for norwegians (let's face it, you have cheap and decent food and booze). Guy went over there recently, beat his wife so bad she ended up in the hospital, came back home and police couldn't prosecute the fucker because... it happened in Russia. And in Russia, you get to beat your spouse once for free! I don't know, I see a lot of people from Sweden, Finland, Germany, France, Italy, Latin America, China. I don't think I've seen a single Norwegian here in St. Petersburg The most beautiful thing here is that the first act of beat up your wife got decriminalized only, like, last year. "We must ensure family integrity". In reality it ended up being less free than before. Previously, the police would just ignore domestic violence, because they didn't want to go through the hassle of investigating a criminal case for something like that. Now that it's a minor administrative offence, the "punishment" is duked out more frequently. Of course, this was never the intended effect and it's just a full circle of hosed up at best I'm waiting for this to get to the ECHR and then for nothing to happen upon the ECHR judgment nutri_void fucked around with this message at 14:55 on Jul 11, 2018 |
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Jul 11, 2018 14:52
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Nice piece of fish posted:So in the US, law enforcement is under no obligation to inform about rights and such if you're merely being questioned without some form of detaining going on, regardless whether or not you're an actual suspect? hosed up if true. it makes sense in the abstract: the police shouldn't need to read people their rights when they're interviewing witnesses who nobody suspects at the time. further, it is important that there be some sort of notification when things have progressed from "you were around, what did you see?" to "we think you did it and you're not free to leave" the problem, of course, comes in the grey area between the two and naturally the police are happy to push the envelope and courts have been largely happy to let them
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Jul 11, 2018 15:03
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Nice piece of fish posted:Want to hear something hosed up? Russia is like a, maybe not favourite, but pretty common vacation goal for norwegians (let's face it, you have cheap and decent food and booze). Guy went over there recently, beat his wife so bad she ended up in the hospital, came back home and police couldn't prosecute the fucker because... it happened in Russia. And in Russia, you get to beat your spouse once for free! i can see how you would reason yourself into such a law, not wanting to criminalize (to use a us-centric example) a 19 year old who drinks on vacation abroad, or someone who smokes pot in amsterdam. but it seems pretty basic to exclude crimes where there is a victim and that victim is also one of your citizens.
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Jul 11, 2018 15:06
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I took a cruise from Stockholm to St Petersburg because it came with a 2 day visa to explore the city, and almost everyone on the boat was Russian
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Jul 11, 2018 15:11
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Nice piece of fish posted:So in the US, law enforcement is under no obligation to inform about rights and such if you're merely being questioned without some form of detaining going on, regardless whether or not you're an actual suspect? hosed up if true. A few people have chimed in, but yes, this is absolutely correct. Police will push aggressively with questioning to coerce a statement outside of Miranda that they can then use to arrest you on. Unfortunately, sometimes even remaining quiet or politely asking to be allowed to leave will result in further delays and likely arrest anyways. Nothing negative will happen to the officer most of the time. This situation is made worse by the darker the color of your skin. Further, only government officials or their agents are required to let you know your rights as a part of a custodial interrogation. Paid jail informants are often not held to be government agents and are a large source of convictions from "confessions" or other statements given by the accused to the informant. We have an extremely divided criminal justice system. There's the wealthy system, where regardless of color you can get away with most anything, then in the poor system you can get away with plenty of things if you're white and if you're brown/black you'll get the book thrown at you.
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Jul 11, 2018 15:39
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Nice piece of fish posted:So in the US, law enforcement is under no obligation to inform about rights and such if you're merely being questioned without some form of detaining going on, regardless whether or not you're an actual suspect? hosed up if true. Not really. The fifth amendment protects compulsory self-incrimination, not voluntarily being a dumbass and incriminating yourself. The police detention environment is inherently coercive. Hence the reminder that they don’t need to talk. Same as reminding a witness about their right to plead the fifth, as a court of law is also inherently coercive. Confirm it’s voluntary. If a reasonable person does not believe they are detained and are free to leave/ask the police to leave, then it’s presumed the statements are voluntary. And looks like our poison tree doctrine is a little stronger. If a court finds you were for all intents and purposes confined and no warning was given, statement is out. Full stop. Unless they do something dumb and open the door to it at trial.
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Jul 11, 2018 15:41
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Here there is a specific jury instruction on jailhouse informants that is very favorable to the defense.
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Jul 11, 2018 15:43
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ActusRhesus posted:Not really. The fifth amendment protects compulsory self-incrimination, not voluntarily being a dumbass and incriminating yourself. The police detention environment is inherently coercive. Hence the reminder that they don’t need to talk. Same as reminding a witness about their right to plead the fifth, as a court of law is also inherently coercive. Confirm it’s voluntary. If a reasonable person does not believe they are detained and are free to leave/ask the police to leave, then it’s presumed the statements are voluntary. And looks like our poison tree doctrine is a little stronger. If a court finds you were for all intents and purposes confined and no warning was given, statement is out. Full stop. Unless they do something dumb and open the door to it at trial. I bolded the problem part of your statement. The onus should not be on the person suddenly being interrogated by police, especially following a traumatic event or injury, to ask police if they're being detained for questioning. Simply walking away from police when they're talking to you at best gets you yelled at and at worst gets you shot in the back. The fact that 5th & 6th amendment rights are opt-in instead of opt-out is a major problem.
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Jul 11, 2018 15:43
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And circling back around, the sov cits bleating "am I being detained" on video never get an answer but are always screamed at the second they try to move
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Jul 11, 2018 15:46
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From a purely theoretical standpoint, the reasonable person standard is not a bad one. In practice, no one is ever free to go. Police will hold onto people as long as possible under any bullshit pretext because they know they'll get away with it.
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Jul 11, 2018 15:53
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Mr. Nice! posted:I bolded the problem part of your statement. The onus should not be on the person suddenly being interrogated by police, especially following a traumatic event or injury, to ask police if they're being detained for questioning. Simply walking away from police when they're talking to you at best gets you yelled at and at worst gets you shot in the back. So maybe petition to have that law changed rather than calling the cops assholes for following the law? Btw... a person actually experiencing trauma or injury would have a very compelling argument that their statement was not knowing intelligent and voluntary. Which is the actual constitutional right. “I was detained and not mirandized” is only one of many ways to claim a statement was not voluntary.
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Jul 11, 2018 15:55
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Sounds like you guys LOVE CRIMINALS and HATE OUR FIRST RESPONDERS
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Jul 11, 2018 15:57
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SAD!!
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Jul 11, 2018 15:57
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ActusRhesus posted:So maybe petition to have that law changed rather than calling the cops assholes for following the law? Btw... a person actually experiencing trauma or injury would have a very compelling argument that their statement was not knowing intelligent and voluntary. Which is the actual constitutional right. “I was detained and not mirandized” is only one of many ways to claim a statement was not voluntary. There's no good reason for the 5th and 6th to be opt-in instead of out like the rest of the amendments. You don't suddenly lose your 2nd amendment rights because you don't own a gun or expressly state you want to exercise said rights. This only happens with rights that involve policing, and that's not good policy because of the practical effects and because it is inconsistent with the rest of the enumerated constitutional rights. There is no situation where a police should be talking to someone without informing them of their rights first.
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Jul 11, 2018 16:00
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I'm guessing multiple negative personal interactions with cops color my view as well as others Speaking of crimlaw, that friend of mine just started some 1L classes early (she's doing night school). She couldn't give me much of an answer but I'm wondering how much more heated crimlaw and crimpro are now than they were back when I took them. For instantce, we learned the Bernie goetz case, which I assume would make people super angry in this day and age. Same with conlaw. Are emotions running higher than ever in class now?
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Jul 11, 2018 16:03
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Most of the sovcit videos I’ve seen they are told they’re detained or it’s extremely obvious. For them in particular, that knowledge never shuts them up b/c it’s just a magic phrase they know to say before the next step in the incantation where they don’t consent to joinder.
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Jul 11, 2018 16:05
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yronic heroism posted:Most of the sovcit videos I’ve seen they are told they’re detained or it’s extremely obvious. For them in particular, that knowledge never shuts them up b/c it’s just a magic phrase they know to say before the next step in the incantation where they don’t consent to joinder. Here's an example where it works. Note that this isn't a sovcit, but rather people dealing with inland homeland security checkpoints. https://www.youtube.com/watch?v=eUHfyPylVL8
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Jul 11, 2018 16:06
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The bill of rights speaks to restrictions on government action. This is no different. The government can’t force you to talk. If you voluntarily choose to that’s on you. Miranda only exists because of the inherently coercive environment. There’s a need, in that case, to go above and beyond, and make sure the statement is voluntary. There’s no need to remind people in an environment that is not inherently coercive. Custody for purposes of Miranda means any environment where police presence so dominated the environment that it created a coercive impact on the speaker. Hell. Even someone mirandized can still be found to have given their statement involuntarily. Let me give you a fact pattern. Two plainclothes detectives call an affluent white defendant. Ask if she’d return to the station for an interview. She’s 19. Her mom asks if the police would come to their home, in another state, instead. Mom answers the door. Both officers are in plain clothes with weapons concealed. Both parents are present in the home the entire time. Questioning is in a pretty Gucci living room area. Neither cop makes any threats or raises his voice. Questioning is about 30 min arrival to departure. Would you suppress that statement?
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Jul 11, 2018 16:14
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I think even in that situation if they had not told the woman that any statement can be used against them, then yes, probably so. Any interaction with police is necessarily coercive because of the power they wield. Additionally, no one is really taught that they have these rights and should proactively use them. If people were actually educated about voluntary vs custodial interactions with police, the ideal world you want might be possible.
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Jul 11, 2018 16:19
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