Shouldn’t it be the default and not require the suspect/subject to actually ask for one? Has there ever been any attempt to make that the norm in any countries? I think the only question should be “do you have your own lawyer you like to use, or are you happy enough with the court-appointed one?”
I’m not even sure opting out should be allowed, but I’m open to hearing reasons why that would be a bad system, or indeed a worse system than the one most countries seem to have now. So many miscarriages of justice could have been easily avoided.
Because the purpose of law enforcement is oppression.
TV shows and propaganda in the US have for decades shown you that " if you have nothing to hide then you don’t need a lawyer" and unfortunately that is demonstrably false. Police are expert interrogators and you alone have a very low chance of getting anything across clearly and without incriminating yourself further. Just shut the fuck up and ask for a lawyer.
And now with for profit prisons it makes sense to get you in jail rather than help you know your rights and protect you.
Cops can never be wrong and even when they are they’re not and they’re not going to face any consequences by doing shit to you. ACAB til the end of the world.
Im not sure I’d call cops expert interrogators, it’s more like they’re playing with a stacked deck.
they will try all sorts “interrogation tactics” to get you to confess without a lawyer. some are bordering or even enhanced “interrogation tactics”
Also the fact that they don’t give a fuck about your rights, just their numbers or their own form of personal punishment against you.
They also don’t give a fuck about actually catching who did it. They just want someone to pin the crime on, so they can get the case off their desk. They don’t care if you’re innocent, as long as pinning it on you allows them to close the case.
This too.
In the US it’s because our cops are incompetent and having a lawyer in the room makes it “too hard” to do an investigation.
In the US, the only answer you should ever give a cop without a lawyer present is “I don’t answer questions without a lawyer present.”
And when they lie to you and try to tell you that you have to answer… don’t believe them. They’re legally allowed to lie to you.
Because conviction rates would drop by like 40% overnight thats why.
The slavery business can’t afford that slowdown right now.
We live in hell. This is hell. The bad place. Hades. Tartarus. The Underworld. Etc.
For-profit prisons is a farce against humanity.
Lawyer here! Would just like to say that this is aggressively accurate—Tartarus reference and all.
I can’t imagine how you guys keep it together day-to-day with institutions burning down around you. You’ve got a much closer lens than most. And that much deeper of an insight into just how fucked shit really is.
Mienshao is not only good at martial arts but the practice of law, too? Impressive
Wrong. In hell there are only those that deserve it. Not bystanders and innocents.
Hawkeye: War isn’t Hell. War is war, and Hell is Hell. And of the two, war is a lot worse.
Father Mulcahy: How do you figure, Hawkeye?
Hawkeye: Easy, Father. Tell me, who goes to Hell?
Father Mulcahy: Sinners, I believe.
Hawkeye: Exactly. There are no innocent bystanders in Hell. War is chock full of them - little kids, cripples, old ladies. In fact, except for some of the brass, almost everybody involved is an innocent bystander.
Took me a second, was wondering if said this to captain america or iron man.
Really depends on your favorite flavor of spiritual koolaid here.
Some say you’ll burn forever if you’ve merely heard the word of God and not accepted it, others say you’ll burn regardless of if you had the opportunity to receive the word or not.
Some even say nobody ends up in hell forever and everyone gets saved eventually.
Just pick your favorite and let everyone else pick theirs.
Not according to the gnostic gospels.
The US supreme Court has decided that remaining silent isn’t actually asserting your fifth amendment right to remain silent. You need to actually affirm it. Nobody’s even pretending there’s logic to this shit. https://en.m.wikipedia.org/wiki/Salinas_v._Texas
Important safety tip.
Thanks, Ray.
The fact that in some instances the legal system does work according to the invocation of a magic phrase makes it so much harder to deal with the delusions of sovcits. The right to remain silent should be just that. You don’t have to say “I’m invoking my right to free speech” every time before opening your mouth for it to count.
That’s the trick. An example is the am I being detained thing. A clock of reasonableness starts ticking as soon as you’re detained until the detention is considered a potentially unlawful arrest, but that detention doesn’t start until the officer tells you you can’t leave. Also a cop has to have a valid reason to detain you or anything you say will be inadmissible in court. Until you ask that magic phrase, though, you’re having a consensual encounter and everything you say(or not say) will always be admissible.
In Vega v. Tekoh, the U.S. Supreme Court held, in part, that the jury could not be required to find Tekoh’s Fifth Amendment rights were violated because Miranda warnings are not rights but rather judicially crafted rules, which opens the door for overruling Miranda altogether.
The Vega decision will have a stronger impact on young defendants, the intellectually disabled, racial minorities, immigrants, and anyone unfamiliar with the criminal justice system and more prone to coercion.
And this was in 2014.
Imagine being Mahmoud Khalil right now and talking about the Fifth Amendment. You’re lucky if you can invoke the Suspension Clause.
Lol
Come on, you know the answer
I was listening to a podcast about a Danish murder investigation that included an interview by Danish police of a prisoner suspect in Finland in cooperation with the Finns. They went ahead with the interview without the lawyer present, which seemed normal to the Danes and wrong to their Finnish colleagues. It was one of the reasons why the content of the interview was inadmissible on court. That’s the first thing I thought about regarding a lawyer opt-out.
As a fan of the Nordic Noir genre of crime shows, it’s a great booster for extras. Whenever a person of interest has become an actual suspect, there will be a lawyer present in the show. In 99% of the cases it’s an extra without any lines. So there appears to be a legal requirement to have a lawyer present or the interview cannot or should not proceed.
I think in general it is a hard thing to operate under a system where a lawyer must be present for any interview. There may not be enough lawyers to man every police interview with opt-out rules. They require remuneration as well. This may explain why the rules are so fishy. Case law is caught between not hanstringing police investigations with an opt-out system on the one hand and preventing overreach and abuse by the cops on the other.
Just as a thought experiment: if you required a lawyer being present for any interview at the station, apart from finding a way to pay these poor lawyers you’d also have to come up with a system where enough lawyers are readily available to sit in. Kind of like not all Parisian bakers can go on holiday at the same time. What if there aren’t enough lawyers in your hamlet? Do we maybe need to create a hired function to satisfy the legal requirements? An office in the police station where a lawyer or a rotation of usual suspects of lawyers serve? Wouldn’t this create a proximity where lawyers and cops become too chummy and possibly collude? The interests of the interviewee are best served by cops and lawyers hating each other’s guts but working alongside they’ve become pals. I think there may be an unintended consequence that the course of justice gets more perverted by the opt-out systen than in the current fishy US system.
I am not a lawyer. (IANAL)
You have a lot of legal right you may or may not choose to exercise. For example, if you have the right to own firearms they don’t issue you a firearm just because you haven’t purchased one yet.
If I recall it right, there wasn’t always the concept of a public defender who could represent someone even if they couldn’t afford a lawyer. You had to already have a lawyer in order to even use that right. This was eventually changed and resulted in the creation of public defenders.
From what I have heard, public defenders are really overworked and spread thin, so you may want to have a lawyer setup to represent you if you ever get into trouble with the law. I have also heard it’s good to know several lawyers as the one who can help you draft a will is different than the one to help you purchase real estate and the one to keep you out of jail.
Also, you are not guaranteed a free lawyer. To be appointed a public defender you have to apply for one and prove your income; over a certain amount and you’re expected to hire your own lawyer.
The court can’t deny you access to a lawyer, but they don’t have to give you one if you can afford your own.
Here in the USA, we have numerous substantive and procedural criticisms of the legal system, and while IANAL, the latter is of particular interest to me and is the domain of your questions. I will try to address each in turn, since they kinda build upon each other.
Shouldn’t [providing a lawyer] be the default and not require the suspect/subject to actually ask for one?
To get to the answer, we need to step back and examine what the exact obligation is. In the USA, the specific right in question is the individual’s right to choose legal counsel. That is, a person has the final authority as to who will represent and advise them in legal proceedings. This right isn’t unlimited though, and it doesn’t mean that they ought to be represented by a specific lawyer for free. But rather, the right means that no one else can make that decision on that person’s behalf.
But in the Anglo-American formulation of what a right is, it is also an obligation upon everyone else. Specifically, the government is obligated to not interfere with a person’s free choice of lawyer. This was poignantly and recently examined by the federal court in DC, as it pertains to the executive’s attacks on the law firm Perkins Coie, where the federal judge ripped the government for interference with due process rights, from which the right to choice of lawyer comes from.
But there’s a wrinkle with rights: if the liberty it affords is the ability to choose, how would choosing nothing be handled? That is, if a person wishes to not choose, how can they affirmatively decline to choose? There are – and it’s a foolhardy exercise – criminal defendants in the USA that plainly choose to represent themselves in court, not wanting a lawyer to aid them. The general rule for a “unilateral” right such as this one is that it is “optional”, where affirmative actions are needed to involve the right, otherwise the default is that the right isn’t invoked.
And that sits fairly well in the breath of rights that civilians enjoy, such as the right to travel the public lands (eg walking or riding a bicycle on the street) to the First Amendment’s right to petition the government. After all, no one from the govt is phoning people up every day to ask “do you wish to unicycle on Main St today?” or “would you like to comment on the city budget next Tuesday?”. More clearly, those rights are fairly obvious when they wish to be used, or when they don’t wish to be used. (Though I grant you that the latter implicates a right to notification, but that’s a whole different matter)
The system of rights gets even more complicated when someone holds two opposing rights. For example, in the USA, everyone has both the right to free speech, plus the right to silence. In that case, it absolutely forces the matter, because the absence of speech is very much a matter than can be criminalized. For example, failing to mention something relevant when under penalty of perjury. How this is handled gets complicated, and generally speaking, such actions or inactions have to clearly show intent to invoke (or not) the specific right. This is precisely why it’s important to say “I wish to invoke my right to silence and to an attorney” when arrested, because otherwise the government’s obligations are confused, since the rights are confused. That statement unquestionably clears up the situation for how the govt must behave.
Basically, in order for the govt to meet its obligation not to interfere with someone’s choice of lawyer, it would not be proper if they proposed a lawyer by name to represent that person. Even just making such a proposal is coercive, since the govt holds most of the power and clout when in court. People unfamiliar with the legal system might just go along with it, unaware that the govt is there to prosecute them, not necessarily to aid them. Instead, in the current system, if the person voices their request for a lawyer, then that sets into motion the court’s apparatus for verifying their eligibility for a public lawyer from the Public Defender’s office – btw, these offices are woefully underfunded, so contact your representatives to fix this! – and then finding such a lawyer to represent the person.
All of this stems from due process, and the “Miranda warning” is the practical implementation of due process. Since if someone doesn’t even know they have a right, it might as well not exist.
I think the only question should be “do you have your own lawyer you like to use, or are you happy enough with the court-appointed one?”
This is the obvious question, following notification that the right even exists. But again, if the appointed lawyer has already been selected and it’s only a trinary choice - your own lawyer, this specific public defender, or no one – then that’s still somewhat coercive. It precludes the possibility of having a different public defense lawyer, of which the existing process already handles.
When I say that the public defender’s office finds a lawyer to represent someone, they do so while mindful that not every lawyer can represent every client. After all, Greenpeace wouldn’t want a lawyer that’s also currently working a case for Chevron, the oil giant. Conflicts of interest may arise, as well as any other scenario that would make said lawyer less effective at their job: zealously advocating for their client.
But again, this isn’t an unlimited right of the person, so a case cannot be delayed indefinitely because the client doesn’t like any of the public defender lawyers. But a case can absolutely be parked due to no available public lawyers, though if this happens, courts typically have other avenues to clean the logjam but without infringing on civil rights.
Has there ever been any attempt to make that the norm in any countries?
I’m only vaguely familiar with Anglosphere jurisdictions, and haven’t come across a system that improves on this situation. Though quite frankly, if it’s going to happen, it should be tried at the state level in the USA, where there’s the most room and latitude for improvement.
I’m not even sure opting out should be allowed, but I’m open to hearing reasons why that would be a bad system
The coercion issue from earlier can be turned to 11, if the govt is operating in bad faith. Imagine, for example, that the govt charges someone with bogus accusations, then bribes a corrupt lawyer from out-of-state to come represent the defendant against their will, who will then “throw” the case and land the defendant in prison. There are a lot of norms and procedures that would have to be violated to do this, but that’s kinda the point: defense in depth is equally applicable to computer security as it is to civil rights.
An institution that assumes good faith govt will be hard pressed to deal with a govt that acts in bad faith. I make no excuses for the numerous American federal and state-level judicial fails, but when it comes to institutions that will uphold civil rights, individual liberty with regards to accessing the legal system is crucial.
This brings to mind for me Michael J. Sandel’s discussions of law (a compliment, as he is a Harvard law prof.)
And where are we going to get this army of professionals?
That would be the government’s problem, not an issue for the accused to solve.
Cute… Consider reading some intro materials for political science topics. That should fix this attitude right up
Because you are a subject of a sovereign. And the sovereign decided that you don’t get it unless you are sufficiently educated to know and have a pair of balls to ask for it.
