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Join the conversation! There are now 24 comments on this chapter's page 67. Miranda’s Magic Words: A Refresher. What are your thoughts?
  1. Robert Montrose says

    Nathan, on the previous page you said with regard to mail-in citations, “Why anybody would plead guilty before even setting foot in a courtroom is beyond me.” Honestly, it’s not surprising that it’s beyond you. You have worked with the criminal justice system your entire professional career. You know the players, you know the game. It’s long ceased to be intimidating, and I suspect being the subject of a proceeding instead of the counsel would not change that very much.

    For everyone who isn’t a lawyer, however, the justice system is the aspect of government best kept as far away from one’s world as possible. In fact, I would suggest that for most people, merely being subject to a judicial proceeding is itself a punishment. Time, money, and reputation are all at risk when the authorities accuse one of a crime, or even when they express the possibility you could be involved in one.

    Therefore, the first impulse of most people when they receive a mail-in citation is to treat it not like a criminal proceeding, but like an outstanding debt to be discharged. That is the very reason why the courts allow such fines to be mailed in: it gives people the opportunity to stay as far away from the legal system as possible.

    One cultural result of this is that people bandy around the term “unpaid” parking tickets, as opposed to “unanswered”. The default societal expectation is that a citation will be simply paid up with what is in effect an attempt to bribe the court and its officers into leaving one alone.

    The same thing comes up with regard to custody. It is instilled in each of us that we can’t fight the law. Thus, if fight is not an option, then the only stress response left is flight. People try to talk their way out of trouble because they are hoping to get out of custody as soon as possible, even if doing so could increase their vulnerability to prosecution later down the road.

    This effect is dramatically exacerbated by the harsh, almost punitive nature of jails around the country. If they were more purely secure holding facilities, something like Norway’s Halden Prison, perhaps people would be able to resist police intimidation with a bit more composure. An overnight stay wouldn’t be so stress-inducing that people frequently waive their rights in the faint hope of avoiding it.

    Similar issues go for a stop by police. Except perhaps for the mundane traffic stop, every time one is detained by police, one is immediately made to feel like a criminal. You are handcuffed, patted, poked and prodded for the purposes of “officer safety”, and if you aren’t 100% cooperative, you risk running into the first rule of policing, leaving in a stretcher if you’re lucky, and a body bag if you aren’t. How’s that for coercion?

    • As the layman who started reading this because I felt like I did not understand the law; this is exactly how I feel when dealing with the courts and officers (and I have never been patted down or anything like that).

      My first run in with the police came right after I got my driver’s licence. My work put me in a bad spot, and I did not handle it as well as I could have and I got T-boned by a car at low speeds. Everyone was fine but I was technically at fault. My first impulse was to just pay it, but my parents told me to go to court and explain what happened. The judge reduced my fine so low it may as well not have existed and I was quite grateful. But there was a lot of fear and shame associated with the process.

      Getting rid of that fear is one of the things that got me interested in reading this and why I want to see legal education included in high schools.

      More people would be willing to talk to the police about things they saw and were worried about if they understood the process.

      Also more people would know what to do about police power abuse. After all, with the conflicting pressures police officers are under and the risks that come with their jobs how can some of them not go bad? The best thing we can do for them is catch the problems early so they can be addressed as necessary.

    • I’d like to add that it doesn’t help that, even when you know you are fully justified in your rights and behavior at the time (as from consulting a lawyer before doing so, or similar), when encountered, often enough, police officers themselves don’t quite understand the law they’re attempting to enforce, and are simply trying to “be effective” by intimidating, even if unintentionally, you into compliance with their orders, in spite of, and in waiver to, your lawful rights.

    • Remember a police officer’s job involves dealing with unknown people in adversarial situations that might, at a moment’s notice, decide to attack or otherwise attempt to harm or kill them.

      So maybe cut cops a little slack.

      • That helps from the perspective of not calling all cops assholes. But to be honest, knowing that the person you’re dealing with is extremely aware of the possibility that you might be about to flip out and attack them does not make the interaction less scary.

    • Yes, traffic violations are the worst. Two years ago I was stopped and issued a ticket for going 85mph in a 70mph zone. The officer pulled over the wrong car… I hired a lawyer and went to court, but even though adjudication was withheld (the cop showed up, so I was advised that I would automatically loose if I continued to contest), I still had to pay the “court costs,” which were (I’m sure just a coincidence) the same amount as the ticket. The whole experience cost me twice what simply paying the ticket would have, but I believed it was the correct response. How is that we are presumed guilty in traffic court?

        • Florida. I wrote out what happened: Two cars passed me (all three silver late model small sedans), and then one of them slowed and I passed him (my cruise was set at 74mph, which is only a warning in FL). The other kept going… The cop pulled me and the one behind me over. I also offered a evidence from testimony I gave in a previous accident (not my fault), where I stated I always dive with my cruise-control set 4 mph over the posted limit. I offered to bring people who traveled with me to testify.

          My lawyer said that if the cop appeared we had to plead. If the cop didn’t show, I would win.

          He came to court that day…

      • Did you put forth any evidence besides “it was the wrong car”? Or any evidence it was? Your word verses a police officer’s word is never going to work – not just because he’s a cop, but because he’s considered an expert in traffic enforcement. You’re not guilty until proven innocent, he’s “proving” you guilty with his testimony, and you need to effectively refute it. And it’s possible, I’ve done it.

        • Correct me if I am wrong, but I believe the problem is that the testimony of an officer of the law is always taken over the testimony of a citizen. If the officer says he saw that car speeding (because he did not realize that his gun had hit a different car) then that car was speeding. The only thing that trumps an officer’s word is hard evidence.

          • Just to clarify, without this rule we would get some messy situations.

            Such as an officer seeing someone break into a store and arresting him. The man could in court say “The officer is the only one who saw me, but I say it was not me and the store was like that when I arrived. There is no proof beyond his word I broke in, and that is conflicted by my testimony, so clearly I am innocent.”

            The idea being any officer who routinely lies will eventually get caught, but the majority of the force is honest because it is their job.

            • See my answer to your first comment. (Which due to nesting should appear below this.) The “rule” you mention is not the rule. An officer’s testimony is not automatically any more or less credible than anybody else’s.

          • You are wrong, sorry. A police officer’s testimony is not inherently more (or less) reliable than anyone else’s, just because he has a badge.

            This is what cross-examination is for: it’s the tool we use to test how much to believe a given witness’ testimony. Not necessarily whether it’s a lie or not, but whether it’s something the jury ought to believe.

            It’s not a foolproof tool, and even a skillful cross-examiner can’t reveal every lie or mistake. But if you’ve done your homework and really know your case — and if you actually know how to cross effectively — you can develop excellent reasons not to believe an inaccurate witness, whether he’s a cop or not.

            You’re never going to get the witness to admit he’s wrong right there on the stand — that kind of thing only happens on TV. [Well, to be honest, I just finished three trials in a row where I somehow got the government’s star witnesses to admit that they’d just lied under oath — but that’s rare as hen’s teeth and I can’t expect that to ever happen again. Seriously, this never happens.] But you can definitely bring out contradictions, implausibilities, errors, things that actually fit your side of the story, and other credibility issues you can argue to the jury.

            What often “trumps” that officer’s word is nothing more than his own words… on cross. Hard evidence is nice, but it’s not the only thing.

            • In theory, maybe an officer’s word is the same as everyone else. In practice, though, I don’t buy it. In most cases where it’s just one person’s word against another’s, the police officer is probably going to get the benefit of the doubt. I’m idealistic, but not -that- idealistic.

              Anyways, I didn’t mean to imply the only way you were going to win in court against a cop was hard evidence. I didn’t think of calling it a cross-examination when I posted that comment, but yes, that’s what you have to do. I don’t think the person I replied to did that, and it’s not a surprise he lost. You can’t just offer up a defense, you need to show the officer’s assertion is incorrect.

              For what it’s worth, what you said to do is exactly what I did when I beat my ticket – I asked the police officer questions about his testimony and what he actually did see, and it turns out he didn’t see a key element of the violation happen. The officer wasn’t even bitter about it, even – he shook my hand and congratulated me afterward.

              • Thanks to both Nathan and Usa. Another of my misconceptions banished!

                I will still expect an officer to testify well because they spend more time on the stand than most, however I will remember that they can make mistakes and a good officer will be honest about it. And if the officer is not honest, cross-examine!

    • Jail and prison are not the same thing. Jails are just supposed to prevent people from fleeing the jurisdiction before trial. Prisons are for punishing people after they have been tried and sentenced. Prisons are supposed to be punitive Maybe the terminology works differently in Norway. However, even if that is the case you should have clarified that.

      • That’s exactly his point. Jails aren’t supposed to be punishment, but are often kept in worse condition than prisons. The thought of spending the night in jail is so horrible that people waive their right to silence to try and convince the cops to let them go. Because let’s face it; if you don’t waive your rights, how likely is it that the cops are going to fall over themselves to get you a lawyer on the very same day?

  2. Robert Montrose says

    Nathan: Indeed a cop’s testimony is not legally treated any differently than that of any other witness, but to the average judge or jury, a badge is a silent, yet powerful character witness. While for an ordinary witness, a jury usually needs some proof of honesty before they will consider the testimony seriously, for law enforcement, the default assumption is that the officer is trustworthy, until and unless that assumption of honesty is impeached by solid evidence.

    • Depends on the community.

      Still, that’s an attitude that can be dealt with in jury selection, if your jurisdiction lets you conduct voir dire. Here in NYC, I’m constantly amazed at the number of people who are less likely to believe a police officer, just because he’s a cop — which is especially common when said jurors have law enforcement husbands, brothers, cousins. Go figure. (It does happen that someone says a cop is more reliable, but it’s not anywhere near as common, in my experience.) Anyway, there’s a “for cause” challenge for those jurors who can’t take each witness as an individual, and are predisposed to believe or disbelieve them merely because of their job title.

      I myself prefer to ask them all to promise me that at least they won’t credit or discredit a witness until they’ve heard their testimony, rather than bump them for being irrationally and unfairly predisposed. But that’s just me. I actually get along pretty well with most jurors, and when we “click” I’d rather have that than have them say all the “right” words in voir dire.

      • When I was called for jury duty, I got that question. I did answer that I was more likely to believe someone because they were a police officer. When asked about my answer, I explained that while I wouldn’t necessarily believe the officer automatically, with all things being equal and of there was a situation where it was a cop’s word versus someone else’s word, I’m more likely to believe the cop – not just because they were a cop, but because they have little to gain and a whole lot to lose by lying, and the same can’t be said for the defendant.

        I was dismissed for cause. Probably rightly so (the voir dire questions hinted it was a rape case where police testimony would be key), but I was still a little put out by it.

        • I have a few friends who are in law enforcement. I wouldn’t give them anymore credit for honesty than I would a used car salesman. I’m told that in Florida, an officer is “sworn” 24/7 and he never “not an officer of the court.” Yet, these same officers take security work for the stars who come to perform in the area and watch as illegal substances are used/consumed. I, personally, find that troubling.

          • Used car salesman? You’re basically calling cops incapable of telling the truth?

            I can understand a cop turning a blind eye to relatively minor stuff with friends and family — for some, it might be almost a necessity, to avoid being abandoned by their own support system. On the other hand, only a fool would knowingly violate criminal code while a cop is present.

            I thought it was lawyers who are officers of the court, not cops?

  3. My father beat a ticket, once, when he had solid evidence to show the judge. For the other cases…, he, and I in my turn, were usually guilty anyway, and for the rest were apt to consider it rough justice that we have avoided more tickets where we were guilty than hit with paper when we were not. Because usually the cost of proving innocence was pretty much the price of the ticket anyway.
    Now if there had been a couple of years on the line… but when you need a $1000 lawyer to beat a $500 ticket…
    The press also tells us of cases where the defendant can walk by pleading guilty. They are not common, even downright rare,

    But equality before the bar is more theory that practice.

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