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There are now 23 comments... what are your thoughts?
  1. philosoraptorjeff says

    Took me a minute to get the “Supremes” joke.

  2. Gregory T. Bogosian says

    Why does the supreme court keep guaranteeing that we have a right to counsel, but only in situations that almost never come up in real life? Is their some guiding constitutional interpretive philosophy that explains all or most of this? Or does the supreme court just really want to sound like they are pro-defendants’ rights without actually jeopardizing law-enforcement?

    • They just haven’t extended the rule far enough yet.

      Originally, the right-to-counsel clause of the Sixth Amendment was intended to allow you have a defense attorney. It was a reaction to the English rule prohibiting defense counsel.

      The English prohibition started out as a well-intentioned policy. Originally, criminal trials didn’t involve lawyers on either side. The victim or his family presented their case, and the defendant defended himself. A criminal trial was a “battle of amateurs,” and so judges would strictly enforce the prohibition on defense counsel to be fair. Lawyers were also seen as an impediment, preventing the court from getting all the evidence it could have heard.

      But by the time of the American Revolution, the rule had become unfair. Defendants had to deal with the intricacies of procedure, complexities of law, and now the government was using lawyers to prosecute cases. The Sixth Amendment was meant to fix that unfairness.

      But the focus then was only on the trial itself. The framers of the Bill of Rights were really only thinking about trial. The Amendment’s rights apply “in all criminal prosecutions,” and at the time, that meant “at trial.”

      Over time, however, prosecutions got longer, and more procedures came to be seen as being part of the case. Defendants had to face professional lawyer adversaries earlier and earlier, and confront witnesses at pretrial and preliminary hearings. The Supreme Court responded by extending the right to counsel, letting it take effect sooner.

      The rule became that the right to counsel “attaches” at all “critical stages” of a prosecution before trial.

      And that’s what the Court was thinking when it talked about interrogations and lineups. The Court was trying to be expansive, to say these investigative procedures were in fact “critical stages” of a prosecution, requiring the assistance of counsel.

      But the right is still only about “criminal prosecutions.” And there is no prosecution until the defendant has been formally charged. A prosecution does not begin with a police investigation. A prosecution does not begin with an arrest. It begins with arraignment in court on a complaint, an indictment by a grand jury, and similar court procedures formally accusing the defendant of a crime.

      It would be a leap of language — but not of logic — to extend the rule of the Sixth Amendment sooner, to extend it to police investigations. Remember, police weren’t a thing when the Sixth Amendment was written. They have since become an important part of the government’s prosecution of a case. The Court already recognizes that the investigative stage is a critical stage of the prosecution; it just hasn’t recognized that the investigative stage precedes the filing of an accusatory instrument.

      Right now, however, that is where they’ve drawn the line. They’ve adhered to the words of the Amendment rather than the principle they’ve recognized. And this rule has become “well-settled” by the passage of time.

      So the short answer to your question is they’re trying to protect defendants, but haven’t yet seen that to do that they need to extend the meaning of “criminal prosecution” to include police investigations.

      It’s not impossible. They did that with self-incrimination, as we saw in the previous chapter, extending the right to pre-prosecution interrogations. Nevertheless, challenge to get the Court to extend the right to counsel meaningfully would have to overcome the inertia of stare decisis, would have to present a powerfully principled argument, and would have to rigorously unknot the Court’s perpetual confusion over what to do about police given (also covered in the previous chapter) that the law never contemplated the roles that police have taken on.

      • Doesn’t the person being investigated have the ability to force the issue? As in, “If I’m not under arrest, then I’m leaving.”

        • Remember there’s something between “arrest” and “free to go”? It’s called “police custody”.

          • They can only detain you for a limited amount of time, time enough to take care of the reason they detained you. They can’t “detain” you indefinitely. Once they clear up the issue, they either have to arrest you or let you go (and while they can drag ass resolving the issue, doing so intentionally might violate your rights).

            As far as I know, any time your freedom of movement is being restricted by law enforcement, you’re in “police custody”. It’s not a separate “status” as far as I know.

            • You are all confusing the police seizing someone with the police searching someone. If the police seize you so that you are not free to leave, then their is no level of seizing higher than that or lower than that. Whether the police formally arrest you or not, they are still allowed to prevent you from leaving for up to 24 hours, whether they had probably cause or not. “custody” only speaks to whether they have to read you your rights before they start asking questions or not. and the terms “detention” and “arrest” only speak to what kind of search the police are allowed to conduct. None of those terms actually speak to whether the police are allowed to seize you and prevent you from leaving or not. So to answer Carl’s original question, the answer is no. You cannot leave just because the police did not actually say that you are under arrest. Even if they never actually say that you are under arrest, they can still keep you prisoner for up to 24 hours, it doesn’t matter why they did so.

              • No offense, but I know Mr. Burney is a lawyer, and I don’t know you from Adam. Can I get a cite? Or if Mr. Burney would care to verify/dispute this, I’d be grateful.

                  • I don’t know where I got 24 hours from. Sorry, that was wrong. In truth, it varies from state to state how long the police can hold you after an arrest without the prosecutor’s office filling charges. This is kind of problematic because the term “arrest” is not well defined in American case-law. When I said that it doesn’t matter whether you are “detained” for fourth amendment purposes or in “custody” for fifth amendment purposes. I was going by the comic where the narrator said “if you are seized, then you are seized.” Besides, the courts can only suppress evidence acquired from an arrest, they cannot suppress the arrest itself.

                    • These links aren’t talking about the same situation. The link asks how long can you hold someone who has been arrested before you charge them with the crime you arrested them for. That’s usually 24-72 hours (get them in the next day, or if the unlucky sod got snagged on Friday, bring them in Monday). Seized is seized, as in “Doesn’t matter what they are holding you for, they’re still holding you”, but that doesn’t mean that all “levels” of detention are equal still. In the end, they still can only hold on to you as long as they have a reason to – and if they want to do it long-term, they need to formally arrest you and give you all that protection.

                    • Hmm. The internet appears to have eaten my last comment. I’ll try again.

                      I read your cites and I have one of my own.
                      Unless I’m greatly mistaken, Mr. Burney’s points were that the type of stop didn’t apply to the degree of a search, only the degree of suspicion. So, if the cops only reasonably suspect you of something, they can get away with a frisk. If they are pretty certain, they can justify an arrest.
                      Those two strips don’t mention the length of the stop.
                      Of course, IANAL. Not even pre-law. That said, I’m greatly appreciating Mr. Burney’s efforts of shining a fog lamp into the murk of our legal system.

                • Back in comic 1829, the narrator said “The kind of detention isn’t important, if you are seized, then you are seized.” I would like to post a link to it, but I tried and it didn’t go through. That thing I said about the length of time being 24 hours was wrong. I don’t know where I got that from, sorry. It varies from state to state. However, in most states the police are allowed to hold you for 72 hours without the prosecutor’s office charging you. I don’t know how long a stop can last. But it almost doesn’t matter because the court’s haven’t figured out how to differentiate a stop from an arrest yet. I think that that is in comic 1822.

  3. Taleweaver says

    Looks to me that quite a few issues popping up here seem to boil down to “the law’s supposed to protect the individual from the state violating his rights, but it really doesn’t”. Like here – a prosecutor is supposed to prove that someone committed a crime using evidence, but eventually, it falls upon the defence to prove that certain evidence isn’t admissible? So it’s no longer “innocent until proven guilty” but rather “guilty until evidence is proven faulty”.

    (I know it’s technically “not guilty before the jury comes to a verdict,” but really, you already spend time in prison even before that verdict, so, yeah, it’s definitely a punishment you’re suffering in advance. And don’t tell me that you’re compensated for time you spent in prison wrongly – the money involved is laughably little, and you might lose your job and other social connections over doing time in jail until your trial.)

    U.S. law is currently awfully stacked against anyone the police suspect of a crime. The recent police shootings fit right into that picture.

    • Being incarcerated pre-trial or during the trial is a different issue. The state wants to make sure you show up for your trial. Generally that’s done by having the defendant post bail, but if they feel like you’re likely to take off, for whatever reason (serious charge with strong evidence against you, no ties to the community, relatively unknown person), they might now allow bail. Or a defendant might not be able to post bail. If that’s the case, they will hold the person in jail (not prison) for the trial’s duration.

      It would be nice if this person wasn’t spending time in jail while the case of mistaken identity was cleared up, but honestly, what’s the alternative? Let potential (and likely) murderers stay on the loose while their lawyers go through motions and challenges on evidence that they’d be doing whether or not the client was guilty or not?

      And trust me, the law is stacked heavily in favor of the people they suspect of a crime. Police may violate your rights in this country, but in others, you don’t have any rights to violate. And this includes many civilized nations.

  4. Librarian says

    Would a Breach of Trust suit work as a remedy for these sorts of Public Servant Misconduct? Why or why not?

    • First off…what misconduct? In this situation, we aren’t dealing with any police misconduct here. Just police that have made an honest mistake.

      Second, while it probably wouldn’t be “breach of trust”, you could sue a police officer. But it’s really, really, really, reeeeeeeeeeeeeeeeeeally hard (and pointless, they tend to not have money. Aim your suit at the police department or the government instead). There’s a few hurdles, but in general, you’d have to show that the officer went way too far, to the point that there’s no way he could possibly be acting as a police officer in that situation. That’s hard to do when “shooting people, forcefully subduing them, and depriving them of their liberty” is part of your job description.

  5. SeanR says

    No offense, but I know Mr. Burney is a lawyer, and I don’t know you from Adam. Can I get a cite? Or if Mr. Burney would care to verify/dispute this, I’d be grateful.

  6. Gregory T. Bogosian says

    @UsaSatsui But what does it mean to “formally arrest” someone? The term “arrest” is not well-defined in American jurisprudence. Didn’t the courts already rule that the police can arrest you without telling you that you are under arrest? So if they held you without formally arresting you, how would anyone know?

  7. Gregory T. Bogosian says


    Assuming that I understood the opinion of the court, this holding only applies to whether the police can extend the length of a stop beyond the time needed to fulfill its original purpose. It doesn’t say anything about how long a stop can be originally and it doesn’t say how to differentiate a stop from an arrest. So it doesn’t really speak to whether their are different levels of detention. It only speaks to under what circumstances extending a search beyond the scope of a traffic stop is reasonable for 4th amendment purposes.

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