Why is having a lawyer present during police interviews "opt in" rather than "opt out"?

Comments

• roguetrick@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

  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. en.m.wikipedia.org/wiki/Salinas_v._Texas

  source

  • Catoblepas@lemmy.blahaj.zone ⁨3⁩ ⁨weeks⁩ ago

    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.

    source

    • roguetrick@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

      That’s the trick. An example is the am I being detained thing. A clock off reasonableness starts ticking as soon as you’re detained, but that detention doesn’t start until the officer tells you you can’t leave. Until you ask that magic phrase, you’re voluntarily having an interaction.

      source
  • UnderpantsWeevil@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

    The Erosion of Miranda

    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.

    source

    • psud@aussie.zone ⁨2⁩ ⁨weeks⁩ ago

      I don’t think you want to be named Md. in America at the moment or in the last several years

      source
  • FlashMobOfOne@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

    Important safety tip.

    Thanks, Ray.

    source
  • JeremyHuntQW12@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

    The 5th amendment only applies before arrest and during court. You still have the right to silence after arrest, that is a common law right.

    Salinas volunteered to go to the police station (he wasn’t arrested), so he had no common law right to silence.

    source

    • fodor@lemmy.zip ⁨2⁩ ⁨weeks⁩ ago

      Of course what you wrote is not what it actually says in the Bill of Rights.

      source
    • roguetrick@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

      That’s what Scalia argued but that’s not what the majority opinion says. They explicitly say you always have the ability to plead the fifth and have it not be used as evidence. And it’s true. You never have to self incriminate.

      source
• Deflated0ne@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

  Because conviction rates would drop by like 40% overnight thats why.

  source

  • mienshao@lemm.ee ⁨3⁩ ⁨weeks⁩ ago

    Lawyer here! Would just like to say that this is aggressively accurate—Tartarus reference and all.

    source

    • Deflated0ne@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

      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.

      source
    • renamon_silver@lemmy.wtf ⁨3⁩ ⁨weeks⁩ ago

      Mienshao is not only good at martial arts but the practice of law, too? Impressive

      source
  • bufalo1973@europe.pub ⁨3⁩ ⁨weeks⁩ ago

    Wrong. In hell there are only those that deserve it. Not bystanders and innocents.

    source

    • bufalo1973@europe.pub ⁨2⁩ ⁨weeks⁩ ago

      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.

      source

      • -> View More Comments
    • docmark@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

      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.

      Really just take your pick.

      source
    • Deflated0ne@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

      Not according to the gnostic gospels.

      source
  • thermal_shock@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

    For-profit prisons is a farce against humanity.

    source
• FuglyDuck@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

  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.

  source
• PP_BOY_@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

  Lol

  Come on, you know the answer

  source
• Ledericas@lemm.ee ⁨3⁩ ⁨weeks⁩ ago

  they will try all sorts “interrogation tactics” to get you to confess without a lawyer. some are bordering or even enhanced “interrogation tactics”

  source

  • thermal_shock@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

    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.

    source

    • mic_check_one_two@lemmy.dbzer0.com ⁨2⁩ ⁨weeks⁩ ago

      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.

      source

      • -> View More Comments
• thermal_shock@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

  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.

  And now with for profit prisons it makes sense to get you in jail rather than help you know your rights and protect you.

  source

  • JeremyHuntQW12@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

    Where I live you’re prohibited from having a lawyer after being charged before the indictment is written. And a lawyer can be charged with conspiracy fi they fail to disclose all that you said to them to the police before you are arrested.

    source
  • jacksilver@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

    Im not sure I’d call cops expert interrogators, it’s more like they’re playing with a stacked deck.

    source

    • thermal_shock@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

      That’s fair point is they do this a lot more than you or I do most likely.

      source
• Godnroc@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

  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.

  source

  • felbane@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

    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.

    source
  • Echo5@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

    Came here to say this. There’s even been movements like you find in the book Rebooting Justice to try and essentially digitize menial legal matters so that lawyers just have to put the finishing touches on them. I wonder how involved AI will get in the next 5-10 years.

    Also 2nd the point on choosing not to exercise certain rights. You have the right to free speech but you may not feel like talking, etc

    source
• bitjunkie@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

  Because the purpose of law enforcement is oppression.

  source

  • Zealousideal_Fox_900@lemmy.dbzer0.com ⁨2⁩ ⁨weeks⁩ ago

    That’s actually a delusion but ok lol. I guess the solution to being robbed/murdered/kidnapped/raped is not to call any sort of LEO and just to "‘talk it out’

    source

    • Gabadabs@lemmy.blahaj.zone ⁨2⁩ ⁨weeks⁩ ago

      It’s multifaceted, police do sometimes serve as a deterrent to or to protect people, but it’s important to also recognize the position they hold isn’t to help your average people as much as it is to maintain order for the benefit of the state. They are the internally focused gun that will just as soon shoot a killer as a black child walking down the street with a nerf gun. Either one serves the same purpose, stay in line or else, do what we say or else, they sow fear in the population while making the privileged feel some illusion of safety. They’ll help you get your stolen car back, while also arresting a mother for stealing food from Walmart, or a homeless person for sleeping in their car. If you are any sort of minority, a police officer is a much greater threat than a help, and we’ve seen that in a history of high and low profile cases where police murder black people with absolutely no consequences, or in their use to suppress even the most by-the-book protests. Instead of solving the core problems that cause the majority of crimes, like poverty.

      source
    • pneumatron@sh.itjust.works ⁨2⁩ ⁨weeks⁩ ago

      So obviously there’s not really a solution to being murdered. Licking all the boots in the universe isn’t bringing you back from the dead. Or make you unraped/unrobbed/unkidnapped for that matter. Police presence may be a deterrent, but definitely not a solution.

      So lol I guess the delusion is that cops make you safe. The harsh reality in the US is that if you’re not white there’s a non-zero chance that that same cop is gonna kill you or put your life and future in danger in a real real way.

      source

      • -> View More Comments
    • bitjunkie@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

      Go watch more Dick Wolf shit and have some ketchup with that well done leather

      source

      • -> View More Comments
  • psud@aussie.zone ⁨2⁩ ⁨weeks⁩ ago

    Nah, it’s enforcing law, and if needed, suppressing revolt

    source

    • bitjunkie@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

      That’s what I said

      source
• litchralee@sh.itjust.works ⁨3⁩ ⁨weeks⁩ ago

  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 in 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 get 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.

  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, with no 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 say something 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 then 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. Instead, if the person voices their request for a lawyer, then that sets into motion the 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.

  source
• shalafi@lemmy.world ⁨3⁩ ⁨weeks⁩ ago

  And where are we going to get this army of professionals?

  source
• FriendOfDeSoto@startrek.website ⁨3⁩ ⁨weeks⁩ ago

  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.

  source
• scarabic@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

  You’re asking why the state doesn’t exercise your rights for you instead of waiting for you to exercise them.

  On the one hand, I see your point. Just make it all part of the process. On the other hand, I have in illusions that rights and representation are going to be brought to me on a silver platter and defended by someone else on my behalf.

  They very least that any citizen must be prepared to do is invoke the rights they have. It would be great if we didn’t have to. But a lot of things would be great.

  source
• psud@aussie.zone ⁨2⁩ ⁨weeks⁩ ago

  Because our system grew out of the past. In the past people had fewer rights, the rich could hire a professional defence.

  As time passed rights for common people increased, we got the right to use a professional defence even if we couldn’t afford it. But we, like everyone else would need to choose that and organise it

  I’m sure that future fairness focused governments will rule that representation is automatic, but it hasn’t happened yet

  source
• Donebrach@lemmy.world ⁨2⁩ ⁨weeks⁩ ago

  I could see this very quickly being shifted to a norm of “we have provided you with an attorney, you do not need to seek additional council, and since there is no need we will not allow it.”

  laws are only as good as the rich allow and the most put upon fight against.

  source
• throwawayacc0430@sh.itjust.works ⁨2⁩ ⁨weeks⁩ ago

  But think of how many deadly weapons systems we can buy if we defund public defenders! /s

  source