But other than probation, parole, and suspended sentences, we don’t allow the criminal to go free. We convict him, execute him, send him to jail or prison, or do one of the non-incarceration sentences if appropriate (and one’s freedom is drastically curtailed on probation or parole; ask wring for details on what’s typical). While it might be nice if e were omniscient and convicted all those and only those who are in fact guilty of crimes, we aren’t – and under the law, the guy who walks out of court with a dismissal or acquittal is no more a criminal than you are.
I think the term “getting off on a technicality” commonly refers to a case where the accused meets all the substantive elements of a crime, where the evidence is readily available to prove it, but also where the accused is not convicted of that crime due to a procedural defect in the case. Criminal Procedure trumping Criminal Law. Form over substance, even.
Unbelievable!
As others have noted, just because you feel like imposing the label “technicality” on such things does not alter the fact that the requirements for Miranda warnings and search warrants constitute fundamental defenses of our most basic freedoms.
If someone who commits a crime manages to escape conviction because the police made an illegal arrest or conducted an illegal search, then the blame for that rests squarely on the shoulders of the agents of the state.
I agree that that is what people mean. What I asked for is an example of that happening. You hear it talked about and you see it on TV but you don’t see it in real life. Any “technicality” usually means there is a reason that some evidence is not trustworthy and should not be admitted. Whether it is because it was obtained improperly or some other “technicality”.
Here’s an example from real life, from Scotland in 2001.
I’m sure an American example could be found without too much trouble.
Three things:
1-News preports of “technicalities” are notoriously unreliable.
2-When you find an American example let me know.
3-None of my comments apply to non american law since I don’t know much about it.
Are you seriously asserting that we don’t have cases in America where, as a result of improper search and/or seizure, or violation of rights under either the Fifth or Sixth Amendments, accused people who would most likely be convicted are found not guilty resulting from application of the various procudural penalties we apply for those violations? Do you really believe that the assault upon Mapp and Miranda which continues to this day by prosecutors and legislators alike is truly “needless” from their viewpoint because all the likely guilty parties get convicted anyway?
No. I am not saying that at all. In fact actually I am saying just the opposite. What I am saying is that I do not consider state violation of procedural rules a “Technicality”. And technically people do not get off on technicalities. There is no rule which if the police violate it the defendant goes free. Sometimes the tainted evidence cannot be used but the state can go forward without the tainted evidence. If the state cannot prove its case then the defendant did not get off on a technicality he was simply not found guilty.
Actually, it seems that a key assertion from your article is actually untrue, or at least is not the whole truth, to wit:
But, as this article notes:
There are very good reasons for having a law that allows only those people mentioned in the search warrant to enter the property. And if this law applies to EVERY SINGLE WARRANT issued in Scotland—as the article says—then the cops had no excuse for fucking this up.
From the article:
As this quote suggests, what the police did constituted “infringements of the powers of a warrant.” In my opinion, that’s not something we want to encourage by looking the other way. In this case, the infringement might seem to be minor, but if warrants are not adhered to properly then they become rather pointless as legal instruments.
The worst thing is, there was absolutely no reason to have Cherry with the cops on the raid:
Jesus Christ on a Pogo Stick! Couldn’t they have found a cop that knew how to disconnect and reconnect a desktop computer? This isn’t exactly rocket science. Hell, the cop would only have needed to know how to dismantle it; once the computer was actually in the police station, it presumably would not have been a violation of the warrant for Cherry to get it up and running again.
The Scottish MP quoted in the article got it right, IMO:
Which is not to be confused with justice. Which gives rise the the view of lawyers as the scum of the earth.
People always say stupid shit like this until they actually need a lawyer themselves. To bad we cannot tatto it on the heads of people who say it so lawyers will see it when they are begging them to save their asses. Not that a good lawyer would give two shits. It would just be funny.
Not sorry at all to harp on this, ralph…
But that is NOT what a defense attorney does.
I know you’re being figurative, that you mean that the defender “destroys” the validity of the evidence being presented against the accused – but, if the defender is for example bringing up the fact that there was an illegal search, what she is pointing out is that THE AGENTS OF THE STATE (Crown, for Commonwealth Dopers) VOIDED THE EVIDENCE by conducting an illegal search. It’s THEIR fault if criminals can’t be properly convicted.
Unless your client directly affirms to you not only that he did it but that he intends to kill again, you bear no responsibility for his future action.
Y’know, some of the expressions here seem to carry with them a worrisome presumption that the writer will never have to in any way fear being on the wrong side of a *botched or fabricated * criminal investigation, and these sorts of things just happen to Scum and not to Us Fine Upstanding Citizens.
Oh, and as for aldiboronti’s example: The "technicality"there was that the police could not bring in some outside civilian to secure the evidence w/o having it be previously so authorized by someone with the authority to do so (simple thing: “Right, boys, the suspect is a guy with a large scale of filesharing activity - means he may have a fancy computer rig, and the Prosecutor wants whatever’s in it to be secured properly. I’m the first one to admit none of us is much of a tech genius, so, McMillan, make sure you get an authorization to bring along an outside geek to take down his system.”) . Why so? Oh, maybe because the presence of outsiders can bring into question the chain of custody and the possibility of planted evidence.
Think of it like a Football game if the quarterback throws the game winning touchdown pass from in front of the line of scrimmage and the refs call the foul and disallow the touchdown, did the team loose because of a technicality?
Yep.
I’m sorry- I think you misspelled “legislators” in your post. You know, the people who pass laws… Or were you thinking of “law enforcement?”
:rolleyes:
All I did was point out the reality of public perception. But if you’re handing out tattoos it would be equally entertaining if lawyers wore their livelihood on their heads.
And I agree, a good lawyer doesn’t give a shit. Which probably adds to the mystique.
Interesting that you brought this up. What percentage of legislators do you suppose are lawyers?
[Moderating]
I do not think that remarks such as this make a positive contribution to the thread. Please refrain from further commentary in this vein.
Colibri
General Questions Moderator
I have no idea. Do you?
However, I do know that the vast majority of lawyers are not legislators… :rolleyes:
You’ll have to be more specific. The thread is about lawyers defending scum. I pointed out the reality that law and justice are not the same thing. The bad reputation lawyers get is directly associated with this fact. The question posted is really a 2 parter: how does one get stuck with defending scum and why does one willingly seek out the job.
Of the latter there are at least 2 reasons to willingly take the job: to defend someone for humanitarian reasons (nobody wants the job), or the fame/glory/financial gain from a high profile case.