Category: Criminal Procedure

Yes, there is hope.  I explain why in my Substack entry,  here.  As a teaser, my first two paragraphs are:

In an earlier entry, “Democracy Dies in Judicial Imperialism,” I noted the similarity between Roe v. Wade and Miranda v. Arizona. In each case, the Court treated the liberal elite’s view of law as if it were part of the Constitution, thus to insulate it from any input from that pesky hoi polloi sometimes known as “voters.”

Roe and Miranda are probably the two most important examples of the sort of obey-your-betters judicial imperialism I was talking about. Roe went down three weeks ago. In this entry, I ask whether it’s time for Miranda to follow it into history’s dustbin. To avoid any suspense, the short answer is yes — indeed it’s past time — but I have my doubts that this is going to happen any time soon, even with a Supreme Court, like this one, that takes the Constitution seriously, both for what it says and what it refrains from saying. I’ll explain momentarily why I think Miranda will be with us for a while despite a more disciplined Court.

SL&P has this post bemoaning that so much lying goes on during, and to prop up, the negotiation and tendering of bargained-for guilty pleas.  The gist of the post  —  you will not be shocked to hear  —  is that the system is rigged against blameless defendants, who then, with the cynically weary but perforce assistance of their lawyers, lie repeatedly by admitting to crimes they did not commit.

I litigated criminal cases in federal court for a quarter of a century.  There is indeed a considerable amount of lying that goes on.  But it’s not defendants’ admitting to stuff they didn’t do.  It’s defendants’ denying stuff they most certainly did do.  Anyone who actually does criminal litigation will admit this if approached in a rare moment of candor.

Still, let’s assume arguendo that innocent defendants, with their lawyers’ connivance, do falsely inculpate themselves by lying during plea bargaining in order, they calculate, to evade the otherwise looming draconian consequences of a rigged system.  Let me suggest a simple six-word remedy:  Quit lying and tell the truth.

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