5 ms·

> He has the unqualified right to remain silent and to a jury trial in which illegally gathered evidence is excluded, neither of which he would have in the UK.

by opaque 9y ago

> He has the unqualified right to remain silent and to a jury trial in which illegally gathered evidence is excluded, neither of which he would have in the UK. Er... go easy on the patriotism, mate. We have those. https://en.wikipedia.org/wiki/Right_to_silence_in_England_and_Wales https://en.wikipedia.org/wiki/Right_to_silence_in_England_an... The US system also has flaws not present in our system (at least for now) e.g. Plea Bargains. https://www.theguardian.com/law/2017/apr/27/traditional-trial-rights-renounced-as-countries-adopt-us-style-plea-bargaining https://www.theguardian.com/law/2017/apr/27/traditional-tria...

marcoperaza 9y ago
>Er... go easy on the patriotism, mate. We have those. Despite your snarky tone, you are mistaken. See my comment here: https://news.ycombinator.com/item?id=14935867 https://news.ycombinator.com/item?id=14935867
- humanrebar 9y ago
  Honestly, the exclusionary principle seems to value the process of the trial over the actual pursuit of truth in the case. I'm fine with excluding evidence that is false or somehow contaminated, but it's hard for me to justify pretending a murder weapon wasn't found because of a procedural mistake. There are surely other ways to enforce the relevant rights and procedures.
  - marcoperaza 9y ago
    The idea of the exclusionary principle is that it's the only way to have the right incentives for the authorities to abide by constitutional restrictions on their power. If they don't follow the rules, then they can't use their evidence in court. As a result, their internal procedures are designed to prevent that outcome. Despite the high profile cases and media coverage that makes it seem otherwise, law enforcement procedures tend to be much more restrictive than the constitution demands, because they want to avoid any doubt that their actions are legal and that their evidence is admissible. They also want to avoid edge-cases that could lead to court rulings that add to their constitutional restrictions, which will tie their hands in future cases where they might have a pressing need to exercise the full scope of their powers. Without the exclusionary rule, you rely on the authorities following restrictions purely out of the goodness of their hearts, or only as much as the voters of the day demand. What incentive would the prosecutors and police have to limit their own authority? You can't have the fox guarding the hen house.
    - humanrebar 9y ago
      > ...it's the only way... How can this be true? "Only" is a strong word. And there are functioning judicial systems elsewhere that have different evidentiary rules. I agree that there should be external incentives to obey rules and procedures, but there have to be other incentives out there. Why can't sanctions against individuals and organizations work just as well, for instance? The exclusionary principle is remarkably indirect, if incentives for law enforcement officials is the primary reason for the principle.
      - marcoperaza 9y ago
        >Why can't sanctions against individuals and organizations work just as well, for instance? Because the judicial branch doesn't play an active role in regulating and managing the executive branch. They can only address specific cases and controversies that have been brought before them. And if the legislature doesn't enact penalties for police overstepping their bounds, then the courts can do nothing to punish them. They can only issue orders to halt a specific ongoing violation. This is a hard requirement of the US Constitution[1], and the other common law systems around the world function the same way. [1] https://en.wikipedia.org/wiki/Case_or_Controversy_Clause https://en.wikipedia.org/wiki/Case_or_Controversy_Clause
        humanrebar 9y ago
        So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible. What concerns me is that there seems to be a resignation to a false dichotomy between partially informed jurors and abusive trials. I'm not convinced that there isn't a better option out there. Especially since the U.S. is somewhat unique in its application of the idea. http://www.nytimes.com/2008/07/19/us/19exclude.html http://www.nytimes.com/2008/07/19/us/19exclude.html
        marcoperaza 9y ago
- opaque 9y ago
  "it may harm your defence if you do not mention when questioned something which you later rely on in court" "In every other country (UK), it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence." I would regard these as features rather than bugs.
  - marcoperaza 9y ago
    As a layman, you do not have the training to reliably talk to police in a way that best protects your interests. The absolute right to remain silent means that you never have to weigh the need to speak immediately against having the benefit of an attorney's advice.
    - opaque 9y ago
      Well if you explain that (very reasonable argument) to the jury at your trial I'm sure they'll be understanding. In practice it would be interesting to know how many suspects are formally interviewed before a lawyer is present. Anecdotally I would think it's low, but I don't know.
      - marcoperaza 9y ago
        I'd be shocked if police don't try to question every single arrested person before they've spoken to a lawyer. It is the best chance the police have to conduct an effective interrogation. You'd be surprised at the number of people who talk their way into prison. There's a reason why the most important legal advice is "ask for a lawyer and shut up".
        4gtpw9eml 9y ago
        Scotland, part of the UK, complete right to silence and police aren't allowed to interview you without a solicitor (lawyer) present; unless you specifically decline one. Overall though the UK is better than the US. You only have to watch a couple of episodes of John Oliver to know that!
humanrebar 9y ago
I'm not sure plea bargains are a flaw in the system. It can be more humane to skip drawn out processes, public spectacle, and get on to the sentencing when the events are clearly criminal. I'd like to see the number of actual trials and verdicts (guilty or not) go way up, though. If that's too expensive, then we should start repealing laws that are literally not worth enforcing.

by opaque 9y ago

marcoperaza 9y ago

>Er... go easy on the patriotism, mate. We have those. Despite your snarky tone, you are mistaken. See my comment here: https://news.ycombinator.com/item?id=14935867 https://news.ycombinator.com/item?id=14935867

humanrebar 9y ago
Honestly, the exclusionary principle seems to value the process of the trial over the actual pursuit of truth in the case. I'm fine with excluding evidence that is false or somehow contaminated, but it's hard for me to justify pretending a murder weapon wasn't found because of a procedural mistake. There are surely other ways to enforce the relevant rights and procedures.
- marcoperaza 9y ago
  The idea of the exclusionary principle is that it's the only way to have the right incentives for the authorities to abide by constitutional restrictions on their power. If they don't follow the rules, then they can't use their evidence in court. As a result, their internal procedures are designed to prevent that outcome. Despite the high profile cases and media coverage that makes it seem otherwise, law enforcement procedures tend to be much more restrictive than the constitution demands, because they want to avoid any doubt that their actions are legal and that their evidence is admissible. They also want to avoid edge-cases that could lead to court rulings that add to their constitutional restrictions, which will tie their hands in future cases where they might have a pressing need to exercise the full scope of their powers. Without the exclusionary rule, you rely on the authorities following restrictions purely out of the goodness of their hearts, or only as much as the voters of the day demand. What incentive would the prosecutors and police have to limit their own authority? You can't have the fox guarding the hen house.
  - humanrebar 9y ago
    > ...it's the only way... How can this be true? "Only" is a strong word. And there are functioning judicial systems elsewhere that have different evidentiary rules. I agree that there should be external incentives to obey rules and procedures, but there have to be other incentives out there. Why can't sanctions against individuals and organizations work just as well, for instance? The exclusionary principle is remarkably indirect, if incentives for law enforcement officials is the primary reason for the principle.
    - marcoperaza 9y ago
      >Why can't sanctions against individuals and organizations work just as well, for instance? Because the judicial branch doesn't play an active role in regulating and managing the executive branch. They can only address specific cases and controversies that have been brought before them. And if the legislature doesn't enact penalties for police overstepping their bounds, then the courts can do nothing to punish them. They can only issue orders to halt a specific ongoing violation. This is a hard requirement of the US Constitution[1], and the other common law systems around the world function the same way. [1] https://en.wikipedia.org/wiki/Case_or_Controversy_Clause https://en.wikipedia.org/wiki/Case_or_Controversy_Clause
      - humanrebar 9y ago
        So there needs to be legislative and/or executive action for that approach, sure. But the underlying point is that the argument for evidence exclusion is a procedural one, which means that innovation on the incentives side of things (carrots or sticks) is entirely possible. What concerns me is that there seems to be a resignation to a false dichotomy between partially informed jurors and abusive trials. I'm not convinced that there isn't a better option out there. Especially since the U.S. is somewhat unique in its application of the idea. http://www.nytimes.com/2008/07/19/us/19exclude.html http://www.nytimes.com/2008/07/19/us/19exclude.html
        marcoperaza 9y ago
opaque 9y ago
"it may harm your defence if you do not mention when questioned something which you later rely on in court" "In every other country (UK), it’s up to the trial judge to decide whether police misconduct has risen to the level of requiring the exclusion of evidence." I would regard these as features rather than bugs.
- marcoperaza 9y ago
  As a layman, you do not have the training to reliably talk to police in a way that best protects your interests. The absolute right to remain silent means that you never have to weigh the need to speak immediately against having the benefit of an attorney's advice.
  - opaque 9y ago
    Well if you explain that (very reasonable argument) to the jury at your trial I'm sure they'll be understanding. In practice it would be interesting to know how many suspects are formally interviewed before a lawyer is present. Anecdotally I would think it's low, but I don't know.
    - marcoperaza 9y ago
      I'd be shocked if police don't try to question every single arrested person before they've spoken to a lawyer. It is the best chance the police have to conduct an effective interrogation. You'd be surprised at the number of people who talk their way into prison. There's a reason why the most important legal advice is "ask for a lawyer and shut up".
      - 4gtpw9eml 9y ago
        Scotland, part of the UK, complete right to silence and police aren't allowed to interview you without a solicitor (lawyer) present; unless you specifically decline one. Overall though the UK is better than the US. You only have to watch a couple of episodes of John Oliver to know that!

humanrebar 9y ago

I'm not sure plea bargains are a flaw in the system. It can be more humane to skip drawn out processes, public spectacle, and get on to the sentencing when the events are clearly criminal. I'd like to see the number of actual trials and verdicts (guilty or not) go way up, though. If that's too expensive, then we should start repealing laws that are literally not worth enforcing.