3 ms·

It's been obvious for years that prosecutors are pushing surveillance laws to the breaking limit and often go beyond that in ways that defense attorneys and jud

by mtgx 7y ago

It's been obvious for years that prosecutors are pushing surveillance laws to the breaking limit and often go beyond that in ways that defense attorneys and judges don't even realize. Like it took judges 10-15 years to figure out what the prosecutors/FBI/police were doing with Stingrays. Once they started to understand how that stuff works they started requiring warrants for its use. But there are dozens of other tools and loopholes like it that prosecutors are exploiting because judges don't have a clue about new tech advances. For instance, most defense attorneys and judges probably don't even realize that a lot of prosecutors use tainted data through illegal surveillance and parallel construction. Since this sort of action is hardly ever punished there's little wonder that they keep doing stuff like this.

wahern 7y ago
Some may not appreciate the depth of the issue, others may simply recognize that there's little that can be done. Common law courts already have relatively strong procedural protections. In some countries like the U.S. these procedural protections are at least in principal inviolable by the legislature, even when they're not explicit in the written constitution. But courts neither have the duty nor the capacity (legally or otherwise) to police everything that occurs outside their court. If the evidence presented is proper on its face, what else can they do? Judges have an independent duty to pursue the truth of the substantive legal matter, but that's distinct from actively ferreting out ancillary illegality and falsehoods. We also have an adversarial system, so there are alternatives to direct judicial oversight of the executive branch: the legislature and the defendant. Indeed, much of the evidence for illegal surveillance has come from defendants, sometimes relying on the court's subpoena powers to discover, which is a form of procedural protection. So not only are there strong procedural protections, there's someone in the court room with the duty, the motivation, and at least in principle the power to see that they're enforced. IMO, it's right and proper for courts to be sources of legal change, just don't expect it to be swift or comprehensive. The upshot is that when it does happen, it's often far more considered and secure. And this is precisely because it's slow, incremental, supported by well-vetted evidence, and spurred by manifest, not conjectured, injustice and suffering. The fact that courts only react to injustice, rather than prevent it, is something of a feature, not a bug. The fact that it's the poor that suffer injustice the most isn't something that courts can fix. Look at the right for counsel to be afforded the indigent[1]: how successful was that remedy? Not particularly so as in many places it's not only useless but used to excuse bad outcomes--"well, he did have an attorney". In jurisdictions where it works well it would have, if it hadn't already, been provided. Wealth inequality is particularly far outside the court's wheelhouse. [1] The traditional right to counsel is merely a right to hire legal representation. The right to publicly funded counsel for the indigent is a prospective remedy required by SCOTUS in 1963. Prospective remedies have poor track records. The good protections, the ones that make up traditional procedural protections, exhibit survival bias and have slowly accreted over nearly a millennia. This is why the Common Law is considered to have the strongest procedural protections--the length of time it's had to refine that aspect of the legal system. Most other Western systems were re-invented de novo in the late 18th and 19th centuries by, basically, philosophers and revolutionaries. Theory only gets you so far, and often takes you way off course.
- sjy 7y ago
  > Judges have an independent duty to pursue the truth of the substantive legal matter Do they? That sounds pretty inquisitorial, rather than adversarial, to me.
  - wahern 7y ago
    Yes, they do: http://25thandclement.com/~william/Evidence/614.pdf http://25thandclement.com/~william/Evidence/614.pdf My Evidence professor was a Virginia judge and after I submitted the above assignment[1] he actually pulled me aside before class and asked if it was original; that is, he asked me to vouch that I hadn't copied it or cheated. He seemed particularly impressed with my historical research, presumably my citations at footnotes 1 and 2. The concept wasn't new to him or even controversial--it's well established, at least as a background principle in legal procedure--but the history is esoteric. I told him that he really screwed me. Yes, it was my own research.[2] But by implying that I did such a great job he took away my motivation to keep doing that kind of research and putting in the study time. I have ADHD--though only diagnosed years later--and there are an infinite number of things I could immerse myself in. I think I ended up getting a low B or C in that class. :( Imposter syndrome is a powerful motivator and he temporarily cured me of it. [1] Every student was assigned to write a note for one or two of the Federal Rules of Civil Procedure, and they'd be published online as study aids for everyone else in the class. [2] I was up for like 16 hours powering through Westlaw and Google Books. Google Books had at the time, but for some reason no longer, an incredibly rich archive of old legal treatises and other material, like 17th and 18th century reporters from England and Ireland.[3] I'm pretty sure I kept a copy of the Wigmore treatise pdf as I later bought the domain name lextex.org with the idea to typeset it using TeX. In fact, I still want to do that and have kept renewing the domain name. I thought I had uploaded it somewhere under public_html/ but I can't find it now.... [3] On one or two occasions I found original reporters that contradicted the case reports used in legal treatises and historic judgments, including our textbooks. In several more I found potentially substantive discrepancies. In the age where judges orally recited their judgments and commercial reporters transcribed and published them, errors were to be expected. It's interesting, though, that sometimes reporters published outright contradictory legal reasoning and judgments. Legal scholars don't seem to even consider this as a possibility. It's kinda irrelevant for judges and lawyers, though, because all that matters is what the most recent authoritative court says, regardless of any inaccuracies in the cited material.

by mtgx 7y ago

wahern 7y ago

Some may not appreciate the depth of the issue, others may simply recognize that there's little that can be done. Common law courts already have relatively strong procedural protections. In some countries like the U.S. these procedural protections are at least in principal inviolable by the legislature, even when they're not explicit in the written constitution. But courts neither have the duty nor the capacity (legally or otherwise) to police everything that occurs outside their court. If the evidence presented is proper on its face, what else can they do? Judges have an independent duty to pursue the truth of the substantive legal matter, but that's distinct from actively ferreting out ancillary illegality and falsehoods. We also have an adversarial system, so there are alternatives to direct judicial oversight of the executive branch: the legislature and the defendant. Indeed, much of the evidence for illegal surveillance has come from defendants, sometimes relying on the court's subpoena powers to discover, which is a form of procedural protection. So not only are there strong procedural protections, there's someone in the court room with the duty, the motivation, and at least in principle the power to see that they're enforced. IMO, it's right and proper for courts to be sources of legal change, just don't expect it to be swift or comprehensive. The upshot is that when it does happen, it's often far more considered and secure. And this is precisely because it's slow, incremental, supported by well-vetted evidence, and spurred by manifest, not conjectured, injustice and suffering. The fact that courts only react to injustice, rather than prevent it, is something of a feature, not a bug. The fact that it's the poor that suffer injustice the most isn't something that courts can fix. Look at the right for counsel to be afforded the indigent[1]: how successful was that remedy? Not particularly so as in many places it's not only useless but used to excuse bad outcomes--"well, he did have an attorney". In jurisdictions where it works well it would have, if it hadn't already, been provided. Wealth inequality is particularly far outside the court's wheelhouse. [1] The traditional right to counsel is merely a right to hire legal representation. The right to publicly funded counsel for the indigent is a prospective remedy required by SCOTUS in 1963. Prospective remedies have poor track records. The good protections, the ones that make up traditional procedural protections, exhibit survival bias and have slowly accreted over nearly a millennia. This is why the Common Law is considered to have the strongest procedural protections--the length of time it's had to refine that aspect of the legal system. Most other Western systems were re-invented de novo in the late 18th and 19th centuries by, basically, philosophers and revolutionaries. Theory only gets you so far, and often takes you way off course.

sjy 7y ago
> Judges have an independent duty to pursue the truth of the substantive legal matter Do they? That sounds pretty inquisitorial, rather than adversarial, to me.
- wahern 7y ago
  Yes, they do: http://25thandclement.com/~william/Evidence/614.pdf http://25thandclement.com/~william/Evidence/614.pdf My Evidence professor was a Virginia judge and after I submitted the above assignment[1] he actually pulled me aside before class and asked if it was original; that is, he asked me to vouch that I hadn't copied it or cheated. He seemed particularly impressed with my historical research, presumably my citations at footnotes 1 and 2. The concept wasn't new to him or even controversial--it's well established, at least as a background principle in legal procedure--but the history is esoteric. I told him that he really screwed me. Yes, it was my own research.[2] But by implying that I did such a great job he took away my motivation to keep doing that kind of research and putting in the study time. I have ADHD--though only diagnosed years later--and there are an infinite number of things I could immerse myself in. I think I ended up getting a low B or C in that class. :( Imposter syndrome is a powerful motivator and he temporarily cured me of it. [1] Every student was assigned to write a note for one or two of the Federal Rules of Civil Procedure, and they'd be published online as study aids for everyone else in the class. [2] I was up for like 16 hours powering through Westlaw and Google Books. Google Books had at the time, but for some reason no longer, an incredibly rich archive of old legal treatises and other material, like 17th and 18th century reporters from England and Ireland.[3] I'm pretty sure I kept a copy of the Wigmore treatise pdf as I later bought the domain name lextex.org with the idea to typeset it using TeX. In fact, I still want to do that and have kept renewing the domain name. I thought I had uploaded it somewhere under public_html/ but I can't find it now.... [3] On one or two occasions I found original reporters that contradicted the case reports used in legal treatises and historic judgments, including our textbooks. In several more I found potentially substantive discrepancies. In the age where judges orally recited their judgments and commercial reporters transcribed and published them, errors were to be expected. It's interesting, though, that sometimes reporters published outright contradictory legal reasoning and judgments. Legal scholars don't seem to even consider this as a possibility. It's kinda irrelevant for judges and lawyers, though, because all that matters is what the most recent authoritative court says, regardless of any inaccuracies in the cited material.