On Thu, 26 Feb 2009, Charles Reiss wrote: > I think plainly this is not what R1504(d) says since it considers > whether some hypothetical situation exists where the defendent could > have believed it did not violate the rule. This perhaps does not > excuse them for violations after research, but ought to excuse them > when others who did the same research may have concluded that "no, it > did not violate the rule".
Part of the *whole point* of this is that the defendant had a chance to raise any or all of these defenses! If e doesn't, it's appropriate for the judge to find against em. The judge had a confession that was pretty deliberate-looking. Look: if a defendant specifically says "I'm going to withhold evidence or give a false confession just to see what the court does", that's eir own business; allowing em to do so and then penalizing the judge (for it does penalize the judge to overturn a case) is not reasonably just. > And, anyways, I do not think it is in the best interest of the game to > limit the R1504(d) defense like this: doing so encourages people to > hide their knowledge: if you ever believe that something you and > others do violates a rule, you're better off pretending not to know > about it or to have the contrary interpretation, for otherwise such > evidence might be used against you in a future criminal case. No, you're best off saying "hey, I just learned that doing this violates a rule. I haven't done it since I learned that, and I'm telling others so they can avoid it too (or change the rule; if it's unavoidable, (e) kicks in). And again, I'm not even saying that a confession of "hey, I think this might violate the rule, but I'm not sure so I'm trying anyway" should be considered a confession; I'm talking about confessions like "ha ha, I did it anyway". And what's wrong with addressing this in a sentencing appeal, anyway (e.g. "yes e technically could have known, but it's because e took the advice of others, so DISCHARGE is just fine"). I'm leery of setting culpability decisions that allow people to hide behind "hey, I kinda knew this was illegal but wasn't sure, so I couldn't have known". -Goethe
