On Thu, Feb 26, 2009 at 18:08, Kerim Aydin <ke...@u.washington.edu> wrote: > > 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
I disagree. The judge has an affirmative duty to check each possible defense emselves regardless of what the defendant says in order to avoid making an inappropriate judgment on culpability. Ideally, figures related to the case (not necessarily the defendant) will bring forward arguments to make this search easy, and if no one does, the judge can be excused for doing a poor job at finding them. In this respect, criminal ought to be similar to inquiry cases. > 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). Or, if said rule violation happens to be in your favor, people will probably assume that you're stretching the truth and you knew all along. > > 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". Let's suppose a reasonable argument existed that the action was, in fact, legal. Then, in such a case, we would be punishing the person for telling us the truth rather than lying and giving an argument they considered bogus. I don't think this result is just. > 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". The sentencing rules don't force the judge to take this factor into account at all (a sentence of APOLOGY or SILENCE is probably still appropriate), so it's not clear that an appeal could rightly remedy it. -woggle
