On Thu, 26 Feb 2009, Charles Reiss wrote: > 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.
Then you and I firmly disagree. It used to be that a judge was permitted to DISMISS a case (criminal or inquiry) with the words "the Caller didn't do eir homework or present a case." It is a recent style, driven in part by laziness on the part of the Callers and what was initially courtesy on the part of the judges, that has led us to degrade Callers' evidence standards to almost nothing. It is not specifically in the rules that the judge has to do all the work! I attempted to bring some sanity back to the judge's burden with explicitly legislating UNDETERMINED where the Caller was lazy, though that's for Inquiries only. In this case, the judge was presented with direct and specific evidence that (d) was satisfied in the form of an undisputed confession - why should e be required to dig farther than that: should e magically divine that the confession was wrong? Or should e be required to say "did you really mean it? I mean, really really mean it?" >> 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. We might sort of assume that, but our culture is to assume that such statements aren't lies. If Sgeo had said at any point before the verdict "I didn't mean it, I was testing a point" I would accept it immediately. If we allow this after-the-verdict addition, what's to keep a defendant from purposefully withholding evidence, then appealing the verdict with the new evidence in the hope of dinging the judge with an overturn penalty (which now includes a decrease in Court ranking). >> 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. If the action turns out to be illegal (despite a reasonable argument for legality) and the person says that e definitely thought it was illegal and did it on purpose thinking it was illegal, Guilty. If e expresses doubts about illegality (again, before the trial) then not guilty. If I was being mean, I'd say e could be dinged for misleading the judge into taking the confession at face value! >> 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. If you don't thing the result is "just", as you say above, then a sentence of DISCHARGE is appropriate because another result would be "manifestly unjust". -Goethe
