Hacker News Reader

Comment by hackingonempty | Hacker News Reader

Not in the USA, since the 19th century but especially since Miranda v. Arizona:

"[A]ny evidence that the accused was threatened, tricked, or cajoled into a waiver will, of course, show that the Defendant did not voluntarily waive his privilege." -Miranda v. Arizona, 384 U.S. 436, 477 (1966).

If the detectives make any kind of promises or threats then your lawyer will be able to suppress the entire interview.

Here is the waiver sheet used by the US Treasury, and this is similar to the waiver sheets used by police departments all over the USA, it reads "I understand the statement of my rights above as they have been read and explained to me and I waive them freely and voluntarily, without threat or intimidation, and without any promise of reward or immunity."

https://www.tigta.gov/sites/default/files/publications/2022-...

View on HN

The United States Courts don't think that having a 50 year sentence over your head, and being offered a 5-10 year plea deal instead, is cajoling. When you take a plea (with the judge knowing all of the above and that you were threatened with a 40 year 'trial tax' if you didn't take the plea) you literally have to swear in court no in answer to the judge asking "Has anyone forced, threatened, or coerced you in any way into pleading guilty?" even though it is the judge who will personally add 45 years to your sentence if you don't take the plea.

This falls under the "voluntariness requirement" as part of Rule 11 of the Federal Rules of Criminal Procedure. Specifically, Rule 11(b)(2) requires that the court "address the defendant personally in open court and determine that the plea is voluntary and did not result from force, threats, or promises (other than promises in a plea agreement)."

The threat of 40 years of your life (basically a death sentence, you will probably die in that time, many you know and love will die in that time, you will not be able to restart any sort of life if you don't die) because you chose to exercise your right to trial instead of pleading guilty is not considered a threat, coercion, or cajoling by the United State Federal Justice system.

This voluntariness inquiry is a key part of what's known as the "Rule 11 colloquy" - the series of questions and statements that must occur between the judge and defendant before a guilty plea can be accepted.

Plea deals/plea bargaining was not legal at the start of the United States and was actually considered unconstitutional. The practice wasn't officially recognized by the Supreme Court as legitimate until 1970 in Brady v. United States on the grounds that not EVERY plea is coercion.

https://www.law.cornell.edu/rules/frcrmp/rule_11

https://naacp.org/resources/eliminating-illegal-practice-tri...

https://en.wikipedia.org/wiki/Brady_v._United_States https://en.wikipedia.org/wiki/United_States_v._Jackson

This nonsense is why I think plea deals need to have no admission of wrongdoing. Which I know makes the name kind of vestigial but it's at least more honest about the transaction. Both sides are negotiating based on the perceived time and monetary effort, and chance of conviction.

Someone who is innocent may (unfortunately) find it their best course of action to take a plea deal and they shouldn't have to falsely admit their guilt to accept it. It's not perfect but it removes a lot of the coercive elements from the transaction.

They are considered somewhat differently which is why some statutes/laws have a clause 'or plead guilty to'.

I don't see how it removes in any way that the threat of imposition of the trial tax is a threat. If you can receive a 5 or 50 year sentence for the exact same crime, with the exact same circumstances other than taking a plea, the extra 45 years can not be considered anything but an explicit threat to take the plea. Or that pleas were considered unconstitutional at the founding of the US and only made legal in the 1960s.

The government only allows pleas for businesses that include a non admission of guilt. Admission of guilt is required as part of the Federal plea process, otherwise defendants could retain too many appeal rights (when you admit guilt from that point on you must prove a much higher 'actual innocence' legal standard on appeal and none of the easier standards like tainted evidence, corrupt officials, improper procedures can be applied to your case).

Sorry, come again? What is a "trial tax"? You mean if you opt to go to trial, plead not guilty, and you lose then they're threatening that the penalty could be more severe? Is that the "tax"?

Maybe it's just me, but if I were falsely accused, I'd take a jury trial in a heartbeat over making a false confession. Just on principle alone. I understand why a guilty defendant might take a plea bargain, but it blows my mind that this works on some people who are innocent.

Prosecutors will argue exactly your point, that no innocent person would take a plea deal or confess to a crime they didn't do. But lots of research is demonstrating the opposite. Keep in mind that once police and prosecutors believe you probably are the one who committed the crime, they will usually stop investigating any alternate theories or people, and only focus on building their case against you - and sometimes, even withhold exonerating evidence. So if you do choose a trial, everything that is presented will be pointing at you and you alone, you can try to raise an alternate theory but nobody in authority will back you up. It's a very difficult spot to be in.

No doubt it's difficult, and in countries like Russia it's downright impossible to defend your innocence successfully under such circumstances. But I think if you ever find yourself in such a situation, you have no choice but to stand on the truth, on principle. It's better to go down fighting than to submit. And in game theory terms, there is at least a potential upside to fighting the charge, even if the potential downside is worse. There is no further upside to pleading guilty to something you didn't do.

I'll tell you this... the judge could tell the jury to ignore it, or declare a mistrial, but if someone had offered me a plea bargain for something I was innocent of, I would tell the jury that I'd refused it. Whether that was stricken from the record or not, at that point you're a political prisoner and you've done all you honestly can.

Yes. In the USA the Feds set extremely high sentence lengths (30-50 years is common). They then offer a plea for 5-10. If you don't take the plea and go to trial and lose, your sentence (for the exact same crime and events that they offered you 5-10) is raised to 30-50. It is called the trail tax, you can Google it. In the US a person exercising their constitutional rights is considered during sentencing to be worth more time in prison than the actual crime/acts committed. Because remember, the judge would accept 5-10 as a reasonable sentence for the crime/acts committed IF it was a plea, but sentences to 30-50 if it is a trial. The criminal acts committed are still the same, only in one case the person has the trial tax imposed. Going to trial is considered WORSE than the crime by American judges.

You might reconsider when you and your public defender is up against the federal government that rarely loses at trial.

This is the point of trial by jury. I've served on juries, though never been tried in front of one.

If we were talking about something where I had actually broken a law, I'd expect to lose. But if it were truly a case of mistaken identity? I'd almost certainly defend myself and be confident no jury would convict me.

It's possible that a lot of people don't have sufficient skills to pore through legal books and case histories the way we pore through examples of massive SQL queries, but I'm sure I'd be up to it. And thus I would never concede to a plea bargain for something I hadn't done. Moreover, the whole concept of doing so is so anathema that I wouldn't care if it was a choice between admitting false guilt or execution (as it was in the show trials of the Soviet Union)... I would tell em to execute me. There are things I'm not willing to live with, like making a false confession, so you had better fuckin kill me.

The most tech bro hubris I've ever seen.

It's not a "tech bro" attitude to say you would prefer to die than to plead guilty to false charges. It's not a new attitude, either. It is an ancient attitude in western philosophy, going back at least to Socrates. Without individual determination to stand by the truth in the face of an arbitrary authority, there can be no just law, only power. A lot of individuals have had to die for truth and justice. Many were quite capable of defending themselves but the option wasn't available. That doesn't mean they didn't comport themselves well.

So you are cool with your mom dying alone without you there for support because you want to keep your reputation? Your dad? Your wife/kids being on their own without your support for 45 years?

You realize people that represent themselves are fools? Court isn't about smarts, it's about knowing how to play the game, your relationship with the judge, all kinds of factors. Heck if you word things just slightly wrong, you are hit and your winning argument is ignored. And a judge won't help you get to the correct wording.

What about my mom and dad's reputation? What about not wanting my kids to believe their father committed some crime? On the whole, I'd rather them know I was innocent and wrongly accused, yes.

I spoke about jury trials, not about court procedure.

When police have a false story that your own lawyer and everyone around you seems to buy, you might then falsely admit guilt. Knowing a lawyer so well that they believe your words above anyone's is a rare privilege.

Don't forget that lawyers that present cases before a judge day after day are get a form of 'the trial tax' imposed on them if they take cases to jury. They are very much biased to accept pleas.

The point of the plea deal is that you aren't pleading to "the exact same crime." For example maybe you're charged with 2nd degree murder, with extenuating circumstances of using a firearm, and that's what you'll be on trial for, facing 50 years. Unless you plead to involuntary manslaughter, with a 7 year max but the prosecutor will recommend 4 because you cooperated. Just an example, I'm making up the numbers. The whole thing is very slimy and coercive, not defending the system, I'm simply explaining why your argument is flawed.

> This nonsense is why I think plea deals need to have no admission of wrongdoing.

No. Not even close.

Instead, plea deals need to be made illegal. Prosecutors who use plea deals in more than 2% of their cases in a given calendar year should face loss of law license for life, and 10 years in prison. It should be aggressively enforced and a strict liability crime (no "I lost track" excuses).

DAs would no longer be able to prosecute as many cases if most had to be taken to trial, and they would be much less permissive of cops who were filing borderline horseshit, who were refusing to use their discretion. Legislators would be less able to keep bad laws on the books, were it not for pervasive plea bargaining.

In my own county, I heard with my own ears the DA bragging about how they do about 4000 cases per year, but take fewer than 30 to trial. Changing the ritual words that need to be spoken isn't a solution to anything.

> DAs would no longer be able to prosecute as many cases if most had to be taken to trial

That's the whole reason that the entire plea system is in place. Trials are so expensive and justice system is so inefficiently organized that everything would go to a standstill without the pleas. You'd have to first modernize justice system to work in more European way before you can abolish pleas.

So, rephrasing: fair trials in the USA are actually a comforting myth, and you won't get one. Occasionally they will do one to keep the myth alive, but the reality is that due process is dead, and if the DA accuses you of something you have no recourse. Because of some legacy paperwork, they're technically not allowed to just chuck you in the slammer unless you admit to the crime, so they threaten you until any reasonable person would confess out of self preservation.

Real bastion of freedom, the United States.

That's not how it works either.

Plea deals hold their extortive power through the fact that it's often the only way people can get out of jail pre-trial when they can't afford excessive bail. But rather than doing bail reform which would fix that problem, we have the left getting rid of bail entirely in situations where it is inappropriate to do so. This means violent criminals can wreak more mayhem while released awaiting trial so that the right can complain about it and we'll swing right back to excessive bail.

The bail bondsman industry is basically this gigantic leach sucking bail money out of our country, but it has lobbyists and can't be banned outright. Bail is not supposed to be a pre-conviction fine, but when you have to go to a bail bondsman you don't get your bail money back even if you show for trial. If you could pony up the cash in its entirety, it's just "held", and you get it if you show for trial. Even if convicted, you get it back (it's not a fine).

Making bail bonding illegal would be a good start to fixing the problem, but it's politically unviable. Attack plea bargains first, DAs and prosecutors can't put up the same kind of political fight that the bonding industry can.

Your dumb rhetoric makes the problem worse, because everyone can tell it's made up horseshit and if you're lying about the details they figure you're lying about the problem too.

Exactly.

> Trials are so expensive and justice system is so

But trials are the point. If you're not doing trials, what the fuck are you even doing? If you can only afford so many trials, then only make that many indictments, and make sure you're only indicting the ones that matter. If somehow, you still need to do more, well then this will force the public and the government to spend the money to scale up the justice system so you can do more trials.

They don't want that to happen though, because if most of these plea deals went to trial, the public would discover just how much horseshit the charges were in the first place. They don't want it, because if they went to trial we'd see so much jury nullification it would all be for nought.

> ou'd have to first modernize justice system to work in more European way

There's nothing about the European way that much impresses me. One wonders what you see in it... is it that you see the results and mistake those for a product of the system, when they're just in large part a product of a different people/culture that can't be transferred to the US no matter how much you wish it so?

> One wonders what you see in it

It's more about what I don't see. Plea deals, bail bonds industry, treating extorted confession as a solid proof, prison sentences to add up to more than a reasonable expected lifespan, discovering truth not being a goal of the trial, electability of judges, being judged by unprepared impressionable idiots aka jury. The whole thing is a sinister theatre that tries to keep the form of wild times when people didn't know any better while introducing so many ways for the parties to suck money out of the process at expense of the accuser, accused and the taxpayer. No justice system is perfect but US (and UK) one is so far that it's grotesque.

This can sometimes happen.

See https://en.m.wikipedia.org/wiki/Alford_plea

Yea, because they consider threatening death coercive. But funnily enough, a 50+ years in prison threat when the state knows you will die in prison due to age/health, not considered coercive and doesn't qualify. It's the threat of physically being put to death that puts it over the line for this sort of plea for the courts to recognize the threat being made as 'coercive'. So The Justice System absolutely understands that pleas come with implicit threats.

Or you can explain that as 'this can sometimes happen'.

> Not in the USA, since the 19th century but especially since Miranda v. Arizona

I'm not sure what you're trying to say here, because the problem did not abruptly vanish in 1966.

For example, Marty Tankleff, a then-teenager wrongfully convicted in 1990 for the murder of his parents. Even thought a defense lawyer arrived before Police lied to him that his father had named him as the attacker before falling unconscious, and even though a defense lawyer arrived before he could be tricked into signing a confession, the unsigned confession was still core to the prosecutions' case.

You were mentioning a boundary and line being drawn, I think what's trying to be said is that line is already drawn. No problem abruptly vanishes just because it becomes illegal. It doesn't help that your example is 30 years old, police and police oversight have gotten far better since then.

Do you have any evidence that police are better behaved or that oversight has improved?

There is plenty of evidence to the contrary. For example, police use civil forfeiture to steal more stuff than all criminals combined.

That wasn’t true in the 1990s.

The percentage of the population imprisoned or under some sort of parole has increased a lot in the last 30 years, either the police and the system they are part of has worsened, or the population has.

I'm betting the police.

The statistics back you up. Violent crime in the USA is about what it was in early 70s, far below it's peak in the late 80s/early 90s. [Most of the decline seems to be linked to legalized abortion and elimination of leaded gasoline.]

"If the detectives make any kind of promises or threats then your lawyer will be able to suppress the entire interview."

If you can prove it. This is often the tricky part.

This kind of interrogation is held at a police station.

They are recorded - a lot of countries outside the US actually require it be recorded and if it is not, the interview and anything said in it are simply inadmissible.

Even in the US, recording is standard practice for any meaningful felony. Unlike body worn cameras, it does not get magically lost, and when it does, the interview is generally not admitted, or a defense lawyer tears it to shreds if the detective tries to use his notes. While there are always cases of recordings "being lost" or whatever, the rate here is very low, compared to body worn cameras or anything else.

The case where they don't do recording is usually resource related.

There are around 20,000 law enforcement agencies in the US. 80% of them have less than 25 full time employees 15% of those have 1 full time employee.

While most still do recording, it might only be for major felonies or whatever because they don't have the manpower to have handle recording 24/7.

Given that, you won't achieve 100% compliance without something drastic (for example, funding and paying for 24/7 video recording in every department). Even there, at best you'll just end up with only the cases where software/hardware went wrong.

Note that i have no love for police (actually, much the opposite), but i'm also realistic - i'm not sure it's easy to solve the problem of having tons of small, low-budget police departments, be required to record.

(the UK, by comparison, has 43 regional law enforcement forces, and is down to 300 police stations or something like this)

In the USA our courts have something called 'Good Faith'. They take the word of law enforcement on 'Good faith' because they are official officers of the law. Chain of custody broken on your evidence? Well, the court will take it on 'good faith' that the police department still did things right, because otherwise they would have to throw out the case, and in the USA there is nothing worse than that. Video evidence that conflict with officer testimony? Most times the court with side with 'good faith' in the officer's testimony. Go look up 'good faith' in Lexus/Nexus and read some crazy court cases.

There are plenty of areas of the police station that do not have recorded audio. Yes, the official interview would/should, but that doesn't mean they didn't start off the record in another area.

If it's already illegal but difficult to prove then making it "even more" illegal isn't going to help.

Clear and simple rules help a lot.

If you say “I want to talk to a lawyer” - anything after that is not admissible. Full stop. This is generally enforced.

Same with Miranda warnings.

The problem is clear rules tend to be a bit arbitrary.

Can you change the wording on a Miranda warning a bit? Why that specific wording?

So instead we have very unclear, but more constitutionally rigorous rules.

I bet it would be a lot less common if evidence that it happened meant the end of the officer’s career, loss of pension, and 10 years in prison (general population, preferably with a public announcement of why they are serving time).

On top of that, they could add some sort of chain of custody for the accused. For instance gaps in the recording between arrest and trial (solo bathroom breaks and conferring with defense attorneys excepted) could mean the charges are dropped.

If it's hard to obtain or provide evidence, increasing the consequences isn't goint to be a deterrent. You have to make it easier to prove. Which means you either need to:

* Lower the standard for proof

* Make it harder to to avoid public scrutiny for covered interactions

Hold up, who said anything about merely increasing the punishment for already-illegal acts?

It's a significant difference when those acts become impractical, because you can't spout all the other smaller lies which are needed to shock and scare the victim into a state where they'll fall for the big ones.

If you can spout the big lies you can spout the small lies. The size of the lie has no impact. Preventing the lies in the first place regardless of size requires that you can

1. provide evidence of those lies.

2. create consequences for spouting the lies

Not talking to them wihthout your lawyer is a start.

Serious question: Is there any legitimate reason for such a document to exist? Why would you want to waive your right to remain silent, or your right to consult a lawyer?

Because sometimes you do not want to remain silent and instead present evidence towards your innocence, to strengthen the presumed innocence and refute the evidence towards guilt.

Yeah but a signature on that document is probably effectively binding.

It's awful hard to say they threatened you when you just signed a paper that said they didn't.

Or they can just fake your signature.

Good luck proving it's not yours.

There will be witnesses. Maybe even video of you signing something.

And that's if the judge is even acting in good faith, which is not common.

Been there, done that (forged signature on comparatively minor court documents). The lady behind the desk spent a half hour apparently not understanding how there could be a signature on that piece of paper if it wasn't mine, and all said and done the few hundred dollars the court was extorting me for were far cheaper than trying to fight it.

For prison or something, I'd hope the forged signature would be contestable for the average person, but I'm not optimistic.

This is basically a police EULA?

Who knew it was so easy to surrender your constitutional rights. Just a single signature and they are gone.

No, it is a warning and waiver not a license.

Reply on news.ycombinator.com