Posts Tagged ‘criminal law’

Tasering the Fourth Amendment: What’s Everyone Complaining About . . . It’s Not Like You Got Shot?

January 27, 2011 1 comment

by Christopher Dize

By now, everyone is probably familiar with the device. It’s small, sort of squarish, sci-fi-looking, make a clicking sound when discharged . . . .

Remember the kid who cried, “Don’t tase me, bro!” at a John Kerry speech a few years ago . . . there was some clicking and then a lot of “Aaaggghhhhh!!!!”

In the United States, Tasers continue to grow in popularity with law enforcement.  As police tools, they are revered by officers for their ability to subdue suspects without causing injury.  Not just because it’s fun to zap bad guys and mouthy hecklers.

It is increasingly questionable, however, whether Tasers actually increase our safety without zapping too many of our Constitutional rights in the process.

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Prosecution v. Defense And The Constitution That Binds Them

December 20, 2010 Leave a comment

Note: this is the final part in a three-part series on the criminal justice system.  See part one: “Criminal Defense Attorneys And The People They Really Protect”; part two: “Prosecutors And The “Technicalities” That Set Criminals Free.”

Very few things in this world make me cringe more than hearing about or imagining a cold-blooded murderer or a rapist going free because of a “technicality” (the term technicality is used here for simplicity’s sake; in actuality, it is the Constitution of the United States that sets an individual free).   Reality is, in a society with such a high rate of repeat offenses, a “criminal” who walks today may be arrested again for another offense in the near future.  According to the Bureau of Justice, “67.5% of prisoners released in 1994 were rearrested within 3 years.”  Such a statistic is quite frightening.  On the other hand, according to the Christian Science Monitor, “only between 0.5 percent and 2.5 percent of all felony arrests are ‘lost’ because of unconstitutional searches” (March 9, 1995; the most recent, reliable statistic I could find).  The current percentage may be even less than that in light of the Supreme Court’s holding in Herring v. U.S. (2009), which extended the reasonable mistake in good faith exception from U.S. v. Leon (1984) to include errors made due to plain negligence.

Regardless of what the percentage is, the focus should be on eliminating all “technicalities.”  In a criminal justice system, the objective should be to attain absolute justice.  Such a notion involves lawfully apprehending wrongdoers and providing them with their day in court.  Both sides should conduct themselves professionally and reasonably so that the facts of the situation at issue may lead to a conclusion and not the facts involved in an unreasonable law enforcement mistake.  As illustrated in “Prosecutors and the ‘Technicalities’ That Set Criminals Free,” unnecessary and unreasonable mistakes can lead to convicted or confessed criminals going free.  The public should not have to pay such prices to attain justice.

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Prosecutors And The “Technicalities” That Set Criminals Free

December 16, 2010 Leave a comment

Note: this is the second part in a three-part series on the criminal justice system.  See part one: “Criminal Defense Attorneys And The People They Really Protect”; part three: “Prosecution v. Defense And The Constitution That Binds Them.”

I am sure at some point or another you have all heard stories of some murderer or pedophile going free because of a “technicality.”  And, I bet most, if not all of you, were flat out disgusted or angered by it.  Honestly, I feel the same way.  The difference with my view and the view of other commentators or individuals that I have discussed such matters with is that my anger is not always directed at the defense attorney.  Rather, my concerns lie with law enforcement and the “unreasonable” mistakes they sometimes make that result in criminals going free and recommitting offenses.

Law enforcement personnel do not have easy jobs, by any means.  Police officers and other agents make difficult and time-sensitive decisions on a daily basis; decisions that most of us would never want to make.  For these reasons, we often sympathize with officers when split second decisions turn out to be “wrong” decisions.  More importantly, the courts also take into consideration that officers make sensitive judgment calls, which often involve many different factors.  The Supreme Court of the United States has given great deference to officers and the “reasonable” mistakes they occasionally make.  This is probably not commonly known by the general public so, on a side note, most of the “technicality” hypotheticals that are floating around in casual discourse would actually not result in anyone going free.

On the other hand, there are some unnecessary mistakes that officers have made that are not reasonable and do result in bad guys walking.  Back in 1961, Justice Clark stated that “[t]he criminal goes free, if he must, but it is the law that sets him free.”  (see Mapp v. Ohio (1961)).  The “law” derives from the Constitution of the United States, which governs the very fabric of our civilized nation.  Thus, it is imperative that casual observers understand that it is the Constitution that sets a criminal free, not just some “technicality.”  Laws are in place to be followed, to govern people, and to check the amount of power given to different entities.  If law enforcement need not follow the laws, then what would that say about the amount of freedom or the rights that we have as a people?

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Criminal Defense Attorneys And The People They Really Protect

December 16, 2010 Leave a comment

Note: this is the first part in a three-part series on the criminal justice system.  See part two: “Prosecutors And The “Technicalities” That Set Criminals Free”; part three: “Prosecution v. Defense And The Constitution That Binds Them.”

As Featured On EzineArticles

At some point in your life, whether at a cocktail party, holiday party, or as part of everyday casual conversation, you have probably been involved in a discussion on criminal defense attorneys.  And at that point, you were probably either defending or criticizing defense attorneys.  Such criticism usually includes the fact that some criminal defense attorneys are just greedy individuals who will defend anyone to make a quick buck, some do not care whether a criminal is set free to harm others once more, and some may flat-out lack a conscious and will defend even repeat child molesters.  I, like many others, agree that not all criminal defense attorneys are perfect.  Unfortunately, however, nearly every profession is afflicted by individuals consumed with excessive greed, with a disregard for humanity’s well being, and with a lack of conscious that results in a disconnect between society’s mores and their own.

Nonetheless, it is important to remember that criminal defense attorneys are not just defending “criminals,” they are more importantly defending your constitutional rights.  To the average person the import of such a notion may not be as striking as it is to a student of the law, and for that reason, the forthcoming examples highlight some rights that have been defended for the good of society.  Problems here abound between the role of the government and its ever-increasing emphasis on detecting and eradicating crime versus the role of individuals and their rights to be secure in their “persons, houses, papers, and effects.”  More specifically, at some points, the government, whether advertently or inadvertently, intrudes upon the rights guaranteed to “the people” under the Fourth Amendment, which guards us from “unreasonable searches and seizures” absent “probable cause.”

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