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ActusRhesus
Sep 18, 2007

"Perhaps the fact the defendant had to be dragged out of the courtroom while declaring 'Death to you all, a Jihad on the court' may have had something to do with the revocation of his bond. That or calling the judge a bald-headed cock-sucker. Either way."
Hello, Goons.

This is a thread for goons to help goons get a better understanding of the criminal justice system from people who actually work in the system. We've tried to gather a host of opinions from Public Defenders, Prosecutors, and Private Defense Counsel. We have goons who work in rural areas, urban areas, east coast, west coast, elected DA jurisdictions, appointed DA jurisdictions, etc. etc. to give you a wide view from many different perspectives. If you are a goon with experience in the criminal justice system and want to join our answer monkey ranks, please PM ActusRhesus with whatever background info you are willing to share, and we will be happy to add you.

Thusfar, your contributors are:

Joat Mon
Former Military trial prosecutor, Military appellate defense counsel (special (misdemeanors), general (felonies), some capital)
Former Public Defender, high crime urban area trial
Former Appellate Public Defender, appellate public defender, central US - serious juvenile and adult, misdemeanors, felonies, capital
Currently: rural area trial public defender, central US - all juvenile and adult, misdemeanor, felony

BigHead
Trial Prosecutor, Alaska mostly rural stuff, whole gamut of offenses from shoplifting to murder. "I occasionally cover appellate stuff that our appellate unit is too lazy / understaffed to handle themselves."

ActusRhesus
Former Military defense counsel (primarily misdemeanors)
Former Military trial prosecutor (primarily fraud and sexual assault)
Former private defense counsel (white collar and OFAC/ITAR)
Current Prosecutor, high crime urban area (primarily appeals, some jury trials and post conviction work, predominantly homicide.)

blarzgh
Traffic Ticket Prosecutor

nm
Former Public Defender, People's Republic of California
Current Criminal Justice Policy Monkey

Gleri
Our resident Canadian. Provincial Crown (that's canada talk for government) prosecutor in Atlantic Canada. Exclusively does criminal/quasi-criminal trials (mostly theft, impaired driving, assault, etc.) in a small-scale urban to rural setting.

What to use this thread for:

"I don't understand what x means or how y works?"
"I read about this case and I don't understand this aspect of it, is this normal?"

What not to use this thread for:

1. gently caress the Police!
2. Sucking Off the Police.
3. making GBS threads on prosecutors for being fascist bootlicking thugs.
4. Asking defense counsel "how can you live with yourself" for representing [insert client or case here]?"
5. Legal Advice for "your friend."

Plenty of other threads in which you can do all of the above.

ActusRhesus fucked around with this message at 13:43 on Jun 28, 2015

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ActusRhesus
Sep 18, 2007

"Perhaps the fact the defendant had to be dragged out of the courtroom while declaring 'Death to you all, a Jihad on the court' may have had something to do with the revocation of his bond. That or calling the judge a bald-headed cock-sucker. Either way."
Reserved in case this turns into some sort of megathread.

nm
Jan 28, 2008

"I saw Minos the Space Judge holding a golden sceptre and passing sentence upon the Martians. There he presided, and around him the noble Space Prosecutors sought the firm justice of space law."
I'm not cool enough for OP and am a sellout.

Edit: NWA was right.

Edit2:
Former High Crime Suburban PD
Former low crime misdo prosecutor (for 5 seconds)
Current touchy feely government policy nerd in criminal law.


Edit3: Still don't go to law school.

nm fucked around with this message at 17:45 on Jun 21, 2015

Phil Moscowitz
Feb 19, 2007

If blood be the price of admiralty,
Lord God, we ha' paid in full!
Criminal lawyers aren't actually real lawyers, real lawyers represent corporate entities and suck from their corrupt teats.

nm
Jan 28, 2008

"I saw Minos the Space Judge holding a golden sceptre and passing sentence upon the Martians. There he presided, and around him the noble Space Prosecutors sought the firm justice of space law."

Phil Moscowitz posted:

Criminal lawyers aren't actually real lawyers, real lawyers represent corporate entities and suck from their corrupt teats.

Criminal lawyers get to wear pasley ties and spectator shoes. You're just jealous.

Phil Moscowitz
Feb 19, 2007

If blood be the price of admiralty,
Lord God, we ha' paid in full!
"Criminal lawyer" is a bit redundant don't you think??

Baron Porkface
Jan 22, 2007


Do Public Defenders have a real incentive to do their job properly?

Hard mode: Don't BS about professional integrity or peer respect.

PT6A
Jan 5, 2006

Public school teachers are callous dictators who won't lift a finger to stop children from peeing in my plane
How common is it for people to look down on defence lawyers because they "defend bad people"? Do people not understand that the only way to defend the wrongly accused is to ensure that everyone receives as strong a defence as possible?

On a similar issue, how would you recommend reducing or eliminating the large advantage that the wealthy enjoy when it comes to interactions with the criminal justice system?

ActusRhesus
Sep 18, 2007

"Perhaps the fact the defendant had to be dragged out of the courtroom while declaring 'Death to you all, a Jihad on the court' may have had something to do with the revocation of his bond. That or calling the judge a bald-headed cock-sucker. Either way."

Baron Porkface posted:

Do Public Defenders have a real incentive to do their job properly?
Hard mode: Don't BS about professional integrity or peer respect.

Honestly, I think most public defenders I have squared off against were very competent and do what they do out of a sincere respect for the constitutional rights of the accused. Also, the myth of the incompetent public defender, at least here, is really inaccurate. The legal job market is poo poo, and these are reasonably well paying jobs (by statute, prosecutors and PDs of the same seniority make exactly the same in this jurisdiction) with no billable hour requirement, full medical and dental, reasonable work hours, and solid retirement plans. I'm not so sure it's an "incentive" issue so much as it is the people landing these jobs generally don't suck.


PT6A posted:

How common is it for people to look down on defence lawyers because they "defend bad people"? Do people not understand that the only way to defend the wrongly accused is to ensure that everyone receives as strong a defence as possible?
On a similar issue, how would you recommend reducing or eliminating the large advantage that the wealthy enjoy when it comes to interactions with the criminal justice system?

You'd be surprised. Most rational people get that, but throw an emotional case like child molestation into the mix and people tend to lose their ability to think rationally. As to your second question, I don't think the wealthy have as much of an advantage over indigents as people think. The ones who are a little S.O.L are the ones who have enough money to not qualify for a PD, but not enough to fund tons of experts and investigators etc. etc. But as noted above, in my experience, public defenders are just as good, and in many cases better than many private counsel. They are, however, overworked. (Though I would also point out that this is true of the prosecutors in many jurisdictions too....we have only slightly more attorneys than the PD office, but we have to take all cases, including the ones that either have retained counsel, or the PD's office has contracted out due to a conflict of interest) So I suppose the two things I would look to do would be 1) add more PD resources. and 2) create a separate funding line for expert witnesses for defendants who fall in that middle income range, overseen by the PDs office. (Example, defendant submits request through counsel to PD's office. PD's office reviews it to see if request is reasonable, and then authorizes funding)

ActusRhesus fucked around with this message at 22:36 on Jun 21, 2015

Look Sir Droids
Jan 27, 2015

The tracks go off in this direction.

Baron Porkface posted:

Do Public Defenders have a real incentive to do their job properly?

Hard mode: Don't BS about professional integrity or peer respect.

That second part isn't a joke or BS. I know its easy to eyeroll at from outside the profession, but that's because other professions don't have any of it.

nm
Jan 28, 2008

"I saw Minos the Space Judge holding a golden sceptre and passing sentence upon the Martians. There he presided, and around him the noble Space Prosecutors sought the firm justice of space law."

Baron Porkface posted:

Do Public Defenders have a real incentive to do their job properly?

Hard mode: Don't BS about professional integrity or peer respect.

Yes and you know people who choose to get paid government wages for 300+ caseloads, stress, and a thankless job might actually care about professional integrity and keeping the system honest.
And I say choose because PDs offices get 100s of apps per open spot so they have the pick of the litter. This is important, no one is getting a PD job because they can't get any other job.
Also PDs offices do generally care about how many cases you take tp trial.
From a practical perspective, if you are known as someone who fights hard, you will tend to get better deals (or outright dismissals), which means clients are more likely to happily take a deal, which means less work long term.

[ quote="PT6A" post="446859134"]
How common is it for people to look down on defence lawyers because they "defend bad people"? Do people not understand that the only way to defend the wrongly accused is to ensure that everyone receives as strong a defence as possible?

On a similar issue, how would you recommend reducing or eliminating the large advantage that the wealthy enjoy when it comes to interactions with the criminal justice system?
[/quote]
All the loving time. Not much within the legal profession though.

As for eliminating the advantage, get rid of cash bail. Seriously, take two identical clients, one in one out, and the one out of custody will get a better deal every day of the week.
The out of custody defendants also is more likely to go to trial and it is way easier to prepare a case out of custody.
You need to raise the income limit for the PD. The people who really get screwed make a couple bucks more than the PD limit. They get some chucklefuck who works cheap, they can't afford a trial, much less experts.
In California, we get the same pay as DAs, but not the funding. This is a problem. Yes, the DA handles more cases, but they generally need to spend less time per case, in many cases all or most of the investigation has been done by another agency (and funding source), same with some, but not all experts.

Also in California, and this impacts everyone, not just the jails, there needs to be some prosecutor disbarred and maybe imprisoned. There is a culture of hiding evidence, falsifying evidence and other ahit combined with a knowledge that nothing will happen if they get caught.

nm fucked around with this message at 23:33 on Jun 21, 2015

BigHead
Jul 25, 2003
Huh?


Nap Ghost

Baron Porkface posted:

Do Public Defenders have a real incentive to do their job properly?

Hard mode: Don't BS about professional integrity or peer respect.

Incentive? They're lawyers, they took an oath to defend their clients rigorously. And they do it very well every day despite having thankless jobs (which I thank them for).

Vox Nihili
May 28, 2008
Do prosecutors have a real incentive to do their job properly?

Hard mode: Don't BS about professional integrity or peer respect.

nm
Jan 28, 2008

"I saw Minos the Space Judge holding a golden sceptre and passing sentence upon the Martians. There he presided, and around him the noble Space Prosecutors sought the firm justice of space law."

Vox Nihili posted:

Do prosecutors have a real incentive to do their job properly?

Hard mode: Don't BS about professional integrity or peer respect.

Define properly.

Edit: to be clear this is a serious question.

nm fucked around with this message at 05:28 on Jun 22, 2015

Baron Porkface
Jan 22, 2007


Is the large prison population in the U.S a good thing?

jokes
Dec 20, 2012

Uh... Kupo?

When dealing with highly paid defense attorneys, do they seem to be particularly more skilled/smart than other attorneys or is it more that they know judges/other attorneys/cops so they have a more commanding presence compared to other attorneys?

Soothing Vapors
Mar 26, 2006

Associate Justice Lena "Kegels" Dunham: An uncool thought to have: 'is that guy walking in the dark behind me a rapist? Never mind, he's Asian.

Vox Nihili posted:

Do prosecutors have a real incentive to do their job properly?

Hard mode: Don't BS about professional integrity or peer respect.

Racism?

yronic heroism
Oct 31, 2008

This will prob mostly be a thread for lawgoons to troll one another.

WHAT A GOOD DOG posted:

When dealing with highly paid defense attorneys, do they seem to be particularly more skilled/smart than other attorneys or is it more that they know judges/other attorneys/cops so they have a more commanding presence compared to other attorneys?

Here is how I see it.

They will just have more experience than private attorneys with a lower rate. That's helpful but not a guarantee they will do a good job. They may have a good track record but some won't. It's also helpful to not be as overloaded as a PDs office, so if the client can afford to shell out a big retainer there is nothing to stop his lawyer from putting a lot of time into trial prep to earn that cash. But define highly paid criminal defense attorney. Because maybe there are a few exceptions for someone in a biglaw firm representing the ultra rich (but not too sure there's many like that who only do criminal, but if someone is really a hot poo poo trial attorney who bills $1000/hr they should be able to handle a criminal trial just fine even if they're mostly civil). But my answer assumes someone billing maybe $400/hr which is high (depending on geography) but not orders of magnitude higher than a normal rate. It's pretty hard to charge more than a market rate unless you are really dealing with a client where money is no object.

Tldr it doesn't have to do with knowing anyone but it probably means they get pretty good results for the money. They may just be charging more because they've been around awhile though.

yronic heroism fucked around with this message at 16:32 on Jun 22, 2015

Pook Good Mook
Aug 6, 2013


ENFORCE THE UNITED STATES DRESS CODE AT ALL COSTS!

This message paid for by the Men's Wearhouse& Jos A Bank Lobbying Group
To me it seems that the biggest advantage knowing/having a private defense attorney is that they are quicker to respond in the early stages of a criminal trial.

What comes to my mind is your standard DUI case. Someone who knows who their lawyer is will call them first and the lawyer can work on building a case from the first night they're in jail (assuming they take midnight phone calls), whereas by the time you've had a PD assigned the damage is done and the only major thing to fight about is admissability of evidence the police already have.

Let me know if I'm way off base though.

blarzgh
Apr 14, 2009

SNITCHIN' RANDY
Grimey Drawer
How many of you have actually dealt with Sovereign Citizens before? In this Texas municipal Court conference, when asked, like 75% of the prosecutors here raised their hands.

Pook Good Mook
Aug 6, 2013


ENFORCE THE UNITED STATES DRESS CODE AT ALL COSTS!

This message paid for by the Men's Wearhouse& Jos A Bank Lobbying Group

blarzgh posted:

How many of you have actually dealt with Sovereign Citizens before? In this Texas municipal Court conference, when asked, like 75% of the prosecutors here raised their hands.

I'm a lowly 2L working as a summer intern for a federal judge.

I worked on a soverign citizen case on my 3rd day.

BigHead
Jul 25, 2003
Huh?


Nap Ghost

blarzgh posted:

How many of you have actually dealt with Sovereign Citizens before? In this Texas municipal Court conference, when asked, like 75% of the prosecutors here raised their hands.

I get about three per year, but I deal with nut jobs who live in the woods a hundred miles outside of civilization (and then come to town where they run over people while driving their rental car drunk) so my stats are high I'm sure. I honestly can't think of a prosecutor who hasn't at least run into one in court. Thankfully we have a prosecutor in the office who is a glutton for punishment and finds those guys hilarious so he volunteers to have all their cases assigned to him.

yronic heroism
Oct 31, 2008

blarzgh posted:

How many of you have actually dealt with Sovereign Citizens before? In this Texas municipal Court conference, when asked, like 75% of the prosecutors here raised their hands.

Dealt with? Not directly, but you better believe I'll take a few minutes to watch court every few months when I hear something with a Sov is going down.

PT6A
Jan 5, 2006

Public school teachers are callous dictators who won't lift a finger to stop children from peeing in my plane

BigHead posted:

I get about three per year, but I deal with nut jobs who live in the woods a hundred miles outside of civilization (and then come to town where they run over people while driving their rental car drunk) so my stats are high I'm sure. I honestly can't think of a prosecutor who hasn't at least run into one in court. Thankfully we have a prosecutor in the office who is a glutton for punishment and finds those guys hilarious so he volunteers to have all their cases assigned to him.

Sounds like a decent way of padding one's win record, as I can't imagine any of those nuts actually win their cases.

AndNowMax
Sep 25, 2009

Fighting the fight for *mumble* *mumble*

Pook Good Mook posted:

To me it seems that the biggest advantage knowing/having a private defense attorney is that they are quicker to respond in the early stages of a criminal trial.

What comes to my mind is your standard DUI case. Someone who knows who their lawyer is will call them first and the lawyer can work on building a case from the first night they're in jail (assuming they take midnight phone calls), whereas by the time you've had a PD assigned the damage is done and the only major thing to fight about is admissability of evidence the police already have.

Let me know if I'm way off base though.

This may be somewhat true in a case with an ongoing investigation, but doesn't really apply to DWIs. If you're calling your lawyer from jail after getting arrested for DWI then the police already have all the evidence they're going to get. Your lawyer hearing about it that night versus a PD hearing about it a month later wont really make a huge difference, assuming both are competent.

Phil Moscowitz
Feb 19, 2007

If blood be the price of admiralty,
Lord God, we ha' paid in full!

PT6A posted:

Sounds like a decent way of padding one's win record, as I can't imagine any of those nuts actually win their cases.

Yeah but you are playing a dangerous game. All it takes is a judge waking up on the wrong side of the bed and then you are the idiot who lost an argument to a sov citizen, up on the wall of shame you go.

seacat
Dec 9, 2006
For a serious case (felony) would you rather defend someone you know for a fact is guilty or someone you know for a fact is innocent?

What about if you were prosecuting it?

ActusRhesus
Sep 18, 2007

"Perhaps the fact the defendant had to be dragged out of the courtroom while declaring 'Death to you all, a Jihad on the court' may have had something to do with the revocation of his bond. That or calling the judge a bald-headed cock-sucker. Either way."

seacat posted:

For a serious case (felony) would you rather defend someone you know for a fact is guilty or someone you know for a fact is innocent?

What about if you were prosecuting it?

If I don't think someone is guilty I nolle the charges. As for defense, there is nothing more terrifying than representing someone you believe is innocent.

PT6A
Jan 5, 2006

Public school teachers are callous dictators who won't lift a finger to stop children from peeing in my plane

Phil Moscowitz posted:

Yeah but you are playing a dangerous game. All it takes is a judge waking up on the wrong side of the bed and then you are the idiot who lost an argument to a sov citizen, up on the wall of shame you go.

Never thought about it that way. You're probably right.

Though I imagine you have a safety margin, since even if the judge is in a very bad mood, he's likely to get pissed off with the sovereign citizen before anyone else.

AndNowMax
Sep 25, 2009

Fighting the fight for *mumble* *mumble*

PT6A posted:

Sounds like a decent way of padding one's win record, as I can't imagine any of those nuts actually win their cases.

Maybe, but it's like playing Street Fighter 2 against your little brother who just mashes the buttons and cries to your mom when you won't let him win. Generally more trouble than it's worth.

yronic heroism
Oct 31, 2008

AndNowMax posted:

This may be somewhat true in a case with an ongoing investigation, but doesn't really apply to DWIs. If you're calling your lawyer from jail after getting arrested for DWI then the police already have all the evidence they're going to get. Your lawyer hearing about it that night versus a PD hearing about it a month later wont really make a huge difference, assuming both are competent.

Unless you are in a jurisdiction where there is a pre-testing right to counsel(even though refusal to take the breath test is a crime so a defense lawyer isn't actually supposed to advise the client not to test). Really the most the lawyer can do in this situation is waste like a half hour talking on the phone so the BAC level falls a little before the test. And your average drunk can usually just do that by trying to call lawyers at midnight and failing.

Monaghan
Dec 29, 2006

PT6A posted:

Never thought about it that way. You're probably right.

Though I imagine you have a safety margin, since even if the judge is in a very bad mood, he's likely to get pissed off with the sovereign citizen before anyone else.

It canada, sovereign citizens were so plentiful that one Alberta judge wrote a 700+ paragraph decision that refuted pretty much every one of their arguments.

http://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html?autocompleteStr=meads&autocompletePos=2

Now whenever they show a up a judge can just go " your argument is groundless, please refer to meads."

Pook Good Mook
Aug 6, 2013


ENFORCE THE UNITED STATES DRESS CODE AT ALL COSTS!

This message paid for by the Men's Wearhouse& Jos A Bank Lobbying Group

yronic heroism posted:

Unless you are in a jurisdiction where there is a pre-testing right to counsel(even though refusal to take the breath test is a crime so a defense lawyer isn't actually supposed to advise the client not to test). Really the most the lawyer can do in this situation is waste like a half hour talking on the phone so the BAC level falls a little before the test. And your average drunk can usually just do that by trying to call lawyers at midnight and failing.

My limited experience comes from Iowa where there is a limited pre-test right to counsel. Spoke with a private defense attorney who said that when it comes to the test his advice varies based on how many prior DUI's the client has; the penalty for refusing the test doesn't scale based on priors while the punishment for the DUI itself does.

First Time: Take the test
Second Time: 50/50
Third: Don't take the test

I'm sure he's more diplomatic then outright saying "Don't take the test"

PT6A
Jan 5, 2006

Public school teachers are callous dictators who won't lift a finger to stop children from peeing in my plane

Monaghan posted:

It canada, sovereign citizens were so plentiful that one Alberta judge wrote a 700+ paragraph decision that refuted pretty much every one of their arguments.

http://www.canlii.org/en/ab/abqb/doc/2012/2012abqb571/2012abqb571.html?autocompleteStr=meads&autocompletePos=2

Now whenever they show a up a judge can just go " your argument is groundless, please refer to meads."

No way they're more plentiful in Canada, even Alberta, than in the US. First of all, half of that moron's arguments (the one who the judge is talking about, not the judge himself, who is witty and hilarious) seem based on a bizarre conception of US jurisprudence anyway, and second of all, that's only the second sovereign citizen I've ever heard of (another one claimed his rental apartment was an embassy or his personal sovereign nation or some rubbish, in order to avoid eviction).

Could a US judge refer to a Canadian case as a precedent where there are no substantive differences between the laws in question? I think Canadian judges are allowed to refer to cases in other commonwealth nations (and possibly the US?) but I'm not certain.

EDIT: Regarding DUI, it seems like there are a lot of abuses on both sides that would be illegal in other circumstances. For example, here in Alberta, you can have your car towed and license suspended as an administrative penalty without being over the DUI limit, and you have no legal recourse. Likewise, failure to provide a breath sample (even if you literally cannot do so, as in the case of one woman who had COPD) can result in your license being suspended until your trial, as does any charge of DUI regardless of circumstance. At least up here, it seems like the deck is so stacked against people accused of DUI that I don't mind defence lawyers having a few tricks up their sleeve to balance it out. In our haste to stamp out the dangerous practice of driving drunk, it seems like we've gone a bit crazy, at least to me. What are your professional opinions of the current state of DUI laws?

PT6A fucked around with this message at 19:24 on Jun 22, 2015

AndNowMax
Sep 25, 2009

Fighting the fight for *mumble* *mumble*

yronic heroism posted:

Unless you are in a jurisdiction where there is a pre-testing right to counsel(even though refusal to take the breath test is a crime so a defense lawyer isn't actually supposed to advise the client not to test). Really the most the lawyer can do in this situation is waste like a half hour talking on the phone so the BAC level falls a little before the test. And your average drunk can usually just do that by trying to call lawyers at midnight and failing.

Yeah, and you bring up another good point: so much of this is jurisdictional. Local practices can change drastically from city to city, let alone from state to state, and part of what makes a good defense attorney is their experience with the local culture and their ability to guide their clients through it. Incidentally this is an area PDs have an advantage, as they tend to practice intensely in one place.

Not a Children
Oct 9, 2012

Don't need a holster if you never stop shooting.

What do you think will be the long-term consequences of having the legal profession flooded with underemployed (and, if the pessimists are to be believed, underqualified) lawyers?

Kalman
Jan 17, 2010

Not a Children posted:

What do you think will be the long-term consequences of having the legal profession flooded with underemployed (and, if the pessimists are to be believed, underqualified) lawyers?

The flood is the long-term consequence of a shift in legal employment, it isn't the other way around.

That said: fewer people will go to law school, and rates for contract attorneys will get even lower. Minimum wage JD-required jobs ahoy!

Discendo Vox
Mar 21, 2013

We don't need to have that dialogue because it's obvious, trivial, and has already been had a thousand times.

PT6A posted:

Could a US judge refer to a Canadian case as a precedent where there are no substantive differences between the laws in question? I think Canadian judges are allowed to refer to cases in other commonwealth nations (and possibly the US?) but I'm not certain.

As nonbinding guidance, or as an external reference source- same as other non-US sources or to an extent out of state or circuit.

Gleri
Mar 10, 2009

PT6A posted:

No way they're more plentiful in Canada, even Alberta, than in the US. First of all, half of that moron's arguments (the one who the judge is talking about, not the judge himself, who is witty and hilarious) seem based on a bizarre conception of US jurisprudence anyway, and second of all, that's only the second sovereign citizen I've ever heard of (another one claimed his rental apartment was an embassy or his personal sovereign nation or some rubbish, in order to avoid eviction).

Could a US judge refer to a Canadian case as a precedent where there are no substantive differences between the laws in question? I think Canadian judges are allowed to refer to cases in other commonwealth nations (and possibly the US?) but I'm not certain.

EDIT: Regarding DUI, it seems like there are a lot of abuses on both sides that would be illegal in other circumstances. For example, here in Alberta, you can have your car towed and license suspended as an administrative penalty without being over the DUI limit, and you have no legal recourse. Likewise, failure to provide a breath sample (even if you literally cannot do so, as in the case of one woman who had COPD) can result in your license being suspended until your trial, as does any charge of DUI regardless of circumstance. At least up here, it seems like the deck is so stacked against people accused of DUI that I don't mind defence lawyers having a few tricks up their sleeve to balance it out. In our haste to stamp out the dangerous practice of driving drunk, it seems like we've gone a bit crazy, at least to me. What are your professional opinions of the current state of DUI laws?

In terms of referencing decisions from other jurisdictions, there's two things going on in Canadian jurisprudence. First, judges like to reason from authority and on the basis of precedent; nobody wants to be the first person to deal with something. There are two types of precedent: binding precedent as from a higher court to a lower court and persuasive precedent as from one court not in the same hierarchy (or lower in that hierarchy) to another. Even if a judge isn't bound by any decisions regarding a particular issue they can and will look to see if anyone else has dealt with the same problem and see what their solution was. Judges tend to prefer decisions made by judges in the most similar circumstances they can find, so they will prefer Canadian decisions over foreign decisions. But, if something has not been dealt with in Canada they will of course have to look outside to other jurisdictions with relatively similar laws and circumstances.

This is not all that unusual in Canada though it is by no means the norm and would be really strange in any run-of-the-mill situation. You'll mostly see references to other common law decisions at the Supreme Court level when judges are dealing with things that haven't really been previously addressed in Canadian law. As a completely off-the-cuff estimate I'd say the most commonly referenced non-Canadian jurisdictions are the UK, then the US and then Australia. It probably happens more in smaller jurisdictions, like Canada, than in the United States just because there's far more of a chance that some American court will have dealt with any given situation, legal and/or factual previously. The US is massive relatively speaking and has a load of different jurisdictions (50 states, multiple federal circuits, etc.). Canada only has one criminal law covering the entire country and in general only has two layers of appeal for serious criminal cases so there's a lot less law happening.

The other thing that happens is since Canada was formerly part of the British Empire we have lots of old Imperial law still kicking around. The highest court of appeal in Canada was the Judicial Committee of the Privy Council until 1949 so their decisions and case law still form the bedrock of a lot of contemporary law. Moreover, judges adopted a lot of Imperial law even if it wasn't strictly speaking binding because they felt it was the most similar and appropriate. As an example of this from criminal law, the law dealing with the admissibility of confessions by the accused to police in Canada originates in a 1914 case called Ibrahim v. the King which dealt with the murder trial in Hong Kong of an Afghan soldier in the British Army.

About the DUI stuff, I'd just note that having your license suspended is an administrative matter, not a criminal matter, and would be done by the relevant provincial authorities. That is to say, it's very likely, though I don't actually know how Alberta works, done by a completely separate group of people from the police and the Crown who would not at all be communicating with each other. The province can suspend a driver's license, in general, for any number of reasons. In regulated activities like driving the government has a lot broader powers to tell people what to do than in non-regulated contexts. You do not have a right to drive a car; that's why you need a license. If the government thinks you might be a danger on the roads I think it's sensible to suspend your license and to wait and see the outcome of the trial. I don't at all see how that stacks the deck against a criminal defendant in a separate preceding for impaired driving.

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PT6A
Jan 5, 2006

Public school teachers are callous dictators who won't lift a finger to stop children from peeing in my plane

Gleri posted:

About the DUI stuff, I'd just note that having your license suspended is an administrative matter, not a criminal matter, and would be done by the relevant provincial authorities. That is to say, it's very likely, though I don't actually know how Alberta works, done by a completely separate group of people from the police and the Crown who would not at all be communicating with each other. The province can suspend a driver's license, in general, for any number of reasons. In regulated activities like driving the government has a lot broader powers to tell people what to do than in non-regulated contexts. You do not have a right to drive a car; that's why you need a license. If the government thinks you might be a danger on the roads I think it's sensible to suspend your license and to wait and see the outcome of the trial. I don't at all see how that stacks the deck against a criminal defendant in a separate preceding for impaired driving.

Depending on the circumstances, those administrative powers seem reasonable, but I think they're being abused at the moment. You now must have your license suspended over 0.05 even though it's only against the law to drive over 0.08 (or otherwise impaired), and any circumstances which result in not giving a breath test result in an indefinite suspension regardless of whether charges are appropriate. Like the woman who had COPD and could literally not provide an adequate breath sample.

I'm not defending drunk driving at all; it's a crime, I don't do it (even if I suspect I'm over 0 but under 0.05), I've reported suspected drunk drivers to 911, and I wish we could eliminate it. I just think the processes that go on around it, whether administrative or criminal in nature, are pretty deeply hosed up. It's too easy for an innocent person to get hosed over, and too easy for a guilty person to get off -- the worst of all worlds.

And, ultimately, it seems like it's being used as a cash cow more than in the interest of public safety in some jurisdictions. I don't think the criminal justice system should work that way.

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