Thursday, January 17, 2013

The New Miranda Warning (Cicchini)

Miranda has one foot in the grave.  Even a casual read of the Miranda warning reveals that it is incomprehensible to most suspects, lawyers, and even judges.  The warning is also grossly inaccurate and incomplete with regard to the rights it purports to describe.  Further, the warning makes it incredibly difficult for a suspect to actually invoke any of the underlying rights, and provides the police with numerous ways to circumvent the law.  My newest article  describes these problems, and rewrites the Miranda warning in order to make it clear, accurate, and complete.  The new proposed warning also provides suspects with a way to actually invoke their rights, and prevents governmental abuse of the Fifth Amendment.  Full article available here.  

Monday, January 14, 2013

Overcoming Miranda (Domanico, Cicchini & White)

The authors analyzed the Miranda portions of electronically recorded police interrogations in serious felony cases.  The objectives were to determine what percentage of suspects waived their rights, whether the suspects understood their rights before waiving them, and whether the police employed any tactics to induce the suspects to waive their rights.  The results of the study revealed that 93% of suspects waived their Miranda rights and talked to the police.  Further, it is unlikely that those suspects understood their rights; in fact, the police used a version of the Miranda warning that required a reading level that far exceeded that of most suspects, and the police did very little to ensure that suspects actually understood their rights before waiving them.  Finally, the police spoke significantly faster when reading suspects their Miranda rights, and, in more than half of the interrogations, also minimized the importance of the rights.  Both of these tactics likely limited the suspects’ comprehension of the rights and their importance, and likely induced them to waive, rather than invoke, their rights.  These findings are largely consistent with the limited number of other social science studies that have been published, and raise serious doubt about whether suspects’ waivers are truly voluntary, knowing, and intelligent, as required by Miranda.  Based on these findings, the authors also recommend specific reforms to the Miranda process.  Full article available here.  

Saturday, January 5, 2013

Judicial do over

Criminal procedure can be incredibly harsh and unforgiving for defendants and their lawyers.  If a defense lawyer makes the smallest misstep, or fails to do or say just the right thing at just the right time, he can inadvertently “waive” his client’s rights and protections, often with disastrous outcomes.  But, when it comes to judges, the law is much more forgiving.  In State v. Robinson the judge sentenced the defendant to a multi-year term of confinement.  The defendant was hauled out of the courtroom and straight to jail to begin serving her time.  But the judge slept on it, had second thoughts, and decided that he wanted a “do over.”  So the next day he had the deputies haul the defendant out of jail and back into court, where he re-sentenced her and gave her an additional nine months. 

Lawyer salaries: going, going . . . gone

A couple of years ago, some members of the Wisconsin Bar were putting up a stink about the low hourly wage paid to appointed attorneys who represent indigent citizens accused of crimes.  I wrote about it on the MU Faculty Blog, and made the prediction that the state government would not raise this pay rate, which has been unchanged for decades.  And not only was that prediction correct—I’m not taking credit for reading the future; the prediction was easy and obvious—but since that time, lawyer wages have fallen even further.  Many employers, including the government, are now advertising lawyer jobs where the salary is—you guessed it—zero.

Double Standards in Legal Ethics

When reading my $500 per year Wisconsin Lawyer Magazine—which appears to be free to everyone who does not pay bar dues—I saw an article about an out-of-state lawyer discipline case.  The lawyer was publicly censured, fined, and got stuck with “the cost of the proceeding” for some advertising claims that were confusing, probably misleading, and, in some cases, false.  Here’s an example: “the lawyer stated that attorneys in the firm focused their practice in one area of law, but the firm’s web page listed 27 distinct practice areas.”  Obviously, the word “focused” could have different meanings to different people.  For example, some attorneys in the firm may spend half of their time in a single area, thus qualifying as a “focus,” while still practicing in multiple other areas of law for the other half of their work.  Alternatively, maybe some of the firm’s lawyers do “focus” exclusively on one area, while other members don’t focus and instead practice multiple areas of law.  So why was the lawyer disciplined?