Howard, thanks for starting the thread. It has been an interesting read, even if most of it wasn't quite what you had hoped for.
It's no surprise that ex-cops and criminal lawyers think most law students want to practice criminal law. They get positive confirmation for that idea from most of the lawyers they encounter - who are practicing criminal law. I expect a significant proportion of established lawyers are working in the field of law they want to work in. I've known and worked with a larger number of lawyers than most of you non-cop, non-lawyer types. Very few were criminal lawyers, and none of the lawyers I knew well wished they were in criminal law instead. There was a general sense that they looked down on most criminal defence lawyers. I think the reported stats from Henry 17's class are not too far out of line with the prevalent attitudes towards the practice of criminal law at the ritzier Canadian law schools. I see no reason to believe that the popularity of criminal law practice is the same in every jurisdiction or social group. Perhaps Australia's background as a dumping ground for criminals makes the role of defence attorney more socially acceptable than it is among the monied elites of southern Ontario.
I will never hire a lawyer who believes that Justice Jackson was intending to make an argument that one should never talk to police under any circumstance when he said "any lawyer worth his salt will tell the suspect in no uncertain terms to make no statement to police under any circumstances". In the first place, he was referring specifically to the advice given by counsel to suspects undergoing questioning in custody, not to anybody conversing with the police in other circumstances. Secondly the logical extension of the position he was arguing was that criminals should confess their crimes. In fact, he was writing a dissent on two of three convictions overturned by the SCOTUS. He was arguing that denial of counsel before and/or during questioning of a subject should not be grounds for making a suspect's resulting statement inadmissable, unless the questioning passed a threshold test for torture. He was arguing the cases should be decided on reliable truth. Statements obtained under torture were not reliable, but other statements obtained without counsel might be reliable, and if they were, they should be admitted as evidence. Given his view on the impact of the Due Process clause of the 14th Amendment, I'm not sure that the "Don't talk to cops" crowd should adopt Justice Jackson as their mascot. Given that his views are at odds with the established law of the US, I'm not sure his opinion should be held up as an authority.
I'm amused by General Tsao's take on Henry 17, but I can't believe he really thinks Henry is a teenager without a law degree. It's fairly obvious Henry is a roughly 40-year old UWO law grad who has underperformed his potential. But never be afraid to confront the General. We all know General Tsao's chicken.
WRT Prof. Duane, Henry 17 is correct that high academic standing at a good school doesn't automatically translate into a reliable, successful lawyer or law professor. Henry should know. Despite that, he is more correct than those who have taken him on ITT.
I'm pretty sure most people reading this thread will agree that one should not talk to police without the presence and advice of counsel when one is being questioned as a suspect in the commission of an offence. Many would go much farther than that, and some will point out that it is not always obvious whether one is considered to be a suspect. I'm going to take a different postion, one that I think is more in line with the words from the two ex law enforcement officers ITT. It is the quintessential answer to questions about how to act in poker situations: "It depends". In short, I think Henry 17 nailed it in his first post ITT, when he said
Quote:
Originally Posted by Henry17
It really depends on the situation. Having a universal rule about talk vs don't talk makes no sense unless we are talking about people too stupid to evaluate a situation in which case don't talk is the correct answer for people like that.
...
I'm going to tell the story of a time I not only talked to police without a lawyer but also consented to a search when it was quite obvious I was a possible suspect to some unknown crime.
My story takes place a few decades ago on the night of the last day of spring term at University. I lived in an isolated suburb about 25km from campus, so I had a long bus ride home that involved a transfer at a shopping mall onto a smaller bus that served my subdivision. I had gotten onto the small bus with another student whom I didn't know well. It was the last bus of the night and we had to wait for another bus to connect before the driver could begin his route. We were sitting in the bus, parked in the mall parking lot, chatting, when a police car rolled up on the passenger side of the bus. Two officers got out, one stood behind the car looking at the bus and the other one came in the front door of the bus, looked at me and the other student and said to me "Would you step outside please, and bring your bag?" He then got out of the bus and waited until I exited. Then he told me to go talk to his partner, while he got back on the bus and started talking to the other student.
The second officer asked me my name, where I was going, where I was coming from and whether I knew the other passenger. I told him my name, that I was going home, that I was coming from campus, and that I didn't know the other passenger but that I thought he was also a student at the same University and that I'd seen him on campus boarding the previous bus that had taken us to this mall. He then asked me to put my brief case on the trunk lid, open it and step away from it, which I did. He looked inside, and asked me what was in the briefcase. I told him that it was mostly files from my job with the student government, plus some course-related material. He stepped back and asked me to take out the files and notes and place them on the trunk of his car and then to step back, which I did. He asked me if there was anything else in the bag. I said no. He looked in the bag, looked at some of the files and then told me I could pack up my things and that I was free to go. I asked him what it was all about and he told me that there had been an armed robbery down the street just a few minutes ago and that I and the other passenger matched the description of the suspects. As he was saying this, the bus that our bus had been waiting for rolled in, and then left without dropping any passengers. I got on my bus and went home.
According to the "don't talk to police" crowd, I made a number of serious errors here. I don't think I did. What would have happened if I had failed to answer any questions and refused to show what was in my briefcase? Probably I would have been cuffed, put in the back sea of the cruiser, and then either had to wait for backup to arrive and be searched without my consent, or taken immediately to the police station. Being a starving student, I would have had to sit around and wait for some public defender. Then I'd probably get questioned about where I had hidden the loot, and how I could prove I had left campus when I said I did (if my lawyer would even let me say I had been on campus, and taken a bus directly from there). I might have been charged. If involuntarily searched at the mall and released, I would have had to walk home overnight 8km on unlit, skunk-infested rural roads. If taken to the station, I probably wouldn't have gotten home until the morning at the earliest.
Not only was cooperating better for me, it was also better for the rest of society. The police were able to eliminate us as suspects in the matter of only a few minutes, and then continue to hunt for the real perpetrators, rather than tie up extra resources dealing with an uncooperative suspect.
