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June 17, 2024
"Illegitimate Choices: A Minimalist(?) Approach to Consent and Waiver in Criminal Cases"
The title of this post is the title of this new paper authored by Christopher Slobogin and Kate Weisburd now available via SSRN. Here is its abstract:
Current doctrine justifies many government searches, interrogations, and deprivations of liberty on the ground that the target of the action “voluntarily” agreed to it or waived applicable rights. The standard critiques of this doctrine — that these choices are often or always coerced, the result of an unconstitutional condition, or inherently shaped by race, gender, and class — have usually been given short shrift by the courts, leading one of us to question whether the practice of using consent and waiver to deprive someone of basic rights and liberties should be abolished. In the meantime, we jointly wondered if there is a more immediate “minimalist” path forward, drawing on the Supreme Court’s own jurisprudence.
This article takes the position that in many situations the voluntariness of a person’s choice need not be an issue, because the option the government proffers to that person is legally illegitimate. Specifically, the “illegitimate choice” test we propose would make concerns about the validity of a person’s choice legally irrelevant in three situations: (1) when Supreme Court caselaw, properly construed, has made it so; (2) when the benefit the government offers is premised on acceptance of a condition that is not narrowly tailored to a compelling interest; or (3) when the benefit the government offers is itself unconstitutional. This approach would call into question searches based on the third-party doctrine, promises of leniency during interrogations, many types of pretrial and post-conviction dispositional conditions, certain waivers associated with plea bargaining, some types of special needs searches, and consent searches conducted in the absence of suspicion. In all of these situations, the illegitimate choice test would avoid difficulties with determining whether a choice is coerced or voluntary, while still maintaining consent as a viable option at other criminal justice decision-points.
June 17, 2024 at 10:22 PM | Permalink
Comments
"The standard critiques of this doctrine — that these choices are often or always coerced, the result of an unconstitutional condition, or inherently shaped by race, gender, and class..."
Oh, OK, the Woke/Marxist train is leaving the station.
Fortunately, it will be leaving without me or the great majority of the rest of the country.
I guess the larger question this raises is why do so many legal academics hate America this much?
Posted by: Bill Otis | Jun 18, 2024 9:41:56 AM
Thank you for succinctly proving to everyone here that we no longer need pay attention to anything you say. You've either learned *nothing* from my case (which you keep asking about, having seemingly repeatedly forgotten everything I said before), the Central Park jogger case, and countless other wrongful convictions, or your goal isn't justice, but blind malice against America, punishing as many Americans as possible as harshly as possible without the slightest regard for guilt or innocence.
You also seem to be implying that any concern for truth, justice, due process, constitutional rights, or basic fairness is inherently Marxist. That is of course the exact opposite of reality. You favor Stalinist show trials in which accused people are coerced into confessing and wrongful convictions are simply defined out of existence.
Posted by: Keith Lynch | Jun 18, 2024 10:46:13 AM
I usually come here for the Bill commentary, but Billy boy, you’ve lost it. The very next paragraph says those issues are not the issue. Seeing how you can even read two paragraphs before spouting off, I think it’s time to bump your meds. Or get off the computer. Or both. Bye Billy.
Posted by: Blah | Jun 18, 2024 10:57:43 AM
*cannot
Posted by: Blah | Jun 18, 2024 10:59:11 AM
Re. 3rd party doctrine in particular. I have a hard time understanding the criticisms people have for it. Only information you attempt to protect is protected, information you have handed to a 3rd party fails this most basic of tests.
Posted by: Soronel Haetir | Jun 18, 2024 11:33:23 AM
Blah --
From you first comment: "The very next paragraph says those issues are not the issue. Seeing how you can even read two paragraphs before spouting off..."
Your second comment, immediately thereafter: "*cannot."
You win the Internet for the day!
Posted by: Bill Otis | Jun 18, 2024 2:14:46 PM
The Third Party Doctrine makes no sense to me. Do you never tell anyone anything that you don't mind everyone knowing? Even if they person you told was your lawyer, doctor, priest, parent, child, or lover?
I gave my email address to the company that gave me a Covid vaccination, so that they could contact me if there was a problem with that batch of vaccine. Within days I started getting unwanted ads from lots of companies on that address (which I had never given to anyone else). I was not happy about this abuse, and I wrote the CEO of that company to explain why I would no longer do business with them.
Verizon needs to know where your cell phone is to provide cell phone service. Are you happy with them sharing that information with the government without a warrant? That information can place you near a crime scene. Unlike a camera, it can't place you far away from one, since you could have loaned your cell phone to a friend. You can't loan your face to a friend.
For that reason, among others, I've never had a cell phone. Also, I almost always pay cash, since one never knows what purchases may later seem suspicious. Before 9/11 there was nothing suspicious about owning both a Koran and a flight manual. Before the Boston Marathon bombing there was nothing suspicious about buying a backpack, a pressure cooker, and fireworks. Before the War on Drugs, there was nothing suspicious about buying indoor-gardening supplies.
Posted by: Keith Lynch | Jun 18, 2024 2:28:34 PM
Its pretty simple Keith.
If your a good person, nothing you do will be suspicious.
If your not a good person, everything you do deserves suspicion.
If you want to be thought of us a good person, not being criminal scum is a good place to start. MAGA
Posted by: MAGA 2024 | Jun 18, 2024 6:18:31 PM
Nice theory. Too bad that reality doesn't work that way.
Posted by: Keith Lynch | Jun 18, 2024 10:16:07 PM
Hey kiddos, go to law school so you can end up like Billy: an unremarkable career, passed over for promotion to a higher position only to end up being an internet troll so shameless he signs his own name and complains when others do not. Billy boy, I hope you get the help you are crying out for.
Posted by: Blah | Jun 18, 2024 10:56:43 PM
"If your [sic} a good person, nothing you do will be suspicious."
Tell that to Bryan Malinowski, executive director of the main airport in Little Rock. He had a perfectly clean record. But he was suspected of a technical paperwork violation in his hobby of selling firearms. So the ATF conducted a pre-dawn no-knock raid last March. He thought (correctly) that he was the victims of a gang of violent thugs. Not knowing that they were federal agents, he shot at them. He was killed within seconds of when the raid began. His killing was ruled justified as self-defense. It's small justification that had he lived, and had he killed an ATF agent, *that* killing also would have been ruled justified self-defense.
This sort of thing happens almost every day in the US. We are a police state.
Posted by: Keith Lynch | Jun 19, 2024 8:55:39 AM
Keith :
I guess the ATF has learned moderation, then. Back in Bill Clinton and Janet Renos day theyd have slathered a canister of CS gas with white phosphorous and tossed it through the window of the house and burnt the whole place down at no risk to themselves.
But I guess the paperwork would have gone up with it and the OIC's case would have been blown LOL
Also this proves the point I made to Doug in another post. You cant tell people theyre under investigation, theyll destroy evidence and/or fix their paperwork. That will send case clearance rates right into the toilet.
Police state? If both sides in a gunfight can prevail with a self-defense claim it sounds more like a Gary Cooper western. Or like flintlocks at ten paces -- Zell Miller was a big fan! Shame of it is, a lot of guys end up more like Preston Brooks going up against Anson Burlingame.
"[sic}"
Ok so maybe I switch up "your" and "youre" sometimes but its hardly good form to mismatch punctuation like this when pointing out an error. Typical lib with a plank in his complaining about my mote!
MAGA
Posted by: MAGA 2024 | Jun 19, 2024 10:01:12 AM
MAGA --
"Back in Bill Clinton and Janet Renos day theyd have slathered a canister of CS gas with white phosphorous and tossed it through the window of the house and burnt the whole place down at no risk to themselves."
I don't recall what kind of investigation there was of that episode, if any, but I do recall that Aunt Janet kept her job without any problem, and in fact kept it for all of Clinton's tenure.
"You cant tell people theyre under investigation, theyll destroy evidence and/or fix their paperwork. That will send case clearance rates right into the toilet."
My understanding is that sometimes the police DO tell people they're under investigation (or make it obvious), because they want to know how the subject will react, who he'll talk to, or where he'll go. How a person under pressure reacts tells you something.
"Police state?"
If a person actually thinks the USA is a police state, or (at one point he tossed this one in too) that a lost child is better off seeking help from a drug dealer than from a cop, things have come to a point where sensible conversation is useless.
"Ok so maybe I switch up "your" and "youre" sometimes..."
As does everyone.
"...but its hardly good form to mismatch punctuation like this [[sic}] when pointing out an error.
Brutal, brutal. And you get an "A" for eyesight.
Posted by: Bill Otis | Jun 19, 2024 2:14:41 PM
Billy boy Otis handing out spelling lessons. What an impressive guy with so much to offer.
Posted by: Blah | Jun 19, 2024 4:18:54 PM
MAGA and “Blah,”
Two perfect examples of today’s left.
Posted by: TarlsQtr | Jun 19, 2024 5:14:44 PM
TarlsQtr --
The price of free speech, regrettably.
Posted by: Bill Otis | Jun 19, 2024 9:59:27 PM
TQ :
I dont think insults are called for here. I dont believe I have denigrated your character in any way. Why the personal attack? MAGA
Posted by: MAGA 2024 | Jun 20, 2024 10:43:44 AM
TarlsQtr --
Well, if MAGA has not attacked you personally, I'll fill in.
You're a racist.
I mean, we've all known that since forever. And there's additional proof today: Are you a white male? Did you get out of bed this morning?
HA!!! SEE. TOLD YA SO.
Posted by: Bill Otis | Jun 20, 2024 12:25:28 PM
Guilty, for the reasons you stated.
The question I have is why did MAGA assume it was an insult?
Posted by: TarlsQtr | Jun 20, 2024 6:38:15 PM
TQ :
Be serious. I cant think of anything WORSE than being on the left. Can you? MAGA
Posted by: MAGA 2024 | Jun 22, 2024 2:02:15 PM
