Mandatory Lawyers


“You have the right to remain silent. Anything you say or do can and will be held against you in a court of law. You have the right to speak to an attorney. If you cannot afford an attorney, one will be appointed for you.”

That is, as I’m sure most of you know, the standard text of the so-called Miranda warning. It’s generally read to suspects prior to interrogation by the police. It’s a good, sound warning, and a lot of people ignore it, though if you’re ever in a situation where a cop reads you that warning, you need to take it to heart.

There’s a problem with the American criminal system. Well, there’s lots of problems, but the one I’m going to address now is false convictions. We don’t know how many there are, but I’m willing to bet the number is better than 1%, though likely not as high as 5%. Any wrongful conviction is, of course, a major problem. It’s not just a problem for the person being convicted, but it’s also a problem for the system as a whole, because it means the person who actually did the crime is not being punished and is free to reoffend.

I’ve been thinking about a way to minimize these wrongful convictions and I think I have come up with a good one. It basically boils down this: in any circumstances where a suspect would normally be read their Miranda warning, they should instead be automatically assigned a lawyer who must be present during police questioning. It’s the same right you have under Miranda, only in this case it would be an automatic fact. You could choose to waive your right, but before you do the lawyer you are assigned would have to explain to you the possible consequences.

Now you might think this would lead to career criminals getting off scot-free on everything they’ve done. All they’ll have to do is lawyer up and that will be that. Well, not exactly. First off, most career criminals know in advance to ask for a lawyer as soon as they’re questioned. They do so, and that’s the end of that conversation. The police have to build a case based on evidence without the help of a confession.

Innocent people, on the other hand, when questioned by the police, “know” they don’t need a lawyer. After all, they haven’t done anything wrong, so why should they need one? The police will frequently skirt the boundaries of the laws when they find out someone is reluctant to have a lawyer and will do everything they can to encourage them not to have one. This means when they get questioned, they don’t have anyone in their corner. A lengthy questioning session could take hours and by the end the officer in charge could imply heavily that if they just sign a confession, everything will be ok and they can go home. Otherwise, they’re told solemnly, they can be held without charges for three days. The cops don’t do this because they’re bad people or because they’re looking to put innocent people away. They do it for a number of reasons, but usually it boils down to them believing they have the right person and knowing that the best way to get that person convicted, especially if they’re short on physical evidence (and often all they might have is eyewitness testimony, which is incredibly unreliable), is a confession. And those confessions, once given, are very hard to keep out of a trial.

Put yourself in the position of someone who is innocent, but being interrogated by the police. You didn’t request a lawyer, the officers seemed to think you didn’t really need one, and you’ve been having this conversation with them. The police tell you that they know you didn’t do anything wrong, but they’re trying to clear up some inconsistencies in their case, and they’re glad you’re there to help. But the questioning goes on and on, and they start hinting that they think you’re holding out on them. They’ll talk to you about what can happen to people who hold out on the police (very little, btw. Fifth Amendment and all that), and how they’d hate to see you get into any trouble. Now it’s been hours, and you’re in this small room, and you see people getting led off to cells, and it’s very late at night, and your children/spouse/parents are worried about you, and all you want to do is go home. If you had a lawyer, you’d know that you could leave at any point, but you don’t have one, and then the cops offer you an out in the form of a document. Just sign it, you’re told. It’s just a formality, and you can leave right after. They don’t expect anything to come of it, and of course they’ll look for the person who really did the crime, but you’d help them so much and then you can leave and get back to your real life and all you need to do is sign and you find yourself reaching for the pen…

And then it’s done. You’ve signed. The cops thank you. They apologize for having taken up so much of your time. Maybe they even offer to drive you back home, and give you something to eat and drink. The tension is gone, everyone is cheerful, and it sounds like everything will be ok. They thank you for your troubles and you go home, thinking all is well.

At least until the summons arrives.

Don’t think it can happen to you? Think you’re too smart? You’re not. It can. If lawyers were mandatory during police questioning, we’d cut back on instances like this, which I am sure happen far more often than we’d all like. Yes, there would be a few problems and bugs to iron out, but overall I think this is the best way of keeping the innocent out of prison and making sure the guilty still get punished.

Make lawyers mandatory. Do it to shield the innocent, and to save everyone a lot of time, money and trouble. Do it to make sure the right people get convicted. Do it for justice.

Advertisements