Osler's Razor

Thanks for the shout out!

I think the more interesting thing is just that we both recognized the two anomalies in how little the bible is quoted and how wrong that questioning is but it is still tolerated. Despite our differing opinions on the value of religion, we both agreed on that

-Brennan
 

I still laugh when I remember our email conversations that morning about the opinions being released.
To summarize:
Me: New SCOTUS OPINIONS!
You: They always do that.
Me: They changed Miranda!
And then you got a lot more interested in the topic haha

-Brennan
 

Wow. HuffPo's commenters are stupid. As one of the irreligious, allow me to apologize for the followers of Richard Dawkins. They truly are idiots.

Also, calm down yo about Thompkins, HuffPo commenters. All it says is that by silence you can waive Miranda rights... if by context that silence means you are not asserting those rights. 'course, I am a prosecutor, so…
 

I read your article. As usual, your writing was highly persuasive and caused me to think carefully about my own view on interview and interrogation. However, as troubling as the Court’s opinion was to you, I find my inability to reconcile your view with my own equally troubling.

At the root of every interrogation is a struggle between good and evil. The officer, seeking to find the truth, struggles against the criminal, the evildoer with a closely held secret. But, another struggle exists in that same interrogation. The criminal has an internal struggle that occurs between feelings of remorse and guilt and the fear of the consequences for his own actions. A skilled interrogator recognizes both of these struggles and knows that the key to both lies within rapport building. As part of rapport building the interrogator is seeking to find commonalities that will ease the stress of the first struggle, and identify the emotional triggers that will tip the balance in favor of remorse and guilt so that a confession will be verbalized.

A criminal’s faith plays an integral part in both struggles. Certainly an interrogator wants to know if a criminal was raised as a child to recognize the difference between right and wrong and whether that was reinforced by the teachings of a religious institution. The interrogator and criminal may in fact discover commonalities that will easily overcome much of the initial tension, even without any discussion of faith beyond identifying that the person is a believer of some sort. The interrogator knows then that faith may be an emotional trigger point to discover the truth.

I can see where the line may be crossed, but I don’t think Thompkins gives you the facts to make a compelling argument to support your position. You make the bold statement that the officer was leading him in prayer. I disagree. An interrogator that reminds a criminal of his early moral values, and the root of those moral values, is doing nothing more than reminding the criminal that good should overcome evil. You speak of a degradation and injury to the institution of faith. I simply don’t see it. How is faith degraded or injured when an officer inquires about a person’s faith?

You later changed the facts of Thompkins in a hypothetical to extend the argument to unreliable and false confessions. The simple fact is that any ambiguous question can lead to an unreliable response. This argument does not arise from religion, it arises from poorly worded questions that lack follow-up questions for clarification. I think you taught me that.

The last argument that the poor and unsophisticated will suffer from this government coercion is simply the way our system works. By your analysis, poor and recidivist offenders and rich offenders have the same protection of knowledge, be it from previous experience in the criminal justice system or through counsel. Many a rich man and recidivist have suffered the same fate as a poor and unsophisticated man. Every interrogation is coercive in nature. Every interrogation is about manipulating a person’s personal feelings and beliefs. Miranda allows all offenders to avoid the coercive interrogation and manipulation. Rich man, recidivist, or poor man, each faces interrogation if they are stupid enough to waive Miranda. You can’t fix stupid. Barring any government questioning may be the only way to protect the stupid. Discussion of religion does not better advance an argument that is designed to attack a perceived unfairness of our criminal justice system.

I respectfully dissent.
 

At the root of every interrogation is a struggle between good and evil.

I think it's a little too simplistic to suggest that the lines are so clearly drawn. We wouldn't have decades of Supreme Court jurisprudence if the police were simply "good" and suspected criminals were simply "evil." In reality, there is good and bad on both sides of an interrogation, and an interrogation is about getting information- that can be either good or bad. While I don't support the exploitation of someone's religion to obtain a confession, I also don't think religion should be allowed to serve as a complete and total shield against ever being used.
 

Also, and correct me if I'm wrong on the theological point, but isn't the public confession of your sins (including, presumably, the ones that are secular violations as well) an important part of one's spiritual development? Don't we want officers to remind people of their (supposed) moral values, and, as a principle of ordering society, don't we want actions taken on those moral values to be available to civil authorities in the prosecution of violations of the law?

That is, does not the criminal by his acceptance of religious values, legitimize their use to convict him? Could a religion based on the confession and repentance for wrongdoing feasibly require any less?
 

Don't we want officers to remind people of their (supposed) moral values

You have a lot more faith in the police than I do. I'm uncomfortable enough with the police state as it exists right now; adding moral relativism to the mix is a recipe for disaster if you ask me. Which of course no one did.
 

Prof., I noticed in class that you avoided saying "so help you God" to witnesses during motion and grand jury exercises. Perhaps I missed the explanation (either during my absence from the first week of class or an explanation posted prior to my introduction to razoritedom), but I've been curious about your reasons for omitting the traditional ending. I read your law review article about the 10 commandments, so I could hazard a guess, but wonder how far you would extend restrictions on public expressions of deity.

Although it's probably of interest to few, I generally disagree with Miranda as a constitutional requirement...but I did go to a school dance with one of Ernie's nieces (at least according to her...but it's not too big of a stretch because we have the same hometown).

And I suggest more comments from Brian H.