Poll: Most Evil Legal Principles

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Reading an appellate decision today, it hit me that I really, really hate the “harmless error” analysis. So here’s a poll. What, according to you, is the most evil legal principle out there? I’ve added a few options to the poll, but feel free to leave comments as I can’t cover them all.

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21 thoughts on “Poll: Most Evil Legal Principles

  1. Alec

    Claim not preserved for appeal. Harmless error is a close second for me. What irritates me about appeal preservation is that legal issues are lost, and I do not see what interests are served (apart from the appellate court’s desire to have a free weekend).

    Reply
  2. Mark Bennett

    If by “reasonable suspicion” you mean the idea that a Terry Stop is somehow not an arrest, that would get my vote. Terry is the worst Fourth Amendment case ever.

    Reply
  3. Gideon Post author

    [quote comment="2937"]Claim not preserved for appeal. Harmless error is a close second for me. What irritates me about appeal preservation is that legal issues are lost, and I do not see what interests are served (apart from the appellate court’s desire to have a free weekend).[/quote]
    I agree. They’re both very close for me. On the one hand, “harmless error” is thrown about with such abandon that it sickens me, but on the other, it’s almost like they don’t want to. The record is adequate – just decide it.

    [quote comment="2939"]If by “reasonable suspicion” you mean the idea that a Terry Stop is somehow not an arrest, that would get my vote. Terry is the worst Fourth Amendment case ever.[/quote]
    Yeah, I was referring to the “concept” of reasonable suspicion, which is no more than just an uninformed hunch.

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  4. Daniel Quackenbush

    All of these are so close to “evil,” that it’s difficult to choose. In practical terms, I see little difference between probable cause and reasonable suspicion. Police officers can and do make up the “facts” to ensure there is “probable cause” if more than reasonable suspicion is required. Probable cause should not be done away because there are a few cops who won’t lie to make sure there is probable cause.

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  5. Ruth

    The “harmless error,” hands down. What the courts seem to mean by this analysis is that the defendant was right all along and an injustice occurred and the officers and/or prosecutors did break the rules, but the defendant is just so obviously guilty, we don’t want to let him walk. In other words, they don’t care how wrong the judge, police, or prosecutors are; that’s just fine with them. Whereas when a defendant breaks the rules, they get punished to the “fullest extent of the law.” It’s point-blank not fair, and unjust.

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  6. Daniel Quackenbush

    Ruth is absolutely right. Just about anything a prosecutor does or the judge does that helps the prosecutor is “harmless.” It’s similar to police “qualified immunity,” where almost anything the officer does is “unclear” (the law must be “clearly established”) but the defendant in a criminal case is almost always held to the strictest of standards. Not too long ago, the U.S. Supreme Court held that a defendant was responsible for predicting a “trend” in the law, which of course actually didn’t change until the the defendant was charged and convicted.

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  7. Jamie

    I’m not sure this counts as the type of “legal principle” you are asking about, but how about overpunishment for 100% guilty defendants?

    I’m mostly talking about cases where the defendant is looking at 25 to Life for his 3rd possession of 1 to 4 grams of cocaine (like in Texas).

    I think there’s a good chance people 100 years from now will look back on that and find it immoral.

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  8. Ruth

    I realized that what I really meant by my previous comment is this: “Harmless error” is a way for the appellate courts to say that they only care about the constitution and the rights of the accused insofaras the “criminals” remain locked up (“where they belong…?”) It’s the epitomy of what society seems to believe about us, our clients, our laws, and the constitution. That is, all those things are fine when someone “WE” care about is in trouble, but not when it results in “legal technicalities” that help “those people” escape punishment.

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  9. Gideon Post author

    [quote comment="2947"]I’m not sure this counts as the type of “legal principle” you are asking about, but how about overpunishment for 100% guilty defendants?

    I’m mostly talking about cases where the defendant is looking at 25 to Life for his 3rd possession of 1 to 4 grams of cocaine (like in Texas).

    I think there’s a good chance people 100 years from now will look back on that and find it immoral.[/quote]
    I agree. While not a “legal principle” it definitely is one of the major problems facing the criminal justice system. Unnecessarily lengthy punishments for non-violent offenses do nothing other than be a drain on resources and result in prison overcrowding.

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  10. Woman in Black

    So, how is this case working out for TN? I keep arguing this and no-one listens.

    “Our supreme court has stated that “it is inappropriate for the appellate courts to preside over the creation of a body of ‘harmless error law’ ” arising from the continued failure of a trial court to meet procedural requirements. *128 State v. Gorman, 628 S.W.2d 739, 740 (Tenn.1982). We believe it to be similarly inappropriate for a continuing practice of prosecutors using biblical references during trial. At some point, the need to preserve the integrity of the judicial process will require that the continued practice not be subject to the harmless error rule.”

    State v. Richardson
    995 S.W.2d 119
    Tenn.Crim.App.,1998.
    Aug 13, 1998 (Approx. 10 pages)

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  11. Gideon Post author

    [quote comment="2959"]So, how is this case working out for TN? I keep arguing this and no-one listens.

    “Our supreme court has stated that “it is inappropriate for the appellate courts to preside over the creation of a body of ‘harmless error law’ ” arising from the continued failure of a trial court to meet procedural requirements. *128 State v. Gorman, 628 S.W.2d 739, 740 (Tenn.1982). We believe it to be similarly inappropriate for a continuing practice of prosecutors using biblical references during trial. At some point, the need to preserve the integrity of the judicial process will require that the continued practice not be subject to the harmless error rule.”

    State v. Richardson
    995 S.W.2d 119
    Tenn.Crim.App.,1998.
    Aug 13, 1998 (Approx. 10 pages)[/quote]
    Looks like non-precedent. Someone got lucky.

    Reply
  12. david

    “Totality of the circumstances”: The inkblot test for affirming convictions. The “let’s not articulate a clear rule, instead, let’s just convict because it feels right” standard of review in criminal cases. This “principal” creates more Alice-in-Wonderland, arbitrary and capricious results than any other one I can name. Therefore, it is the most evil.

    Reply
  13. Gideon Post author

    [quote comment="2968"]“Totality of the circumstances”: The inkblot test for affirming convictions. The “let’s not articulate a clear rule, instead, let’s just convict because it feels right” standard of review in criminal cases. This “principal” creates more Alice-in-Wonderland, arbitrary and capricious results than any other one I can name. Therefore, it is the most evil.[/quote]
    Ooh! Good one.

    Reply
  14. Sean O'Brien

    “Death is different”. Ninety-nine times out of one hundred it is sloganeering masquerading as analysis, and it is used to take away our right as a society to impose the harshest punishments on those who break our laws.

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  15. Sean O'Brien

    Yeah, that’s right Mark. The Constitution does not allow us, as a People, to govern ourselves. Society does have rights in relation to individuals. We have the right to punish them for committing crimes, and we have the right to impose death. You may not like it, but that doesn’t make me an ignoramus, you twit.

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  16. Mark Bennett

    Sean, you’re wrong. The Consitution governs the relationship between goverment and citizens; it preserves the rights of the people in relation to the government and of the states in relation to the federal government.

    The Constitution doesn’t even talk about “society.” It doesn’t describe in any way society’s ability to punish individuals unless by “society” you mean “the government,” in which case the it expressly limits that ability (in the Eighth Amendment) and lots of others. The founders, most of whom weren’t ignoramuses or twits, were trying to prevent government exercising too much power, not too little.

    Society has the power to kill its weak and its lame, not the right. Society no more has “rights” in relation to individuals than government has.

    Death, by the way, is different.

    Reply
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  18. Sara

    “Procedural default” in the habeas context really pisses me off. I suppose that falls under claims not preserved for appeal, so that’s how I voted. It just makes me so angry that prisoners handling their own appeals pro se can screw themselves out of winnable grounds for appeal if they don’t jump through the right labyrynthic hoops of post-conviction pleading.

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  19. Gideon Post author

    I agree. It really is an awful legal hurdle. While some courts have embraced being pro-se as sufficient cause, most courts have not.

    Reply
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