What state is our Criminal Justice System in?

Posted on February 1, 2010 by Tim Whitham

It is an interesting question. It also one that was addressed over ten years ago in the book Guilty: The Collapse of Criminal Justice by Harold Rothwax. Then I came across the blog out of Tennessee that stated Why the Criminal Justice System is Broke in Tennessee by Rob McKinney. Both bring up excellent points of how politicians are constantly trying to "fix" the system. But is the system really in need of repair? At least to the extent the politicians think?

In my own locale politics has even entered our judicial system. Not one who likes to state his political views to loudly, I am concerned though about the race for one of our judges seats. In the race is a politician who, in the over ten years I have been in this area, I have not seen in a court room. I didn't even know he was an attorney. I knew he was a State Representative, but not a practicing attorney. Now at age 65, he claims to have all this wealth of knowledge able to make him a judge. Sometimes you just have to wonder. Like Tennessee, our ads have been the same, ready to fix a system I didn't even know was broken (again).

Sometimes, I think the repairs are from the damage we cause ourselves and not from a "broken" system.

Another example in our local community is the recent disclosure of a survey taken inside our police department over 4 years ago. The city fought, in court, to keep it confidential (and lost). Now, this week it is out and there are no big surprises. We, the community, knew there were problems inside the department, but the city wanted to keep it quiet. Why? Even our local paper's blog wondered that.

Society views some of this with true scepticism. And so they should. Politicians win on campaigns that state a problem, whether it exists or not, and the solution they can bring to it, whether true or not. My only request is the same as Rob McKinney, we should not be your politicial football that can be tossed back and forth as you please.

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When "No" really does mean "Yes"

Posted on July 21, 2009 by Tim Whitham

We are always taught to know what the answer to the question is before we ask it. But, we sometimes forget to pay attention to what the question is. I was reminded of this recently when questioning a police officer during a motion hearing. You would think as a former police officer, I would have been ready for this.

The issue was a consent to search a vehicle. I asked the officer what did you ask my client? His answer was I asked him "Do you mind if I search your vehicle?" Now like most of us, we want to say "No" thinking we mean, No.

But, look at the question. (He did not ask, Do I have your consent to search your vehicle?) If your client answered "no", to the question, he really meant "No Officer, I don't mind if you search my car." If he answered "Yes", then he meant, "yes, I do mind if you search my car." So, in other words, by answering "yes" you really mean "no" I am not consenting to you searching my vehicle.

The legal field is always full of these little nuances of our language. It drives my kids nuts when I point some of them out  to them or pick on what they said and not what they meant to say. I point this one out, not to pick on my former law enforcement colleagues (he was trained well on the question to ask), but to highlight, how we can be duped into thinking we are saying "no" to something when in fact we are saying "Yes".  The form of the question matters as much as the answer. Hopefully we lawyers, are trained not to just look for the answer, but to form the right question to get the answer we want.

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