Friday, June 13, 2008

The Testiliar and Barney Fife

As our firm progresses I've been spending less time in court. Our associates have been doing most of the traffic court appearances, while I spend more time managing the firm. But once in a while I still get out there. I'm still the main lawyer for hearings and trials.

The other day I had two hearings (yes, in one day). Thus I was presented with a stark contrast between two kinds of police officer. The first cop was gaming the system. On every question he was trying to figure out where I was going so he could get around it. There is a term for what this kind of cop does: testilying. This young fellow fit that description, so I'll call him the Testiliar. Testiliars think their job is to make as many arrests as possible. He even bragged on the stand that he "produces" arrests.

Let's be clear that I support our police. We want our police to catch real criminals and put them behind bars. But we don't want our police to manufacture arrests. That is certainly not admirable, and not the system of justice we want in this country.

The second cop was likeable. He wasn't polished. He didn't try to game my questions at all. He just answered straight up. He even wished our client good luck at the end of the hearing.

He did make a lot of mistakes, so I'm calling him Barney Fife. That's not really fair because he wasn't that much of a bumbler. The truth is that if Barney testifies, the jury will be rooting for him. He's a regular guy. He's not playing games, just doing his job.

One of the key issues in the case with the Testiliar involved probable cause -- did the officer have a sufficient basis to arrest our client? Both he and Barney followed the same essential steps before making the arrest -- it was the same offense. Barney arrested our client 15 minutes after the encounter began. The Testiliar did it in only 4 minutes. The steps in this process are fairly complicated. Maybe the Testiliar is so efficient he's twice as fast as Barney, but that doesn't get you to 4 minutes.

Efficiency is not justice, and justice shouldn't be efficient. It should be just.
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