Michael Cicchini – Myths, Misconceptions, and the Law

February 21, 2011

Michael Cicchini is a criminal defense attorney and a skeptic.

Through extensive research and writing in the field of criminal law he has advocated for defendants’ rights. Super Lawyers and Milwaukee Magazine have named him among “The Top Young Lawyers” for four consecutive years.

Michael is the author of the book But They Didn’t Read Me My Rights: Myths, Oddities, and Lies about our Legal System, that debunks assumptions and misconceptions about the American Legal System. He is also author of the blog “The Legal Watchdog” where he employs critical thinking to critique case decisions and report on other legal issues.

In this interview with Karen Stollznow, Michael shares some urban legends and absurdities to be found about the United States justice system. He talks about the effect of popular culture on the public perception of the law, and reveals that when it comes to the law, fact is often stranger than fiction.

Michael discusses critical thinking in the courtroom, reason in legal reasoning, logic in the law, and the role of evidence in a trial. He also speaks about the influence of religious belief on laws that are passed in this country and why old laws rarely ever go away.

Links Mentioned in this Episode

This is point of inquiry for Monday, February 21st, 2011. 

Welcome to Point of inquiry. I’m Karen Stollznow point of inquiry is the radio show and podcast of the Center for Inquiry, a think tank advancing reason, science and secular values in public affairs and to the grassroots. My guest this week is Michael Cecchini, a criminal defense attorney and criminal law researcher. Michael is the author of the book. But they didn’t read me my rights, myths, oddities and lies about our legal system that debunks assumptions and misconceptions about the American legal system. He’s also author of the blog, The Legal Watchdog, where he employs critical thinking to critique case decisions and report on other legal issues. 

Michael, welcome to Point of Inquiry. 

Well, thanks for having me. It’s good to be here. 

Your book. But they didn’t read me my rights, myths, oddities and lies about our legal system, which is coauthored with Amy Kushner, debunks assumptions, fallacies and misconceptions about the American legal system. How did these myths appear and why? 

Well, in in my line of work, I defend people accused of crimes. So for me, they probably appear differently for it, for every lawyer. For me, I see them from all kinds of different people. I see them, for example, people making criminal accusations. For example, I may have a father who calls the police on his son. The sons maybe being disorderly or loud. And the father must’ve frightened the son. Maybe, you know, have the police talked to him? And then he’s surprised to learn when a criminal case is filed and the son is now a criminal defendant and he says, why? You know, I want to drop the charges while at that point, for example, the accuser can’t drop the charges. He doesn’t control that. So, you know, people who make accusations in the criminal justice system, they have a lot of these myths. A defendant certainly hold a lot of these myths and misconceptions. Defendants often complain to me that the police haven’t read them their rights, which it’s actually the rare case where the police would have to read someone their rights. Jurors, although a lot of myths about the criminal justice system, which if they get selected for a jury, those are often corrected throughout the course of the trial. For example, before a trial begins, a judge may ask a juror or one of the lawyers may ask the jury, do you think because the defendant is accused of a crime, that he’s guilty in a lot of jurors to their credit. And we always appreciate their honesty. We’ll raise their hand and say, well, yes, I do believe he’s guilty. If he’s charged, he’s here. He has to be guilty of something. And fortunately, a lot of times, you know, by the end of the trial, those jurors are quick to return a not guilty verdict when the evidence doesn’t support that. So people in all phases of the criminal process, I think, hold those mass accusers, defendants, jurors. Certainly people generally. Do you hear a lot of talk these days about this Arizona incident and people thinking that a defendant can claim insanity and just walk away from a charge? There’s a big fear and myth about that, and that’s not at all the case either. So I think these myths kind of pop up everywhere, at least in my field. They do and in criminal law. And pretty much everyone has them in all phases of the process. 

I think to thinking in thinking about why they appear, I’m assuming that a lot of these are created by popular culture on television and in movies. So how do they get it wrong in TV and in movies? 

Yeah, I think that’s a that’s a good point. I think that’s where we get a lot of this stuff from. You know, as you mentioned, the title of our book is, but they didn’t read me my rights and that is maybe the biggest myth. And I think that’s why one of the reasons Amy Kushner and I chose it for the title. That’s quite the bright out of TV. I mean, we see that all the time where the police read the rights to person like a victory speech after they’ve closed the case. They read them the rights and the story ends. Well, yeah, that’s not at all the case. That’s not how it works. So that’s one way they get it wrong. There’s a lot of ways, I think, you know, we see in TV shows all the time where people make a decision to drop charges against someone. And again, that doesn’t happen once the state is involved. It’s the state that files a case. It’s the state that presses the charges, so to speak. And while an alleged victim certainly can give their input, they have no control over whether a criminal case gets dropped or not. I think the biggest myth in TV and movies and things like that, and I think it necessarily has to be this way to have an interesting story. But I think the biggest myth is that the criminal, you know, whether it’s a TV show or a movie, the criminal is always a bad person. I think we equate crimes with being morally bad. And that’s not always the case. I mean, we have so many different crimes in our country. There’s, you know, thousands that, you know, often people who are criminals and even felons are very good people. For example, marijuana smoking can be a felony, simple possession of marijuana in some states and under some circumstances. And there’s a lot of well-intentioned laws that are applied way too broadly. And we find people ensnared in the criminal justice system for doing things that they didn’t even know were criminal. And so a lot of times we have people who are criminals that are morally good people. Now TV and movies, you can’t really fault them for that because that doesn’t really make for an interesting story. You have to have a criminal who’s a bad guy and and who’s a morally bad guy. On top of that, and if if if I could just mention at this point, I think if anyone is interested in some realistic television, I don’t watch a lot of war television. But there was a show called Murder One. It only lasted two years. And the first year of it was excellent. It was on TV and I think it was from the 1990s and it’s available on DVD and it’s called Murder One. And it’s, I think, a very good show from the perspective of a criminal defense lawyer. So it’s it’s actually pretty interesting and pretty realistic. 

And you basically say in your book that these shows emphasize drama rather than precedent. 

Yeah, I think so. And again, it’s hard to fault them because, you know, a lot of it is more interesting because of what they do. But on the other hand, I think they’re you know, sometimes truth is certainly stranger than fiction. And I think they might be passing up on some good things. If you if you want to do a very realistic Washo murder one is a good example. I think there’s there’s enough there. You can make a very interesting show. But, yeah, for the most part, I think it’s something they have to do. You know, from from a Hollywood standpoint, some of it I don’t understand and I never will. Why? You know, they they’ve created the myth that the police read you your rights every time you’re arrested. You know, I’m not quite sure. 

But, you know, others are other myths that are developed. Those are more easily, you know, understandable how they how they’ve come to develop that way. 

And so in your book, you talk about the process of legal reasoning. So what is this process? And is the critical thinking and skepticism in legal reasoning? 

But there certainly should be legal reasoning and the basic senses. It’s kind of a three or four a four step process. You have to identify the precise legal issue that people are arguing about. You know, like, is the contract enforceable or is the defendant guilty of a crime? And you have to be very precise in doing that. The next step is to find the applicable rule of law and apply that rule to the facts and then reach a conclusion. So, you know, it’s how this is applied. Now, this is done varies dramatically by the type of law and also the stage of the process. Are we at trial or are we at an appeal? You know, there’s many different different ways where where it could be applied. In my line of work, I do trial level work and defend people who are accused of crimes. So you might have, you know, when it when a case comes in, is referred to a district attorney’s office. I’m on the defense side. But the district attorney would be the prosecutor. They may look at a case and they have to apply some skepticism and some critical thinking there and say, well, here we have an allegation. How viable is it? How how believable is it? Should we be skeptical of this claim? Does this person who’s making the accusation have a reason to to accuse this person? And, you know, the district attorney may then has to make a decision to charge the crime or not. And then ultimately, if a crime is charged and it goes to trial, the jury’s basically have to do the same thing. They have different burden of proof depending on the type of case. If it’s a civil case, they may have to decide a case by the preponderance of the evidence. In other words, who has 51 percent, so to speak, barely over the 50 percent threshold would carry the day is one way to make an analogy. Other cases in criminal cases, it’s beyond a reasonable doubt. And that’s you know, a lot of people have a different idea of what that means to them. But it’s a much higher burden of proof. So depending on the stage of the proceeding and the type of case, we hope, we certainly hope there’s critical thinking going on and legal reasoning going on by all the parties, whether it’s a judge or jury, the attorneys and so on. So it should and I mean, does does occur. 

And you also say in your book that legal reasoning is very straightforward. One learns in class, but not so much so in practice. 

That’s right. I mean, it’s it’s easy. In class when you’re in law school for a couple of reasons. One, the stakes are very low. You know, if you get it wrong, it’s a couple of points on an exam in real life. You know, you get it wrong. There’s someone’s freedom is at stake or could be millions of dollars if you’re a civil attorney representing corporations. So there’s a lot more at stake when it’s in the real world, when it’s you know, it’s in class. It’s a lot more fun when you’re in law school. Put it that way. And the stakes are high stakes are much lower indeed. 

And some laws seem to be illogical, such as it’s possible to be convicted of drunk driving without even starting up a car, which is one of the beliefs that you treat in your book. So is the law always rational and logical? 

Yeah. It’s not. And sometimes it’s just I think these laws just reach too far. And the drunk driving cases is a good example that you raise. We have a chapter on that in the book where, you know, it makes sense to think, you know, if you’re going to be convicted of drunk driving, you have to be driving the car. Well, we give some examples where people have been convicted of four just turning the key. For example, if you’re in the car and the passengers. And you’re consciously making decision not to drive because you’re intoxicated and you go turn the key to get the heater, the radio on that can constitute drunk driving under the laws in some states. And this would be a good point, if I may I. There’s a part in the book in the very beginning where we say it’s very important that the book not be used for legal advice, rather just for entertainment purposes. And that would apply to our discussion here as well. There are several reasons for that. One reason is that the law is so different from state to state and it you can’t take anything in the book as legal advice. 

If there’s any type of a legal issue, that person should see an attorney in their state. So that’s that’s just one reason. But I think it’s important to note here, and that would apply equally to our discussion. But the law certainly is not rational. And I think there’s a number of influences on it that that make it that way. One is you might have special interest groups lobbying for a law. I mean, who everyone knows about that. You know, Congress bashing passes a special law or a special tax break or a special protection for certain groups of people or companies. You know, everyone knows about that. That happens all the time. Another example why the law isn’t rational is something you and your listeners are certainly interested in. And that’s maybe religion’s influence on the law. One of your prior guests, Christopher Hitchens, has said that, you know. Show me a religion that doesn’t detest sex and have real issues with human sexuality. And I think that shows through sometimes in our laws. I think there’s a tremendous influence of religion on the law. And we often ignore, you know, human nature in order to pass some of these laws, especially sex crimes. Another example is a lot of times laws will be passed not because they’re rational or good, but it’s just a politically popular thing to do. Oh, we’ve got a good example of that going on right now where each of our states has a sex offender registry. But the federal government is also starting its own sex offender registry. And it’s certainly a popular thing to do. No one likes sex offenders. You know, we want to attract them to do things like that. That’s a it’s a popular law to get passed. But what’s happening is the cost of it is so overwhelming and it’s so it already duplicates what the states are doing that a lot of states are opting not even to participate in it. And instead they’re paying a penalty and in lost funding from the government in other areas because it’s cheaper to do that than it would be to implement the law. So a lot of times these laws that we passed, they’re influenced by religion or they’re they ignore economic reality. So a lot of times we end up with very inefficient laws are very irrational laws. And that’s probably something we see in every area, not just criminal law. 

And at what level are these laws being affected by religion? 

Religion? I think you can see that in a number of areas. Some states, for example, will have laws for Christian Scientists, for example. They can’t put this way. The law will limit the state’s ability to prosecute someone for child abuse or for child neglect. 

If they’re practicing a Christian science type religion or they’re practicing, they want to heal the child like through prayer or something like that, as opposed to medical attention. So that’s one really obvious and direct way where religion impacts the law. Now, again, you should say that I know that varies dramatically by state. And no, you know, and again, this is not any type of legal advice. If there’s any legal issue on either side of the coin, the person should see an attorney in their state about this. But that’s one way where religion can affect the law and in a rather direct way, other ways. You know, we mentioned sex crimes. We have very harsh sex crimes in this country. My my coauthor, Amy Kushner, wrote a chapter on oral sex in the law, and I think she made reference to its puritanical roots. 

At some states, oral sex is still illegal and it’s policed rather selectively. And I think for a long time it was used to prosecute homosexuals only because, you know, it would be unconstitutional to say, you know, it’s an end round way around the Constitution. It can be laws can be applied selectively. Same thing with adultery laws. You might have the Daltry law on the books, but no one will ever get prosecuted unless the prosecutor, you know, wants to selectively pursue a particular person and doesn’t have anything else to pursue him with. So, yeah, the sex laws are pretty antiquated. A lot of them have been pretty much resolved through a recent Supreme Court case, Lawrence versus Texas, which said would actually struck down a sodomy type law. 

And because two homosexual men were prosecuted under it and the court said, our Supreme Court said, no, no, this is about two consenting adults in their own home. They weren’t out in public. One of them’s not a minor. You know, this law is unconstitutional. You can’t govern people’s, you know, their private behavior in their own homes like that. So there is kind of a war going on. But just because the Supreme Court says that a particular statute in a particular. Is unconstitutional. That doesn’t mean statutes all across the country go away. Again, it varies wildly by state. But there are still laws on the books like that. They are still used to prosecute people. Amy Kushner did a great job in that chapter illustrating some examples of what’s going on today in that regard. So religion, I think, kind of shines through in the area of sex crimes. Without question. I think another area where religion kind of impacts the law in another of your former guest, Sam Harris’s, has talked about this a lot in his books and in his lectures. But drugs in the law, we have what is illegal versus legal in this country really isn’t that rational. He he claims Sam Harris does that. You know, piety and pleasure, he has said, have often clash. And I think that’s the case. We have laws against pretty well put this way, alcohol is legal despite the tremendous harm it causes to people and to society. Yet other drugs that are harmless by comparison are completely natural, even have know medical uses are illegal in many states. In fact, we spend we spend billions of dollars prosecuting and convicting and incarcerating people for for things like marijuana. And in fact, they indicate in some states, the simple possession of marijuana, even a very small amounts, can be a felony under certain circumstances. So I think that there’s some religious basis there as well. So I think we’re seeing religion kind of shine through in those areas. I’m sure there are many others. I’ve often wondered about one. We’ve seen some cases where people are convicted with little or no evidence and sometimes the evidence is so lacking where appellate courts will even reverse a conviction. And I’ve often wondered if there is some connection between religiosity, whether it be a judge or a jury as the fact finder and whether someone is convicted. I don’t know that. I think, you know, in religion, obviously, the underlying tenant is that we can know things without evidence. So I don’t know if that’s something that would carry over into the into the legal system where jurors feel they know something and can therefore convict without any evidence or in a civil case, find for one at one side or the other without any evidence. I think that’s an interesting question. I don’t know the answer to it. I don’t know if there’s studies that have been done on that. But I think that would be an interesting area to to do some social science studies in. 

Definitely. Definitely. You know, I was going to ask you about evidence to you, to skeptics, evidences everything. We constantly seek the evidence and ask for evidence when claims are made. And in your book, one question asks, can you be convicted of a crime without evidence? And the answer is yes. 

Yes. And that be the case? 

Well, in you know, you bring up a good point in the science in our everyday lives. If someone comes up to us, especially skeptical people and they say, hey, I saw a UFO outside, I swear to it, we don’t accept that assertion. That’s not evidence. And the reason it’s not as you know, the person could be lying first, could be mistaken. They could be delusional. You know, we we demand some form of evidence to back up an assertion or a claim in in the law. The claim itself is evidence. The jury is specifically instructed that it is evidence. 

So we could have we have many convictions at rest entirely on the word of one person with no supporting evidence in even cases where there were the evidence, the physical evidence shows to the contrary. You know, we talk about one case in the book where a person was convicted of sexual assault of a child for touching a child. And the child testified that it happened. It happened at midnight. And when questioned in court, you know, how do you know it was midnight? Did you look at the clock? He said, no, I didn’t look at the clock. And they said, well, then how do you know what time it is? And he said, well, I. I just know. But I was sleeping the whole time. Well, they said, when did you wake up? He said, I never woke up. And then the defense lawyer asked him what maybe you were dreaming. And he said, well, no, I had other dreams that night. So, you know, I could tell that this wasn’t a dream. That’s enough to convict a person. And in fact, this person was convicted. He had turned down a misdemeanor offer and in fact, was convicted on serious felony child sexual assault charges and was sent to prison. So in in the law, evidence includes the accusation itself. As long as the person gets on the stand, takes an oath and repeats the accusation. And actually, in some cases, that’s not even required. And that gets a bit more complicated. It deals with the confrontation clause of the Constitution. But in some cases, that’s not even required. So it’s much a much looser standard as to what constitutes evidence. And I think it all comes down to the way you define evidence when I say you can be convicted without any evidence just because it’s not what people who listened to your podcast, they wouldn’t think of that as evidence. It’s just it’s just an allegation, but an allegation is evidence. So, yes, you can’t be convicted on an allegation alone, even if there’s no supporting evidence. And even if there’s evidence to the contrary. So it’s a risky proposition if you’re a criminal defendant. 

It seems very subjective at times. 

I mean, I never understood that how can a jury be split? They may report after four or five hours that, you know, we’re split, we’re deadlocked, we’re six to six. And then, you know, an hour later, they come back and they’ve all decided one way, you know? So, yeah, it is very subjective. And I also suspect that some people are convinced throughout the process of the jury deliberation. I would love to know what goes on in a jury. I’ve not been on a jury myself. I haven’t been even close to getting on a jury. I would certainly like to I think as a lawyer or no lawyer would want me on a jury and they’d probably strike me if I got to that point. But I think it would be very interesting. And the closest I’ve come is the 12 Angry Men remake, which is pretty good now and there it turned out the right way. You know, the innocent defendant was acquitted. But, yeah, it is very subjective. Everyone has a different definition of what constitutes evidence and what evidence is reliable. So it’s it’s a highly subjective, subjective process, especially when it involves a jury, without question. 

So moving on, in your book, you say that the lawyer is shrouded in mystery and legalese. And I’m wondering, does Legal’s contribute to the myths and misconceptions? 

It might certainly certain catch phrases catch on and that might be the case. I think the other thing it does is it makes the. It certainly makes judges and lawyers look smarter than we are. When you start speaking in Latin or in highly technical language, I think that’s maybe the bigger impact of it. But that’s that’s you know, that’s not the case. It it certainly gives the impression that things are very, you know, rational and just and consistent. You know, when you speak in such lofty language. But that’s not the case. You mentioned before about the law being subjective. I mean, we can have a conviction at a at a trial court. And when it gets appealed, we can have the appellate court reversing the trial court and then we could have the state Supreme Court reversing the appellate court and then we could have the U.S. Supreme Court reversing the state Supreme Court. So these things can certainly bounce back and forth. And, you know, you can use as much legal ease and as much Latin language and fancy terminology as you want. But it doesn’t make it just it doesn’t make it rational and it doesn’t make us smarter than anyone. I hate to hate to have to say it, but that’s that’s the case of it. Whether whether it contributes to these myths, the legal issues itself, maybe not. I think that might just be more of the catch phrases, for example. But they didn’t read me my rights. You hear that so often. I think these things just kind of evolve into these these myths. But I don’t know how much it’s it’s related to the to the legal ease or the terminology. 

You said in one part of the book that it can be difficult to find laws and sometimes we get it wrong. 

Absolutely. I mean, the laws, the amount of law in this country is is incredible. I practiced only one area and I have struggled to keep up with that one area. There there’s so many different laws being passed all the time. In some areas, it’s so mind bogglingly complex. Securities regulations, for example, and companies want to issue securities like stocks or bonds or things like that. I mean, that is incredibly complex and it’s multilayered. And you’ve got laws at the federal level and the state level and then you’ve got other regulations to comply with. So it’s there’s just so much of it. And Congress, both at the the legislature, both both at the state and the federal level. And we just keep adding new laws each and every year. And the old laws, they don’t they rarely replace the old laws. They just usually get stacked on top. And it’s incredibly it’s a big legal maze. It’s tough to keep up with unless you’re going to limit the areas you want to practice in, which is what I do and certainly what I would recommend to anyone who’s entering the legal practice. 

And I wanted to ask you about those laws that you’ve said in the book that there’s an evolution in laws they change over time, although you say that old laws rarely go away and there’s no housecleaning. So why has been a housecleaning in the legal system? 

Yeah, I don’t think there’s much incentive to really I think the focus, if you’re in this is somewhat speculation on my part, because I don’t know much about politics and government. I don’t know the inner workings of government, certainly. But when you’re passing a new law, if you’re a legislator, you’re not concerned with cleaning up old stuff. You just want to get your new law out. There could be a very you know, could be a much needed law, could just be a politically popular law. And, you know, that’s what you’re going to be focusing on in these old laws can jump out and bite you from time to time. 

Like the oral sex one. Exactly. Exactly. Or adultery or things like that. 

You know, then there’s talk about this fellow from WikiLeaks whose name is escaping me right now, but he’s there trying to find a way to prosecute him. And they’re going to use at least they’re speculating that they might use an incredibly old, antiquated law that no one even, you know, knows about anymore. So these old laws, there’s not much incentive for the government really to clean them up and get them off the books. 

I think that’s why they remain there and we just keep stacking on top of them. 

In many areas of the law, at least, there seems to be seems to me to be very dangerous to have these old laws detaining. Iran for people to to access and manipulate it. 

It certainly couldn’t. It’s not just in criminal laws either, you know. As an Arctic article in The Wall Street Journal recently where they’re talking about, you know, people being prosecuted in the business context for things they didn’t even know where illegal it’s it can be risky to run or own a company these days, especially if it’s a public company. There’s all kinds of strict liability laws and vicarious liability laws. So, yeah, before you get into any type of management position, even for people who aren’t lawyers, just managers, you really have to familiarize yourself with those things and know what’s out there. And will you ever know every bit of law? Probably not. 

You know, there’s always some risk there. And I think because of the number of laws, there’s a significant amount of risk depending on, you know, what type of job or career you have. 

Absolutely. And just came back to the catch phrases for a moment. There are many common phrases to be found in legal myths. And you treated a lot of these in your book. Read me my rights. Drop the charges. Plead insanity, citizen’s arrest. So are these the legal systems version of urban legends? 

Yeah, I think certainly they can turn into that. The ones you mentioned are good examples. And, you know, there’s some others. Possession is nine tenths of the law. I think we’ve all heard that. And I don’t even know what that’s exactly supposed to mean. But I suspect any any any lawyer who works in property law will tell you that, you know, that that’s a myth. But I think more commonly what happens is these cases get distorted over time and kind of morph into these urban legends. You know, a good example is, is the McDonald’s liability case for the for the hot coffee might. My coauthor, Amy Kushner wrote a great chapter on that topic and she brought out a lot of interesting facts that kind of get lost, you know, over the months and years. 

Sounds very simple on the surface, but it’s not that simple. 


And I think those are forgotten in the stories kind of take on a life of their own after a while. And Amy did a good job of bringing that out. And I think people who read that chapter will think differently of the case and get an idea of of the legal reasoning process as well. 

Certainly, it was treated in Seinfeld as well. So that’s perpetuated the myth. 

I would think that’s another great example. Yes. The TV myth with the with the lawyer and Kramer’s coffee burn. I think it was so. Yeah, that that’s another example of how TV or film can perpetuate these myths. Now, not to say they shouldn’t do it. It was a pretty entertaining episode. If I recall. But that’s that’s exactly how these things get perpetuated. 

So you mentioned earlier that fact is stranger than fiction in law. And I wanted to ask about some of the surprising truths about the legal system. 

Sure, sure. Yeah. There’s I certainly have some favorites that come to mind. One of them, maybe my single favorite in this. I don’t think this is in the book. This is something that’s happened after the book was published, at least in Wisconsin. You can be someone who has never been even accused of a sex crime and you can be forced to register as a sex offender. I think that’s a great example of fact being stranger than fiction. Well, the law defines which crimes are subject to the sex offender registry. And there’s a great case in Wisconsin where a 17 year old boy took his body, also a 17 year old boy with him to collect a debt while his friend didn’t want to go. So this this defendant was ultimately convicted of falsely imprisoning him because he took him with to collect the debt against as well. Now, the law says that false imprisonment of a minor because the boy was 17 is subject to the sex offender registry. Now, the defendant was only 17, but in Wisconsin, we define criminal as being seven, as an adult, as being 17 years old or older. And the criminal law system. So here’s a 17 year old who took a 17 year old buddy to collect a debt. And now the defendant has to register on the sex offender registry. His lawyer, challenged as being unconstitutional, says, look, he’s not a sex offender, never even been accused of a sex crime. This is on top of that. This is cluttering up the sex offender registry and it’s making it useless because, you know, now, including people who have never even been accused of a sex crime and the court said no. The purpose of the sex offender registry is much broader than that. And he has to register. So he has to register. In effect, when he refused, he was convicted of another felony. So I think that’s a great example of fact being stranger than fiction, that someone who’s never even been accused of a sex crime has to register as a sex offender. It just doesn’t sit well with him, with most people, I don’t think. And that’s one case that I wrote about in my weekly law blog, because it’s just to me, it’s pretty shocking and pretty wrongly decided. The Wisconsin Supreme Court, to their credit, two justices did dissent and they said, no, this is not this is not good law. We shouldn’t be making this young 17 year old register as a sex offender for the rest of his life when he never did anything remotely sexual. But, you know, that’s the way of it. And truth is stranger than fiction. I think another great example, and there is a chapter in the book on this is that. It’s possible for a man to be ordered to pay child support for someone else’s child if a person is, let’s say, a man is married to a woman, they’re getting a divorce. And if the woman becomes pregnant before the divorce is final, the husband will be on the hook for the child support. He can even prove through testing that the child isn’t his, but he will still be on the hook for child support or could be, I should say, again, depending on the state’s law, because there’s you know, the state doesn’t want they don’t want just to know that it’s not his child. They want him to be able to say, one is not my child. And two, I can tell you whose it is exactly. That way there will be someone to support the child. Otherwise the state will be on the hook for supporting child or could be. So there’s another great example how truth is stranger than fiction. There’s people would be shocked to learn that. I can prove to you that that’s not my child yet. I’m still responsible for child support. That probably doesn’t sit well with most people. It certainly doesn’t. 

With me doesn’t seem fair. Yeah, it doesn’t really fair. I mean, you know, we certainly, if at all possible, we wouldn’t want to use taxpayer money to pay for children. 

But on the other hand, it doesn’t seem fair to put all the burden of the costs of raising a child on a person who is not the father when this could be absorbed by the state. You know, the state obviously has much more resources than any single person. So it seems very unfair that that’s I think those are my two favorite examples of of of absurdities in the law. There are certainly many others that we’ve mentioned driving a car or I should say can be convicted of drunk driving without driving a car. You know, strict liability. Sex crimes can be very unfair and absurd. You could there have been cases where people have been convicted for sleeping with a minor when in fact they thought the minor was an adult. The minor had a fake ID card. They had good reason to believe the minor was an adult. And depending on the law in the state, that could be a crime and it could be a felony. So that’s another example of just an absurd law. I think most people that just goes against their basic sense of fairness. 

It always seems to come down to the to the individual situation in case as well. 

Sometimes it does. But the state could have a strict liability law which says, look, you could be we don’t care if you did everything imaginable to check on the age of that person and you thought that person was 25. And if the person is 17, doesn’t matter. It’s a crime. So a lot of times states take away your ability to defend on sex crimes and say that’s a strict liability. If you sleep or have sexual contact with a minor, you are guilty of that crime period. You don’t have any defense to it, at least not the defense that, you know, there was a mistake of age or that the minor misrepresented his or her age. So sometimes boils down to the facts and sometimes it doesn’t. You know, it really depends on the on the state’s law. So I think those are a few examples of some pretty absurd laws are certainly many more in the book. But those are my favorites, I think. 

Now, Michael, I always like to ask my guests for a little bit of wisdom from their area of expertize. So what’s so sound bite about skepticism in the law for our point of inquiry listeners? 

Well, I would say because my area is criminal defense, I would say. Don’t you know, when you hear something on the news, you hear something on TV about a person who’s been arrested or accused of a crime? Don’t automatically presume guilt. Eyewitnesses are wrong. A lot of the times they’re mistaken. People lie. Prosecutors don’t always prosecute only the guilty. And I think, you know, a classic example of this is the Duke lacrosse case where those three Duke lacrosse players were prosecuted pretty far into the criminal process based on all those things, whether mistaken identification, some lies and prosecutors, you know, prosecuting people, they had reason to believe we’re not guilty. So don’t jump the gun. Be as skeptical as you are in your everyday lives to the legal system as well. And I would say the second thing is don’t presume that lawmakers or even judges or even Supreme Court justices are right. Don’t be impressed with the convoluted language that we will hear sometimes use. And don’t be impressed with the legal ease. And, you know, think about the law and ask yourselves, does it make sense? Is it just is it rational? 

That’s wonderful advice. Well, Michael, thank you so much. It was a pleasure to speak with you. 

Thank you for having me. It’s been a lot of fun. 

Thank you for listening to this episode of Point of Inquiry. You can find out more about Michael ATSE to Keaney Law dot com. Read his blog. The legal watchdog at the legal watchdog dot blogspot dot com and find his book. But they didn’t read me my rights from the point of inquiry home page to participate in the online conversation about this show. Please join our discussion forum at point of inquiry dot org. The views expressed on point of inquiry aren’t necessarily the views of the Center for Inquiry, nor its affiliated organizations. Questions and comments on today’s show can be sent to feedback at point of inquiry dot org. 

Point of inquiry is produced by Adam Isaac in Elmhurst, New York. And our music is composed by Emmy Award winning Michael Waylan. Today’s show also featured contributions from Debbie Goddard. I’m your host, Karen Stollznow. 

Karen Stollznow