This chapter examines the discourse around Faretta waivers in capital cases. Under the US law, criminal defendants, even in capital cases, may decline assistance of counsel and represent themselves at trial as long as their choice is made intelligently and knowingly with ‘eyes open’, similar to the legal standard applied in Miranda decisions. Despite their significant impact on trial fairness, the language of Faretta warnings has not received sufficient attention. By analyzing written Faretta warnings and hearings discussing defendants’ decisions in a sample of California capital cases, this chapter shows that, as in Miranda, linguistic complexity and ritualistic approach to checking comprehension may inhibit defendants’ understanding of their legal options. In both waiver contexts, complex closed questions lead to insufficient assurance of laypersons’ true comprehension of legal waivers, obstructing defendants’ access to justice and reducing the reliability of the proceedings. This initial study recommends further interdisciplinary research on the discourse and practices of Faretta warnings to guide improvements and enhance truly informed choices.

This chapter explores the value of and bases for police legitimacy. In doing so, it distinguishes between descriptive (or perceived, popular) legitimacy, and normative legitimacy, ultimately arguing that the latter is the natural ground of democratic policing and the more critical of the two, given policing’s commitment to practical, substantive justice. One of the principal hazards of descriptive legitimacy is its ability to yield a popular perception of policing’s legitimate authority that can sanction populist sentiments, ones that do not necessarily protect minority rights or honor a commitment to pluralism. Legitimacy is critical in the police pursuit of cooperation, especially in times of epistemic uncertainty, and the argument here is that the careful pursuit of substantive justice that conforms to the requirements of normative legitimacy will yield descriptive legitimacy across a substantial part of the community, and especially among its more marginalized or vulnerable members.

Some courts don’t recognize a right to silence during Terry stops. It’s legal now in some jurisdictions for police to arrest individuals for refusing to answer their questions. That’s court-approved retaliatory arrest. While the law governing pre-Miranda silence remains murky, the reality is clear: the teenagers we train can’t successfully invoke their right to silence during a stop-and-frisk without risking retaliation (whether legal or illegal). Court-sanctioned lies compound the difficulty in navigating police stops. When I train teenagers, my law students and I tell them that police are allowed to lie during Terry stops and at the police station. This fact confuses the teenagers we train. “If the officers will lie and say that I consent, why should I bother telling the officer that I don’t consent to searches?” Why learn one’s rights at all? As one teen put it, “The cop will just say I waived my rights no matter what I do.” Terry v. Ohio justified stop-and-frisk on the basis that police would use these stops to gather “voluntary” statements. But statements are not “voluntary” when made under threat. Once we acknowledge this, we see that Terry was built on a lie.