Rights of accused

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The rights of the accused is a class of rights that apply to a person in the time period between when they are formally accused of a crime and when they are either convicted or acquitted. Rights of the accused are generally based on the maxim of "innocent until proven guilty" and are embodied in due process. The burden of proof is thus on the prosecution, which has to convince the court, whether a jury or only judge or magistrate, that the accused is guilty beyond a reasonable doubt. In principle, the defense does not have to "prove" anything. However, the defense may present evidence tending to show that there is doubt as to the guilt of the accused.

Promotion of the rights of the accused sometimes comes into conflict with promotion of victim's rights. One example of this is conflict between the right of the accused to personally confront his accusers and the law that protects child witnesses from the intimidation that they may feel in the courtroom.

Contents

The emergence of greater rights of the accused, beyond those involved in the trial itself to include pre-trial and post-trial rights, and even the concern that such rights conflict with the rights of victims, reflects the increasing concern for human rights for all people that continues to grow in the modern world.

Overview

The rights of the accused hold a particularly important role in the legal process. They balance the desire of a state to maintain order with the rights of citizens to exist freely. This collection of laws ensures that justice is served equally to all brought into the criminal system. These rights represent a great shift away from the totalitarian powers enjoyed by the state in medieval ages and even into the modern era as the value of people and their individual rights was emphasized.

Fundamentally, the rights of the accused involve the right to a fair trial, usually a trial by a jury of one's peers unless a bench trial (by judge only) is requested, representation by counsel, and the opportunity to confront one's accusers.

In the twentieth century these rights were expanded from simply during the trial to also include pre-trial and post-trial rights. Pre-trial rights include reasonable bail, and prohibition against being held indefinitely without the opportunity to post bail, as well as the right to a speedy trial, avoiding the situation where the accused languishes in jail for lengthy periods without the possibility of defending himself. Post-trial rights include the prohibition of double jeopardy (trying a person twice for the same crime) and the right to appeal the verdict in one's case.

In Practice

Guaranteeing the presumption of innocence extends beyond the judicial system. For instance, in many countries journalistic codes of ethics state that journalists should refrain from referring to suspects as though their guilt was certain. For example, they use the terms "suspect" or "defendant" when referring to one suspect of a crime, and use "allegedly" when referring to the criminal activity.

More subtly, publishing of the prosecution's case without proper defense argumentation may in practice constitute presumption of guilt. Publishing a roster of arrested suspects may constitute undeserved punishment as well, since in practice it damages the reputation of innocent suspects.

Modern practices aimed at curing social ills may run against presumption of innocence. Some civil rights activists feel that pre-employment drug testing, while legal, violates this principle, as potential employees are presumed to be users of illegal drugs, and must prove themselves innocent via the test. Similarly, critics argue that some dispositions of laws against sexual harassment or racial discrimination show a presumption of guilt. These dispositions were meant to ease the burden of proof on the victim, since in practice harassment or discrimination practices are hard to prove.

Civil rights activists note that the well-meaning practices so adopted may have a deleterious effect on justice being served. An example is the use of a screen in sexual assault cases, which is set up in some jurisdictions to prevent the complainant from being distressed at the sight of the accused. Where a victim was in fact victimized by the accused, this may be argued to serve the principles of therapeutic justice.[1] However, where an accused is in fact innocent, this may send a message to the jury that the court has already accepted that in fact a crime was committed, which burden of proof has traditionally been on the prosecution, and which furthermore is a matter of fact that is not for the court to judge, but rather, for the jury. Not only this but also even more importantly, such a shield may also send a message that the complainant is upset by the sight of the accused, once again because guilt is seen to have been assumed by the court in so shielding the complainant. The psychological effects of such a screen have not yet been well researched, but the tension between the two views is a problem for therapeutic justice, which must weigh protection of genuine victims from genuine offenders against the potential for an unjust conviction that such protection may create.[2]

Differences between legal systems

A common opinion held in countries based on common law is that in civil law or inquisitorial justice systems, the accused does not enjoy a presumption of innocence. This idea results from the fact that in most civil law nations, an investigating magistrate supervises police investigations. However the magistrate does not determine innocence or guilt and functions much as a grand jury does in common law nations. Furthermore, in many civil law jurisdictions (such as Germany and Austria), police investigations are supervised by a prosecutor, and a judge is involved only in cases where a warrant is required for purposes of the investigation for restrictive measures as arrest, search and seizure, or wiretapping. Courts are often organized in a manner that it will not be the same judge who will determine the guilt or innocence of the suspect. In particular, a court under the civil law system is not bound to a confession of guilt of an accused person. Thus, technically, the accused cannot plead "guilty."

In general, civil law based justice systems, especially in Europe, avoid use of the term "innocent," since it carries a moral charge separate from the phrase "not guilty." It is argued a person who is found "not guilty" still cannot always claim to be innocent, for example if he/she has used lethal force in case of valid self-defense. The wording is therefore delivered in a more formal and neutral manner, such that an accused is either declared "guilty," "not guilty for lack of a crime," "not guilty due to lack of evidence," or "not guilty due to lack of jurisdiction" (in the case that a child or lunatic is accused). Such plain language is better suited for the predominantly written proceedings and less emotionally-charged nature of civil law trials.

Miranda Rights and International Equivalents

In the United States, the "Miranda warning" is a warning given by police to criminal suspects in police custody, or in a custodial situation, before they are asked questions relating to the commission of a crime. A custodial situation is where the suspect's freedom of movement is restrained although he is not under arrest. An incriminating statement by a suspect will not constitute admissible evidence unless the suspect was advised of his or her "Miranda rights" and made a knowing, intelligent, and voluntary waiver of those rights. However, police may request biographical information such as name, date of birth, and address, without first reading suspects their Miranda warnings.

The Miranda warning consists of telling detainees that:

  • One is under arrest
  • That one may remain silent if they wish to
  • That one has the right to consult an attorney
  • That if one cannot afford an attorney, one will be provided for them[3]

International equivalents of the Miranda rights usually include the right to be informed of why one is being arrested, to silence to avoid self incrimination, to retain an attorney, to be examined by a physician, translation assistance, consular assistance, and so forth.

Countries that have Miranda right equivalents include (but are not limited to) Australia, Canada, France, Germany, UK, and the European Union.[4]

Notes

  1. International Network on Therapeutic Jurisprudence University of Arizona Law School. Retrieved December 10, 2007.
  2. Why do eyewitnesses identify the wrong person? Innocence Project. Retrieved December 10, 2007.
  3. Miranda v. Arizona FindLaw. Retrieved December 10, 2007.
  4. Freedom Security and Justice European Union. Retrieved December 10, 2007.

References

  • Coldrey, J. 1990. "The Right to Silence Reassessed." Victorian Bar News, Vol. 74, 25.
  • Coldrey, J. 1991. "The Right to Silence: Should it be curtailed or abolished?" Anglo-American Law Review, Vol. 20, 51.
  • Stevenson, N. 1982. "Criminal Cases in the NSW District Court: A Pilot Study." in J. Basten, M. Richardson, C. Ronalds and G. Zdenkowski (eds). The Criminal Injustice System. Sydney: Australian Legal Workers Group (NSW) and Legal Service Bulletin.
  • 2005. "Rehnquist's legacy" The Economist, 28. Retrieved December 10, 2007.

External links

All links retrieved July 13, 2015.


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