Rights of accused

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. These rights can mostly be found in the fourth, fifth, and sixth amendments of the United States Constitution.

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.

Presumption of innocence is a legal right that the accused in criminal trials has in many modern nations. It states that no person shall be considered guilty until finally convicted by a court. The burden of proof is thus on the prosecution, which has to convince the court 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 a doubt as to the guilt of the accused.

Conversely, in many authoritarian regimes the prosecution case is, in practice, believed by default unless the accused can prove they are innocent, a practice called presumption of guilt. Many people believe that presumption of guilt is unfair and even immoral because it allows the strategic targeting of any individual, since it's often difficult to firmly establish proof of innocence (for example, it's often impossible to establish an alibi if the person is home alone at the time of the crime).

In many countries belonging to the Anglo-Saxon legal tradition, the Principle of Presumption of Innocence is phrased such that "the accused is presumed to be innocent until it has been declared guilty by a court." This abbreviated form neglects the point that a person may continue to appeal a decision, and will be presumed innocent until a final decision is made. Therefore people who have been found guilty in lower courts of law, but have pending appeals, cannot have their citizen's rights (such as to vote and to be elected) stripped nor can they be permanently removed from their offices, but merely suspended.

The fundamental right

This right is so important in modern democracies that many have explicitly included it in their legal codes and constitutions:

• In Canada, section 11(d) of the Canadian Charter of Rights and Freedoms states: "Any person charged with an offence has the right to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal."

• In France, article 9 of the Declaration of the Rights of Man and of the Citizen, of constitutional value, says "Everyone is supposed innocent until having been declared guilty." and the preliminary article of the code of criminal procedure says "any suspected or prosecuted person is presumed to be innocent until their guilt has been established." The jurors' oath reiterates this assertion.

• Although the Constitution of the United States does not cite it explicitly, presumption of innocence is widely held to follow from the 5th, 6th and 14th amendments. See also Coffin v. United States

• The Universal Declaration of Human Rights, article 11, states: Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which they have had all the guarantees necessary for their defence.

• The Convention for the Protection of Human Rights and Fundamental Freedoms of the Council of Europe says (art. 6.2): "Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law." This convention has been adopted by treaty and is binding on all Council of Europe members. Currently (and in any foreseeable expansion of the EU) every country member of the European Union is also member to the Council of Europe, so this stands for EU members as a matter of course.

The presumption of innocence in practice

Few systems have had, de jure, presumption of guilt. Accusations of presumption of guilt generally do not imply an actual legal presumption of guilt, but rather denounce some failures in ensuring that suspects are treated well and are offered good defense conditions. Typical infringements follow:

• In some systems, suspects may be held on long periods on remand, while inquiries proceed. Such long imprisonment constitutes, in practice, a hardship and a punishment for the suspect, even though he or she has not yet been sentenced. (see speedy trial)
• Courts may prefer the testimonies of persons of certain class, status, ethnicity, gender, or political standing over those of others, regardless of actual circumstances.
• In Europe and the Americas, prior to the French Revolution, it was common that justice could have suspects tortured so as to extract a confession from them. Even though the suspects were not, at this point, legally guilty, they were exposed to considerable pain, often with lasting physical consequences.
• Many public institutions, such as universities will punish members accused of felonies after they are indicted even if they have not been convicted. An example is the 2006 Duke University lacrosse team scandal where the accused were suspended even though they had not been convicted under a policy that punishes students who are merely indicted.

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 "suspect" or "defendant" when referring to the suspect, and use "allegedly" when referring to the criminal activity that the suspect is accused of.

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. Private groups fighting certain abuses may also apply similar tactics, such as publishing the real name, address, and phone number of suspects, or even contacting the suspects' employer, friends and neighbors (as an example, Perverted-Justice.com does so in order to shame suspected child molesters).

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] [2]. 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.[3]

Differences between legal systems

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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. To common law countries with adversarial systems, the civil law criminal justice system appears to be hopelessly biased, since the judge should remain as impartial as possible. 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 jursidictions (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, e.g., 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 the view of supporters of the inquisitorial system, the latter is less biased than the adversarial system, since the judges supervising cases are independent and bound by law to direct their enquiries both in favor or against the guilt of any suspect, compared to prosecutors in an adversarial system, who will, it is claimed, look only for evidence pointing to guilt and whose re-appointments may depend on the number of successful prosecutions that they have brought.

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 quite a number of cases, courts had acquitted accused persons who had made a confession before the court, because it was found that the confession had not been credible. A common motive for false confessions is the aim of the accused to distract suspicion from a third person, to whom the confessing person maintains a personal relation. Supporters of the inquisitorial system maintain that the possibility of acquittal of a confessing accused is required to guarantee objective truth in criminal proceedings. Since criminal proceedings were mainly instituted in the public interest, the personal pleadings of the accused could not be formally decisive for the case. For this reason, the accused person is not regarded as a party in criminal proceedings, but rather as a participant - of course with own specific rights. The reluctance of legislators to accept deals between prosecution, the accused, and the court is also based on to the notion on public interest involved in criminal proceedings and the suspicion that such deals may tamper the finding of objective truth.

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, e.g. if he/she has used lethal force in case of valid self-defence exerted against a mentally handicapped attacker with very low IQ. 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.

Another common misunderstanding which leads to the assumption that the presumption of innocence is not applied in civil law systems might be based on the fact that many jurisdictions allow administrative bodies to fine minor misdemeanors, in particular traffic violations, without prior obtaining a court judgment and sometimes "on the spot." However, all procedural laws in all continental European countries which grant such rights to administrative bodies allow for a motion for independent judicial review of the case.

1. REDIRECT Template:Criminal procedure (investigation)

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 warnings were mandated by the 1966 United States Supreme Court decision in the case of Miranda v. Arizona as a means of protecting a criminal suspect's Fifth Amendment right to avoid coercive self-incrimination (see right to silence).

Miranda v. Arizona

In 1963, Ernesto Miranda was arrested for kidnapping and rape. He made a confession without having been told of his constitutional right to remain silent, and his right to have an attorney present during police questioning. At trial, prosecutors offered only his confession as evidence and he was convicted. The Supreme Court ruled (Miranda v. Arizona, 384 U.S. 436 (1966)) that Miranda was intimidated by the interrogation and that he did not understand his right not to incriminate himself or his right to counsel. On this basis, they overturned his conviction. Miranda was later convicted in a new trial, with witnesses testifying against him and other evidence presented. He served eleven years.

When Miranda was later killed in a knife fight, his killer received the Miranda warnings; he invoked his rights and declined to give a statement.

In 2000, the Supreme Court confronted the issue of whether Miranda had been superseded by the enactment of the Crime Control and Safe Streets Act of 1968. A 5-4 majority ruled that the answer was no, because Miranda had articulated a constitutional rule which only the Court itself (or a constitutional amendment) could reverse. Dickerson v. United States, 530 U.S. 428 (2000).

Miranda rights

The Supreme Court did not specify the exact wording to be used when informing a suspect of his or her rights. However, the Court did create a set of guidelines which must be followed. The ruling states:

...The person in custody must, prior to interrogation, be clearly informed that he or she has the right to remain silent, and that anything the person says may be used against that person in court; the person must be clearly informed that he or she has the right to consult with an attorney and to have that attorney present during questioning, and that, if he or she is indigent, an attorney will be provided at no cost to represent him or her.

As a result, American English has acquired the verb Mirandize, meaning to read to a suspect his or her Miranda rights (when that suspect is taken into custody for the purpose of questioning).

Notably, the Miranda rights do not have to be read in any particular order, and they do not have to precisely match the language of the Miranda decision, as long as they are adequately and fully conveyed. California v. Prysock, 453 U.S. 355 (1981).

Typical usage

Though every U.S. jurisdiction has its own regulations regarding what, precisely, must be said to a person when they are arrested or placed in a custodial situation, the typical warning is as follows:

You have the right to remain silent. Anything you say can and will be used against you in a court of law. You have the right to have an attorney present during questioning. If you cannot afford an attorney, one will be provided for you.

The courts have since ruled that the warning must be "meaningful," so it is usually required that the suspect be asked if he understands his rights. Sometimes, firm answers of "yes" are required. An arrestee's silence is not a waiver. Evidence has been ruled inadmissible because of an arrestee's poor knowledge of English and the failure of arresting officers to provide the warning in the arrestee's language.

Also because of various education levels, officers must make sure the suspect understands what the officer is saying. It may be necessary to "translate" to the suspect's level of understanding. Courts have ruled this admissible as long as the original waiver is said and the "translation" is recorded either on paper or on tape.

The right of a juvenile to remain silent without his or her parent or guardian present is provided in some jurisdictions.

Some departments in New Jersey, Nevada, Oklahoma, and Alaska add the following sentence:

We have no way of giving you a lawyer, but one will be appointed for you, if you wish, if and when you go to court.

Even though this sentence can be somewhat ambiguous to some hapless laypersons — who can, and who have, interpreted it to mean that "you will not get a lawyer until you confess and are arraigned in court" — the U.S. Supreme Court has approved of it as an accurate description of the procedure in those states. Duckworth v. Eagan, 492 U.S. 195 (1989) (upholding use of sentence by Hammond, Indiana police).

In border states, including Texas, New Mexico, Arizona, and California, suspects who are not United States citizens are given an additional warning:

If you are not a United States citizen, you may contact your country's consulate prior to any questioning.

California, Texas, New York, Florida, Illinois, North Carolina, and Pennsylvania also add the following questions:

Do you understand the rights I have just read to you? With these rights in mind, do you wish to speak to me?

A "yes" answer to both completes the waiver. A "no" to either invokes the right.

Under the Uniform Code of Military Justice, Article 31 provides for the right against self-incrimination. Interrogation subjects under Army jurisdiction must first be given Department of the Army Form 3881(PDF), which informs them of the charges and their rights, and sign it. Other services likely have similar forms.

It has been discussed if a Miranda warning—if spoken or in writing—could be appropriately given to disabled persons. For example, "the right to remain silent" means little to a deaf individual and the word "constitutional" may not be understood by people with only an elementary education. The content of a Miranda warning can be understood by a 6th- to 8th-grade pupil while only 10 to 15 percent of prelingually deaf people have been found to be that competent. Police departments have been advised not to say Miranda warnings to deaf people if a lawyer is not present, and videotaping both the Miranda warning and its waiver has also been suggested. In one case, a deaf murderer is being kept at a therapy station until he is able to understand the meaning of the Miranda warning and other judicial proceedings.

Confusion regarding use

Due to the prevalence of American television programs and motion pictures in which the police characters frequently read suspects their rights, it has become an expected element of arrest procedure. In the 2000 Dickerson decision, Chief Justice William Rehnquist wrote that Miranda warnings had "become embedded in routine police practice to the point where the warnings have become part of our national culture." Dickerson v. United States 530 U.S. 428 (2000). However, police are only required to warn an individual whom they intend to subject to custodial interrogation at the police station, in a police vehicle or when detained. Arrests can occur without questioning and without the Miranda warning—although if the police do change their mind and decide to interrogate the suspect, the warning must then be given. Furthermore, if public safety (see New York v. Quarles) warrants such action, the police may ask questions prior to a reading of the Miranda warning, and the evidence thus obtained can sometimes still be used against the defendant.

Because Miranda only applies to custodial interrogations, it does not protect detainees from standard booking questions: name, date of birth, address, and the like. Because it is a prophylactic measure intended to safeguard the Fifth Amendment privilege against self-incrimination, it does not prevent the police from taking blood from persons suspected of driving under the influence of alcohol without a warrant.

Currently there is a question about corrections and Miranda. If an inmate is in jail and invoked Miranda on one case, it is unclear whether this extends to any other cases that he or she may be charged with while in custody.

Equivalent rights in other countries

Australia

Within Australia, the right to silence derives from common law. The uniform position amongst the states is that neither the judge nor the jury is permitted to draw any inference which is unfavourable to the defendant, where he/she does not answer police questions. While this is the common law position, it is buttressed by various legislative provisions within the states. For instance s.464J of the Crimes Act 1958 (Vic) and s.89 of the Evidence Act 1995 (NSW).

It has also been upheld by the High Court in the case of Petty v R (1991) 173 CLR 95. However, where a defendant answers some police questions, but not others, an inference may sometimes be drawn about the questions he refused to answer. (See Coldrey, below.)

The current caution used in New South Wales is:

You are not obliged to say or do anything unless you wish to do so, but whatever you say or do may be used in evidence. Do you understand?

Where a defendant refuses to speak to the police, but then speaks to an undercover member of the police, that evidence is likely to be excluded so as to ensure that the police do not avoid their limitations. However, if a defendant speaks to a person who is not a member of the police and who is fitted with a listening device, that evidence would be admitted.

Australian research indicates that very few suspects actually refuse to speak. Stevenson’s research (see below for citation) indicates that only 4% of suspects who are subsequently charged and tried in the Sydney District Court remain silent during interviews. The Victorian DPP found that 7-9% of suspects refused to answer police questions.

A number of states have conducted Enquiries into the adoption of the English changes set out in the Criminal Justice and Public Order Act 1994. See here, here or here All states have rejected such change. As the NSW Report said:

It is reasonable that innocent persons faced with a serious accusation might wish to consider their situations carefully before making any disclosure, especially where the circumstances appear suspicious but it cannot be assumed that they are rational and articulate. In many cases, suspects may be emotional, perhaps panicked, inarticulate, unintelligent, easily influenced, confused or frightened or a combination of these. They may be unable to do themselves justice. Such persons may be well advised to hold their peace, at least at an early stage. They may, of course, have something to hide, but that something may simply be shameful and not a crime, or it may implicate others for whom they feel responsible. The supposition that only a guilty person has a reason for not speaking freely to investigating police is an unreasonable assumption.

It is also important to note that anything said to an Australian police officer should be corroborated, especially by way of video or audio tape. If it is not so corroborated it will be admitted only under exceptional circumstances, S.464H (2)(a) of the Crimes Act 1958 (Vic), and where the circumstances, on the balance of probabilites, justify the reception of the evidence, S.464H (2)(b) of the Crimes Act 1958 (Vic). While initially the police were insulted by this ruling most have now come to find it useful as a way of proving that they did not "verbal" an accused.

Canada

In Canada, equivalent rights exist pursuant to the Charter of Rights and Freedoms. Under the Charter, an arrested person has the right:

• to be informed promptly of the reasons therefore
• to retain and instruct counsel without delay and be informed of that right
• to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful

(See: R. v. Hebert [1990] 2 S.C.R. 15)

Section 11 of the Charter further provides that a person cannot be compelled to be a witness in a proceeding against them (s. 11(c) - protection against self-incrimination) and is presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal (s. 11(d)). Section 14 of the Charter further provides that a translator must be made available so that the person can understand the proceedings against them. This right to a translator extends to the deaf.

While Section 7 of the Charter guarantees the right to remain silent, Canadian law does not entitle the criminal suspect to have Counsel present during the course of an interrogation. Once a suspect has asserted their right to Counsel, the Police are obliged to hold off in attempting to obtain evidence until the suspect has had a reasonable opportunity to contact legal counsel, however suspects do not have the right to have Counsel present during the questioning.

England and Wales

Warnings regarding the right against self-incrimination may have originated in England and Wales. In 1912, the judges of the Kings Bench issued the Judges Rules. These provided that, when a police member wished to question a suspect about an offence, the officer should first caution the person that he was entitled to remain silent. The pre-trial operation of the privilege against self-incrimination was further buttressed by the decision in Ibrahim v R [1914] AC 599 that an admission or confession made by the accused to the police would only be admissible in evidence if the prosecution could establish that it had been voluntary. An admission or confession is only voluntary if made in the exercise of a free choice about whether to speak or remain silent:

In R v Leckey (1943) CAR 128 the Court of Criminal Appeal said:

... an innocent person might well, either from excessive caution or for some other reason, decline to say anything when charged and cautioned, and if it were possible to hold that out to a jury as a ground on which they might find a man guilty, it is obvious that innocent persons might be in great peril.

Therefore a caution of the form

You have the right to remain silent, but anything you do say will be taken down and may be used in evidence against you.

was used. The Criminal Justice and Public Order Act 1994 amended (some say abolished) the right to silence by allowing adverse inferences to be drawn by the jury in cases where a suspect refuses to explain something, and then later produces an explanation. In other words the jury is entitled to infer that the accused fabricated the explanation at a later date, as he refused to provide the explanation during police questioning. The jury is also free to make no such inference. The new caution is:

You do not have to say anything, but it may harm your defence if you do not mention, when questioned, something which you later rely on in court. Anything you do say may be given in evidence.

or

You do not have to say anything unless you wish to do so, but I must warn you that if you fail to mention any fact which you rely on in your defence in court, your failure to take this opportunity to mention it may be treated in court as supporting any relevant evidence against you. If you do wish to say anything, what you say may be given in evidence.

or even (in circumstances where no adverse inference can be drawn from silence)

You do not have to say anything, but anything you do say may be given in evidence.

The caution in England and Wales does not explicitly require that a suspect affirms that he or she understands the caution, and many law enforcement officers do not ask this to prevent a recalcitrant suspect from delaying the investigation by falsely claiming not to understand the caution.

France

In France, any person brought in police custody (garde à vue) must be informed of the maximal duration of the custody, and a number of rights, in a language that this person understands. Among these rights are: the possibility of warning a relative or employer of the custody, that of asking to be examined by a physician, that of discussing the case with an attorney. Witnesses against whom there exist indictments (or who are cited as suspects) cannot be heard under oath, and thus do not risk prosecution for perjury. Such witnesses must be assisted by an attorney, and must be informed of these rights when heard by the judiciary. Suspects (any person against whom exist plausible causes of suspicion) must be informed of their right to remain silent, to make statements, or to answer questions. In all cases, an attorney can be designated by the head of the bar if necessary.

Germany

According to § 136 StPO (Strafprozessordnung = Criminal Procedure Code) a suspect, arrested or not, has to be informed before any interrogation:

• about which crime he is charged
• about his right to remain silent
• about his right to question an attorney before the interview
• about his right to name any evidence in his favour to be obtained

It is not allowed to draw any inference from the complete silence of the accused in any stage of the criminal proceedings. However, it is allowed to draw conclusions if the accused remains silent only to certain questions about the same crime.

Foreign suspects have the following additional rights:

• translation assistance
• consular assistance

European Union

Within the European Union, a gradual process of harmonising the laws of individual countries has resulted in calls for a common letter of rights which would apply to all EU citizens. [4] The proposed common standard would protect:

• access to legal advice;
• translation assistance as needed;
• protection for those unable to follow the proceedings; and
• consular assistance for foreign detainees

These would be contained in a "letter of rights" which would be a printed document to be given to suspects after they are detained and before interrogation[5]. The right to silence does not fall under the proposed common standard. This has been criticised on the grounds that the "letter of rights" would be one from which what some people consider to be the most important right is missing, and that this would be confusing for the accused rather than helpful. On the other hand, obstacles to its enactment include the anti-terrorism laws of certain EU members which conflict with these proposed rights.

References

ISBN links support NWE through referral fees

• Coldrey, J. (1990) "The Right to Silence Reassessed" 74 Victorian Bar News 25.
• Coldrey, J. (1991) "The Right to Silence: Should it be curtailed or abolished?"` 20 Anglo-American Law Review 51.
• "Rehnquist's legacy" The Economist. July 2nd-8th, 2005. p. 28.
• 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.

External links

• [http://usinfo.state.gov/products/pubs/rightsof/accused.htm Rights of the People: Individual Freedom and the Bill of Rights

• The History of Presumed Innocence
• The effects of presuming innocence
• Justice:Denied magazine reports on the miscarriages of justice that occur when the presumption of innocence is not respected.
• Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394

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