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. 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. 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.

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 some mention of 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 "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.

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 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.

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. 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 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, 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.

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

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,

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

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

All links Retrieved November 18, 2007.

• Rights of the People: Individual Freedom and the Bill of Rights
• The History of Presumed Innocence
• The effects of presuming innocence
• Coffin v. United States, 156 U.S. 432; 15 S. Ct. 394

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