The mutable defendant: from penitent to rights-bearing and beyond

Legal Studies ◽  
2019 ◽  
Vol 40 (1) ◽  
pp. 113-130
Author(s):  
Rachel Gimson
Keyword(s):  
Due Process ◽  
Jury Trial ◽  
Common Assumption ◽  
State Punishment ◽  
Criminal Defendant ◽  
History Analysis ◽  
Anglo Norman ◽  
Right To Silence ◽  
The Right

AbstractContemporary criminal justice is premised on a rights-bearing defendant safe-guarded by due process from arbitrary state punishment. The paucity of academic commentary on the role of the criminal defendant suggests that there is a common assumption that the role is static. However, the rights-bearing defendant is a relatively new concept. Through a legal history analysis, this paper demonstrates that the defendant's role can mutate in response to pressures placed on the criminal trial. Broadly, there have been three conceptualisations of the defendant: the penitent Anglo-Norman defendant; the advocate defendant of the jury trial; and the rights-bearing adversarial defendant. Importantly, the shift from one conceptualisation to another has occurred gradually, often without commentary or conscious effort to instigate change. There are many contemporary pressures that could be impacting on the rights-bearing defendant. The concept of a mutable defendant provides a new theory through which to analyse these pressures. This paper considers the introduction of adverse inferences regarding the right to silence and disclosure, and the rise of ‘digilantism’. These new pressures, it is suggested, help to facilitate a rhetoric of deservingness that goes against the rights-bearing defendant and raises the risk its role could once again be mutating.

5. Police questioning of suspects

2021 ◽  
pp. 210-274
Author(s):  
Lucy Welsh ◽  
Layla Skinns ◽  
Andrew Sanders
Keyword(s):  
Due Process ◽  
Crime Control ◽  
Investigative Interviewing ◽  
Legal Advice ◽  
Police Interviews ◽  
Right To Silence ◽  
The Right ◽  
Police Questioning

This chapter examines the power of the police to question suspects, both in theory and in practice. It discusses the expanding powers of the police to interrogate, reflecting the drift from due process to crime control; the multiple aims of police interviews; the dwindling away of the right to silence, for example as a result of the introduction of adverse inferences and the ‘sidelining’ of legal advice; the (inadequate) regulation of interrogation, for example, through trial remedies founded on interviews being ‘unfair’ or ‘oppressive’ ; traditional police interview tactics; the development of investigative interviewing, based on the PEACE model; why the innocent confess and the role of coercion and suggestibility in this; and the need for a corroboration rule.

6 Extraterritorial Application of U.S. Law

2020 ◽  
Author(s):  
Bradley Curtis A
Keyword(s):  
Due Process ◽  
The United States ◽  
Criminal Prosecution ◽  
Constitutional Rights ◽  
Habeas Corpus ◽  
State Laws ◽  
Guantanamo Bay ◽  
The Supreme Court ◽  
The Right

This chapter considers the application of federal and state law to conduct that takes place outside the territory of the United States. It begins by discussing the territorial scope of U.S. constitutional rights. Special consideration is given to the extraterritorial application of the right of habeas corpus in light of the Supreme Court’s 2008 decision in Boumediene v. Bush, concerning the habeas corpus rights of detainees at the Guantanamo Bay naval base in Cuba. The chapter then discusses the “presumption against extraterritoriality” that the Supreme Court applies when interpreting federal statutes. For situations in which the presumption is overcome or is inapplicable, the chapter explains how customary international law principles relating to prescriptive jurisdiction can be relevant in U.S. litigation through application of the Charming Betsy canon of construction. In addition, the chapter discusses the role of “universal jurisdiction” in U.S. litigation and criminal prosecution. Possible constitutional limitations on the extraterritorial application of both federal statutes and state laws, based on due process and other considerations, are also considered.

The Right to Silence

2013 ◽  
Vol 16 (4) ◽  
pp. 527-567
Author(s):  
Anthony Gray
Keyword(s):  
Human Rights ◽  
Due Process ◽  
Home Country ◽  
Early Stage ◽  
Case Law ◽  
Bill Of Rights ◽  
The United Kingdom ◽  
Right To Silence ◽  
The Right ◽  
Current Proposal

In recent years, we have seen continued erosion of an individual’s right to silence. The most recent attempts in the author’s home country, Australia, include a current proposal to adopt the United Kingdom approach, and allow inferences to be drawn from a failure to answer questions at an early stage of investigation, in circumstances where later the person does provide an explanation. An attempt to protect the right to silence in Australia at constitutional level is challenging, because Australia is one of the few Western nations that has not seen fit to enact an express bill of rights. This article will consider whether arguments might be made that, at least in some contexts, infringement of the right to silence is, nevertheless, contrary to the requirements of the Australian Constitution. Courts in other countries around the world have also recognized the right to silence in some circumstances where legislatures have attempted to limit it, and these will be considered in the Australian context, acknowledging appropriate contextual differences. Many countries are faced with the difficulty of reconciling fundamental due process principles with the need for effective investigatory powers sufficient to deal with evolving criminal threats. It will be instructive to consider how a successful balance has been accommodated in a range of jurisdictions. It is believed that the law of the author’s home country could be greatly enriched by engaging with North American and European case law, as this article will seek to demonstrate. The article is considered to be of interest to those outside of Australia, to understand the difficulties in protecting fundamental human rights when an express bill of rights does not exist in the relevant country, and to consider how other ways may be found to protect such rights. In this way, this article will use Australia as the example of a country without an express bill of rights, and will consider how, in that context, fundamental human rights can practically be protected by the courts. The conclusions are considered relevant to a range of nations. Specific examples include Singapore and Malaysia, and to a lesser extent India, as will be explained.

Debating the Indian Supreme Court: Equality, Liberty, and the Rule of Law

2015 ◽  
Vol 13 (3) ◽  
pp. 353-368 ◽  
Author(s):  
Jinee Lokaneeta
Keyword(s):  
Supreme Court ◽  
Due Process ◽  
Political Liberty ◽  
The Rule Of Law ◽  
Criminal Defendant ◽  
Recent Scholarship ◽  
The Supreme Court ◽  
Indian State ◽  
Indian Supreme Court

In this essay, I explore some of the contemporary debates on the role of the Indian Supreme Court in the context of equality and liberty at a moment when it appears that the very reasons for the celebration of judicial review and interventions are under attack by progressive scholars and activists. In reviewing the debates on the role of the Court, I focus on one particular contention that since the realm of social/equality was paramount for the Indian state as a whole, and the Supreme Court post-emergency, the realm of political/liberty was consequently ignored. By revisiting the debate on equality trumping liberty, I acknowledge the critiques of the Court but also point to ways in which certain facets of political liberty do get addressed even in the absence of a focus on liberty. Even if by themselves these judicial interventions may be inadequate to create a due process revolution as far as criminal defendant rights are concerned, they create an “arsenal of tools” available for those concerned with liberty and justice. At the very least, such a conception portrays the Court as less unidimensional than characterized by recent scholarship and retains the Court as a productive site of contestation.

scholarly journals Directions of improvement of normative regulation of judicial status of investigating judge

Legal Ukraine ◽  
2019 ◽  
pp. 38-47
Author(s):  
Svetlana Sharenko
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Due Process ◽  
Control Function ◽  
Legal Regulation ◽  
Private Life ◽  
International Standards ◽  
Judicial Control ◽  
The Right

The article deals with legal regulation of the procedural status of an investigating judge. The author examines the standards that are formulated in the relevant international legal acts, in the practice of the ECHR, in the positions expressed by European experts, and relates to the activities of an investigating judge. They are classified into three groups: (a) Standards defining as a whole the requirements for the place and role of the court in the implementation of criminal justice, and therefore extend to all judicial functions, including judicial control function; b) standards defining the requirements for the organization and implementation of the judicial control function at the stage of pre-trial investigation; c) standards that determine the requirements for observance of human rights and freedoms, and thus serve as guiding points for subjects exercising judicial control powers. Standards defining in general the requirement for the place and role of the court in the implementation of criminal justice (such as the availability of justice, binding judgments, fair trial, due process hearing, equality before the law and the court, parties’ competition, transparency of the judicial system etc.), as well as standards that define requirements for the observance of human rights and freedoms (such as the right to liberty and security of person, the right to respect for private life, the right to protection, etc.) have already been sufficiently studied at the level of special investigations. The subject of this study is international standards, which determine the requirements for the organization and implementation of judicial control at the stage of pre-trial investigation. The author examines the standards of protection of constitutional rights by the court, a standard for clearly demarcating the role of investigator, prosecutor and investigating judge in order to ensure real competition at the stage of pre-trial investigation; the standard of the materiality of the right of restriction; standard of urgency of judicial control; the standard of the prohibition of the participation of an investigating judge in the examination of the merits. Key words: standards of activity of an investigating judge, judicial control powers, judicial control, the investigating judge.

scholarly journals The House Always Wins: Systemic Disadvantage for Criminal Defendants and the Case against the Prosecutorial Veto

2018 ◽  
Author(s):  
Evan G. Hall
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Criminal Procedure ◽  
Jury Trial ◽  
Annual Review ◽  
Trial Judge ◽  
Criminal Justice Reform ◽  
Criminal Defendant ◽  
The Right

102 Cornell L. Rev. 1717 (2017)In the Preface to the 44th Annual Review of Criminal Procedure, Judge Alex Kozinski levels a number of criticisms against the modern American criminal justice system. Central among those criticisms is his assessment of the fundamental imbalance in criminal trials between the prosecution and the defense: “[W]e like to boast that our criminal justice system is heavily tilted in favor of criminal defendants because we’d rather that ten guilty men go free than an innocent man be convicted. There is reason to doubt it, because very few criminal defendants actually go free after trial.” Judge Kozinski’s concern—that the system is rigged to some degree in favor of the prosecution—is a relatively common one among defense attorneys and criminal justice reform advocates. Less common, however, are the specific measures Judge Kozinski proposes to ameliorate the criminal justice system’s flaws. One of his proposals that would work to rectify this imbalance centers on the right of the accused to receive a trial from his peers:Give criminal defendants the choice of a jury or bench trial . . . The prosecution has many institutional advantages, not the least being that they get to go first and thus have their theory of the case laid out before the defendant can present any evidence at all. I would think it fair to let the defendant get the choice of judge or jury.In many states, when a criminal defendant wants to waive the right to a jury trial in favor of a bench trial, the defendant must first obtain the consent of the prosecutor. Scholars and practitioners frequently call the refusal of that consent the “prosecutorial veto,” and what Judge Kozinski proposes is its complete elimination from criminal procedure. The primary goal of this Note is to analyze the merits of that proposal. The Note will provide the relevant legal background to the issue, including the Supreme Court’s jurisprudence on the prosecutorial veto in Part I, and the various federal and state statutory approaches to the issue in Part II. Then, in Part III, the Note will consider the merits of Judge Kozinski’s proposal to eliminate the prosecutorial veto by exploring the policy arguments for it. Finally, in Part IV, the Note will make the case against the prosecutorial veto. The Note will conclude by agreeing with Judge Kozinski’s proposal and arguing for its adoption.

scholarly journals Directions of improvement of normative regulation of judicial status of investigating judge

2020 ◽  
pp. 30-45
Author(s):  
Svitlana Sharenko
Keyword(s):  
Human Rights ◽  
Criminal Justice ◽  
Due Process ◽  
Control Function ◽  
Legal Regulation ◽  
Private Life ◽  
International Standards ◽  
Judicial Control ◽  
The Right

he article deals with legal regulation of the procedural status of an investigating judge. The author examines the standards that are formulated in the relevant international legal acts, in the practice of the ECHR, in the positions expressed by European experts, and relates to the activities of an investigating judge. They are classified into three groups: (a) Standards defining as a whole the requirements for the place and role of the court in the implementation of criminal justice, and therefore extend to all judicial functions, including judicial control function; b) standards defining the requirements for the organization and implementation of the judicial control function at the stage of pre-trial investigation; c) standards that determine the requirements for observance of human rights and freedoms, and thus serve as guiding points for subjects exercising judicial control powers. Standards defining in general the requirement for the place and role of the court in the implementation of criminal justice (such as the availability of justice, binding judgments, fair trial, due process hearing, equality before the law and the court, parties' competition, transparency of the judicial system etc.),as well as standards that define requirements for the observance of human rights and freedoms (such as the right to liberty and security of person, the right to respect for private life, the right to protection, etc.) have already been sufficiently studied at the level of special investigations. The subject of this study is international standards, which determine the requirements for the organization and implementation of judicial control at the stage of pre-trial investigation. The author examines the standards of protection of constitutional rights by the court, a standard for clearly demarcating the role of investigator, prosecutor and investigating judge in order to ensure real competition at the stage of pre-trial investigation; the standard of the materiality of the right of restriction; standard of urgency of judicial control; the standard of the prohibition of the participation of an investigating judge in the examination of the merits. Key words: standards of activity of an investigating judge, judicial control powers, judicial control, the investigating judge.

scholarly journals Strengthening the protection of the right to remain silent at the investigative stage: What role for the EU legislator?

2021 ◽  
pp. 203228442110283
Author(s):  
Anna Pivaty ◽  
Ashlee Beazley ◽  
Yvonne M Daly ◽  
Dorris de Vocht ◽  
Peggy ter Vrugt
Keyword(s):  
The European Union ◽  
Criminal Proceedings ◽  
Eu Member States ◽  
Existing Problems ◽  
Legal Provisions ◽  
Right To Silence ◽  
The Right ◽  
Procedural Rights ◽  
The Eu

This article reflects on the possible contribution of the European Union towards safeguarding the right to silence at the investigative stage of criminal proceedings in EU Member States. The analysis is not limited to the Directive 2016/343/EU and other procedural rights’ Directives. Rather, it focuses on the role of the EU as a legal and political player, pursuing the goal of enhanced protection of procedural rights in criminal proceedings. The article first examines compliance of the legal provisions of the four examined jurisdictions with the Directive. It then identifies the relevant areas, not addressed or insufficiently addressed in the existing EU instruments, which appear problematic as far as the effectuation of the right to silence is concerned. The article argues that a more detailed binding EU regulation is not an appropriate solution to address the existing problems. Instead, it suggests that the EU legislator should consider other, more indirect means of action.

Revisiting the Role of the EU Judiciary as the Stronghold for the Protection of Human Rights while Countering Terrorism

Global Jurist ◽  
2018 ◽  
Vol 18 (2) ◽  
Author(s):  
Alice Riccardi
Keyword(s):  
Due Process ◽  
Fair Trial ◽  
Fundamental Rights ◽  
The European Union ◽  
European Court ◽  
Protection Of Human Rights ◽  
The Right ◽  
Due Process Rights ◽  
The Eu

Abstract This article revisits the response of the European Union (EU) to the challenges posed by anti-terrorist smart sanctions regimes to fundamental rights, vis-à-vis recent legal developments. Following the Kadi saga, many authors defined the EU judicature as the bastion of the rule of law against executive powers. From the perspective of the Council of the EU, instead, Kadi caused a tremor. The EU courts did not only declare that anti-terrorist sanctions could be reviewed: they also affirmed that such review is in principle full, thus extended to all information substantiating sanctions, irrespective of whether covered by secrecy. In this respect, the European Court of Justice established that it is a task of the judiciary to accommodate security considerations militating against the disclosure of intelligence in court and the right to a fair trial. However, through legal instruments adopted in late 2016, the EU seems to be backing off from these settled principles. To test such assumption, the article proceeds in three steps. Firstly, it outlines the contours of the UN Security Council anti-terrorist sanctions regime, pinpointing the characteristics that make such regime problematic with respect to fair trial rights. Secondly, it surveys the development of EU courts’ case-law on secret evidence. Thirdly, it investigates whether the new legal instruments adopted by EU institutions adhere to the principles enshrined in said EU courts’ decisions, or rather represent a departure from consolidated due process rights.

Habeas Corpus: A Very Short Introduction

2021 ◽  
Author(s):  
Amanda L. Tyler
Keyword(s):  
World War Ii ◽  
Jury Trial ◽  
Habeas Corpus ◽  
Legal Tradition ◽  
Short Introduction ◽  
Continental Congress ◽  
Personal Liberty ◽  
Anglo American ◽  
The Right

For nearly eight hundred years, the writ of habeas corpus has limited the executive in the Anglo-American legal tradition from imprisoning persons with impunity. Writing in the eighteenth century, William Blackstone declared the writ a “bulwark” of personal liberty. Across the Atlantic, in the lead up to the American Revolution, the Continental Congress declared that the habeas privilege and the right to jury trial were among the most important rights in a free society. This Very Short Introduction chronicles the storied writ of habeas corpus and how it spread from England throughout the British Empire and beyond, witnessing its use today all around the world. Beginning with the English origins of the writ, the book traces its historical development as a part of the common law and as grounded in the English Habeas Corpus Act of 1679, a statute that dramatically limited the executive's power to detain and that Blackstone called no less than a “second Magna Carta.” The book then takes the story forward to explore how the writ has functioned in the centuries since, including its controversial suspension by President Abraham Lincoln during the Civil War. It also explores the role of habeas corpus during World War II and the War on Terror. The story told in these pages reveals the immense challenges that the habeas privilege faces today and suggests that in confronting them, we would do well to remember how the habeas privilege brought even the king of England to his knees before the law.

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