Australia: Reform of Criminal Trial Procedure — The Limits of the Right to Silence

2000 ◽  
Vol 8 (2) ◽  
pp. 156-161
Author(s):  
G.L. Davies
Keyword(s):  
Criminal Trial ◽  
Trial Procedure ◽  
Right To Silence ◽  
The Right

Scales of Justice: Defense Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries

1991 ◽  
Vol 9 (2) ◽  
pp. 221-267 ◽  
Author(s):  
J. M. Beattie
Keyword(s):  
Eighteenth Century ◽  
Professional Training ◽  
Common Law ◽  
Criminal Trial ◽  
Criminal Courts ◽  
Defense Counsel ◽  
Trial Procedure ◽  
Eighteenth And Nineteenth Centuries ◽  
The Right

My subject is the story of the entry of lawyers into the English criminal courts and their impact on trial procedure. Until the eighteenth century lawyers played little part in the trial of felonies in England—in the trial, that is, of those accused of the most serious offenses, including murder, rape, arson, robbery, and virtually all forms of theft. Indeed, the defendants in such cases were prohibited at common law from engaging lawyers to act for them in court. In the case of less-serious crimes—misdemeanors—defendants were allowed counsel; and those accused of high treason, the most serious offense of all, were granted the right to make their defense by counsel in 1696. But not in felony. Accused felons might seek a lawyer's advice on points of law, but if they wanted to question the prosecution evidence or to put forward a defense, they had to do that on their own behalf. The victim of a felony (who most often acted as the prosecutor in a system that depended fundamentally on private prosecution) was free to hire a lawyer to manage the presentation of his or her case. But in fact few did so. The judges were generally the only participants in felony trials with professional training. They dominated the courtroom and orchestrated the brief confrontation between the victim and the accused that was at the heart of the trial.

Investigating judge as a new figure in the Kyrgyz Republic criminal procedure

2020 ◽  
Vol 2020 (3) ◽  
pp. 140-147
Author(s):  
Sof'ya Shestakova ◽  
Uulzhan Imanalieva
Keyword(s):  
Criminal Procedure ◽  
Comparative Perspective ◽  
Kyrgyz Republic ◽  
Trial Procedure ◽  
Judicial Control ◽  
Legal Model ◽  
Integral Element ◽  
The Right ◽  
Conceptual Foundations ◽  
Former Soviet Republics

The article iis devoted to the research of the institution of investigative judge introduced into the criminal procedure of the Kyrgyz Republic in 2019. The authors analyze the conceptual foundations of this institution, its procedural significance, as well as the legal model under Kyrgyz legislation in its comparative perspective with the legislation of Germany and some former Soviet republics. Two main achievements: the organizational and functional isolation of an investigating judge during the criminal procedure and granting them the power of deposition are seen by the authors as advantages of the Kyrgyz model of the institution of an investigative judge. The former is aimed at guaranteeing the objectivity, impartiality and neutrality of the judge considering the case on the merits, who is discharged judicial control in pre-trial procedure nowadays. The latter is aimed at implementing for the prosecution and defense the right to be equal parties of procedural opportunities to participate in evidence as an integral element of the adversarial principle.

scholarly journals Reciprocal Disclosure in Criminal Trials: Stacking the Deck against the Accused, or Calling Defence Counsel's Bluff

1969 ◽  
pp. 715
Author(s):  
Brian Edward Maude
Keyword(s):  
Criminal Trial ◽  
Judicial System ◽  
Criminal Trials ◽  
Defence Counsel ◽  
The Right

The author discusses the effect reciprocal disclosure would have on the accused's right to remain silent and the right not to incriminate oneself. As these rights are strongly entrenched in Canada's judicial system, the author examines if there is room to incorporate defence disclosure into Canada's criminal trial proceedings. A review is made of other jurisdictions where some degree of reciprocal disclosure is in place, and the limitations of introducing similar procedures into the Canadian system are discussed. The author concludes that the introduction of reciprocal disclosure would be a moderate expansion of already existing notice requirements, and defence counsel should start to introduce their own guidelines with respect to defence disclosure.

scholarly journals THE RIGHT TO A FAIR TRIAL: THE ROLE OF THE TRANSLATORINTERPRETER IN THE CRIMINAL TRIAL

2013 ◽  
Vol 7 (4) ◽  
Author(s):  
Diana-Domnica Dănişor
Keyword(s):  
Fair Trial ◽  
Criminal Trial ◽  
The Right

The judicial dialogue, as an expression of judicial controversy, is organized in thenational language. In order to observe the principle of audi alteram partem, when a litigantspeaking another language is present, it is required that the dialogue should be reconstitutedwith the assistance of a translator-interpreter. The latter informs the litigant who speaksanother language of “all acts that may affect him to a certain extent”, in order to make thecounsel understand the proceedings and to protect the rights of the person he defends. Thetranslator-interpreter is thus the protector of the rights of the person for whom he translates,allowing the accused to participate in the debate. The presence of this occasionalcollaborator is a guarantee of good justice. Standing among the actors of a trial, theinterpreter is the faithful transmitter of each person’s words by the search of equivalencesbetween two utterances. The translation must render as accurately as possible the intentionsof the author of the translated utterance, thus becoming an “accurate re-creation”, a“creation of meaning”. Frequently based on “syntactical archaisms” and “stereotypedformulas”, these turns do not have an equivalent in other languages.

scholarly journals GUARANTEE OF THE RIGHT TO SILENCE AND OF THE RIGHT NOT TO CONTRIBUTE TO ONE’S OWN INCRIMINATION IN ROMANIAN CRIMINAL PROCEDURE LAW

2018 ◽  
Vol 2 (83) ◽  
pp. 25
Author(s):  
Carmen Adriana Domocos
Keyword(s):  
Freedom Of Expression ◽  
Case Law ◽  
Fair Trial ◽  
European Court Of Justice ◽  
European Convention ◽  
Criminal Offence ◽  
Court Of Justice ◽  
European Court ◽  
Right To Silence ◽  
The Right

The Romanian legislation establishes in the new penal procedure law the right to silence and the right of non-incrimination of the defendant in the criminal trial.The right to silence (to remain silent) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention on Human Rights, according to which judicial authorities cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect or a defendant to make statements, while having, however, a limited power to draw conclusions against them, from their refusal to make statements.Therefore, the right to silence involves not only the right not to testify against oneself, but also the right of the suspect or defendant not to incriminate oneself. The suspect or defendant cannot be compelled to assist in the production of evidence and cannot be sanctioned for failing to provide certain documents or other evidence. Obligation to testify against personal will, under the constraint of a fine or any other form of coercion constitutes an interference with the negative aspect of the right to freedom of expression which must be necessary in a democratic Romanian society.The right not to contribute to one’s own incrimination (the privilege against self-incrimination) is the implicit procedural guarantee of the right to a fair trial, which results from the case law of the European Court of Justice within the meaning of Article 6 paragraph 1 of the European Convention, according to which judicial bodies or any other state authority cannot oblige a perpetrator (suspected of having committed a criminal offence), a suspect, a defendant or a witness to cooperate by providing evidence which might incriminate him or which could constitute the basis for a new criminal charge. It is essential to clarify certain issues as far as this right is concerned.

Law, Presence to Absence

2021 ◽  
pp. 72-88
Author(s):  
Kate Leader
Keyword(s):  
Fair Trial ◽  
Criminal Trial ◽  
Performance Theory ◽  
Criminal Trials ◽  
England And Wales ◽  
Technological Advances ◽  
New Challenges ◽  
Being There ◽  
And Performance ◽  
The Right

The live presence of a defendant at trial is a long-standing feature of adversarial criminal trial. So much of what constitutes the adversarial method of adjudication is dependent on qualities that arise from this presence: confrontation and demeanor assessment, among other factors, play important roles in how truth is constructed. As such, performative matters—how a defendant enacts and inhabits her role, how she is positioned or silenced-- have long been of concern to legal scholars. These performative concerns are also centrally implicated in defendant rights, such as the right to a fair trial. But today we face new challenges that call into question fundamental beliefs around trials, defendant presence, and fairness. First, technological advances have led to defendants appearing remotely in hearings from the prison in which they are held. Second, the trial itself is arguably vanishing in most adversarial jurisdictions. Third, the use of trials in absentia means that criminal trials may take place in a defendant’s absence; in England and Wales for less serious offenses this can be done without inquiring why a defendant isn’t there. This chapter therefore seeks to understand the performative implications of these challenges by shifting the conversation from presence to absence. What difference does it make if a defendant is no longer there? Does being there facilitate greater fairness, despite the obvious issues of constraint and silencing? Drawing on sociolegal, political, and performance theory the chapter considers the implications of absence in the criminal trial, asking what happens when the defendant disappears.

Silence with caution: The right to silence in police investigations in Belgium

2021 ◽  
pp. 203228442110283
Author(s):  
Ashlee Beazley ◽  
Fien Gilleir ◽  
Michele Panzavolta ◽  
Joëlle Rozie ◽  
Miet Vanderhallen
Keyword(s):  
Case Law ◽  
Public Prosecutor ◽  
Criminal Proceedings ◽  
The Public ◽  
Digital Devices ◽  
Police Investigations ◽  
Right To Silence ◽  
Right To Information ◽  
Definition Of ◽  
The Right

This article is about the right to remain silent within Belgium. Although the right has always been considered applicable, both the courts and parliament have historically demonstrated a disinclination to define or engage with this. The right to silence is now formally recognised in the Belgian Code of Criminal Procedure, albeit with the classic distinction between those who are not (yet) accused of a crime and those who are formal suspects: while all enjoy the right not to incriminate themselves, only formal suspects in Belgium enjoy the explicit right to remain silent. Accordingly, whilst no one may be obliged to assist with their own conviction or be forced to co-operate with the authorities, it remains unclear how far the right not to cooperate effectively stretches. The case law seems to be moving, albeit slowly, in the direction of confining this right within narrower borders, particularly by excluding its applicability with regard to the unlocking and decryption of digital devices. This is not, however, the only idiosyncrasy concerning the right to silence in Belgium. Among those also addressed in this article are: the lack of caution on the right to remain silent given to arrested persons immediately following their deprivation of liberty (an absence striking for its apparent breach of Directive 2012/13/EU on the right to information in criminal proceedings); the possible inducement to breach the right to silence via the discretionary powers of the public prosecutor to offer a reduction or mitigation in sentence; the obscurity surrounding the definition of ‘interrogation’ and the consequences of this on both the caution and the obtaining of statements; and the extent to which judges can draw adverse inferences from the right to silence. The question remains: is the right to silence currently protected enough?

Sign in / Sign up

Export Citation Format

Share Document