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.

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.

scholarly journals Protections for vulnerable accused in Malaysian criminal trials: Are they sufficient? Proposal for reform

2021 ◽  
Author(s):  
◽  
Naziah Mohd Alias
Keyword(s):  
Criminal Procedure ◽  
Fair Trial ◽  
Criminal Trial ◽  
Proper Treatment ◽  
Criminal Trials ◽  
Support Person ◽  
Procedure Code ◽  
The Law ◽  
The Right

<p>This dissertation argues that the protections for vulnerable accused in Malaysian criminal trials are not sufficient. It is crucial to ensure that vulnerable accused receive proper treatment when dealing with the court. After thoroughly scrutinising the law and practice in several other jurisdictions, this dissertation proposes several amendments to the Criminal Procedure Code and the Evidence Act 1950 to provide clear guidelines as to how to deal with vulnerable accused in a criminal trial. It is ultimately recommended that the right to give an unsworn statement be modified so that it is more effective and fair in its operation. This dissertation further recommends the introduction of an adverse inference clause for the right to remain silent at trial so accused person can better understand the effect of their choice. Recommendations are also made to introduce an intermediary service for those vulnerable accused who choose to give sworn evidence in court, and to allow a support person to accompany a vulnerable accused during trial. These amendments aim to assist vulnerable accused persons physically and emotionally, and to protect their fair trial rights.</p>

scholarly journals Protections for vulnerable accused in Malaysian criminal trials: Are they sufficient? Proposal for reform

2021 ◽  
Author(s):  
◽  
Naziah Mohd Alias
Keyword(s):  
Criminal Procedure ◽  
Fair Trial ◽  
Criminal Trial ◽  
Proper Treatment ◽  
Criminal Trials ◽  
Support Person ◽  
Procedure Code ◽  
The Law ◽  
The Right

<p>This dissertation argues that the protections for vulnerable accused in Malaysian criminal trials are not sufficient. It is crucial to ensure that vulnerable accused receive proper treatment when dealing with the court. After thoroughly scrutinising the law and practice in several other jurisdictions, this dissertation proposes several amendments to the Criminal Procedure Code and the Evidence Act 1950 to provide clear guidelines as to how to deal with vulnerable accused in a criminal trial. It is ultimately recommended that the right to give an unsworn statement be modified so that it is more effective and fair in its operation. This dissertation further recommends the introduction of an adverse inference clause for the right to remain silent at trial so accused person can better understand the effect of their choice. Recommendations are also made to introduce an intermediary service for those vulnerable accused who choose to give sworn evidence in court, and to allow a support person to accompany a vulnerable accused during trial. These amendments aim to assist vulnerable accused persons physically and emotionally, and to protect their fair trial rights.</p>

CIVIL AND LEGAL LIABILITY OF JUDGES

2017 ◽  
Author(s):  
Yaroslav Skoromnyy ◽  
Keyword(s):  
Human Rights ◽  
Pension System ◽  
Legal Liability ◽  
Judicial System ◽  
Constitutional Court ◽  
Model Code ◽  
European Court ◽  
The Status ◽  
The Law ◽  
The Right

The article presents the conceptual foundations of bringing judges to civil and legal liability. It was found that the civil and legal liability of judges is one of the types of legal liability of judges. It is determined that the legislation of Ukraine provides for a clearly delineated list of the main cases (grounds) for which the state is liable for damages for damage caused to a legal entity and an individual by illegal actions of a judge as a result of the administration of justice. It has been proved that bringing judges to civil and legal liability, in particular on the basis of the right of recourse, provides for the payment of just compensation in accordance with the decision of the European Court of Human Rights. It was established that the bringing of judges to civil and legal liability in Ukraine is regulated by such legislative documents as the Constitution of Ukraine, the Civil Code of Ukraine, the Explanatory Note to the European Charter on the Status of Judges (Model Code), the Law of Ukraine «On the Judicial System and the Status of Judges», the Law of Ukraine «On the procedure for compensation for harm caused to a citizen by illegal actions of bodies carrying out operational-search activities, pre-trial investigation bodies, prosecutors and courts», Decision of the Constitutional Court of Ukraine in the case on the constitutional submission of the Supreme Court of Ukraine regarding the compliance of the Constitution of Ukraine (constitutionality) of certain provisions of Article 2, paragraph two of clause II «Final and transitional provisions» of the Law of Ukraine «On measures to legislatively ensure the reform of the pension system», Article 138 of the Law of Ukraine «On the judicial system and the status of judges» (the case on changes in the conditions for the payment of pensions and monthly living known salaries of judges lagging behind in these), the Law of Ukraine «On the implementation of decisions and the application of the practice of the European Court of Human Rights».

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.

Demeanour, credibility and remorse in the criminal trial

2021 ◽  
Vol 34 (1) ◽  
pp. 55-75
Author(s):  
Adebola Olaborede ◽  
Lirieka Meintjes-van der Walt
Keyword(s):  
Social Psychology ◽  
Facial Expressions ◽  
Common Law ◽  
Criminal Trial ◽  
Great Care ◽  
Validity And Reliability ◽  
Criminal Trials ◽  
Verbal Cues ◽  
Accepted Practice ◽  
Mandatory Use

This article, referring to South Africa as well as to selected other common law jurisdictions, proceeds from the premise that it is a well-accepted practice for judges to consider demeanour in assessing the credibility of a witness and in assessing whether the accused shows remorse when decisions regarding sentences are taken. However, the article also takes cognisance of the fact that there is a lack of generally agreed-upon objective methods for the identification of remorse. The article was prompted by recent health precautions regarding the mandatory use of face masks, in order to protect people and to contain the spread of the coronavirus, which provides an opportunity to review demeanour in general and perceptions concerning facial demeanour or facial expressions in the courtroom, in particular. The article explores the validity and reliability of findings on remorse and of making credibility assessments based on demeanour evidence. Part 1 of the article is an introduction. Part 2 of the article provides a brief overview of credibility and demeanour evidence in the courtroom. Part 3 of the article examines remorse and demeanour evidence in criminal trials. Part 4 of the article considers demeanour evidence as a ‘tricky horse to ride’. Part 5 of the article provides a discussion of empirical research studies in the field of social psychology relevant to the reliability of finding credibility and remorse on the basis of demeanour evidence. Part 6 briefly discusses COVID-19 face-covering regulations and demeanour evidence in the criminal trial. The article emphasises that although non-verbal cues could be valuable to judges, such evidence may be unreliable and that courts have cautioned against demeanour evidence being afforded undue importance. The article concludes that even when facial expressions are available to the court, it would be in the interests of justice to exercise great care concerning demeanour in general and facial expressions in particular as a guide to assessing credibility and the existence of remorse.

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 ACTUAL QUESTIONS ABOUT INVESTIGATOR'S WORK IN LATVIAN CRIMINAL PROCEDURE

2017 ◽  
Vol 3 (80) ◽  
pp. 39
Author(s):  
Marina Sumbarova
Keyword(s):  
Legal Status ◽  
Criminal Procedure ◽  
Educational Process ◽  
Criminal Trial ◽  
Criminal Trials ◽  
Criminal Procedure Law

In this article author considers the questions connected with activity of the investigator at investigation of crimes, gives the characteristic of his procedural activity, defines his legal status in Latvian criminal procedure, characterizes important functions that this participant of criminal trial has. Along with consideration of a legal status of the investigator in criminal trial of Latvia, the analysis of the relevant procedural characteristics connected with investigation of criminal trials has determined the scientifically based directions in modern educational process of Latvia by training of specialists lawyers and, in particular, investigators. As a results of a research are given offers to change separate standards of the Criminal procedure law.

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