https://defensewiki.ibj.org/api.php?action=feedcontributions&user=Durankar&feedformat=atomCriminal Defense Wiki - User contributions [en]2024-03-29T10:25:44ZUser contributionsMediaWiki 1.34.1https://defensewiki.ibj.org/index.php?title=United_States&diff=10820United States2011-06-21T23:19:51Z<p>Durankar: /* Trial */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, the Revolutionary War began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
The primary source of defendants' rights in the federal court system is the Constitution, particularly the Bill of Rights. The Bill of Rights is the first ten amendments to the Constitution. The Fourth, Fifth, Sixth, and Eighth Amendments establish certain rights for defendants in federal court. The Fourteenth Amendment's due process clause incorporates all of the rights provided in those amendments (expect for the fifth amendment's right to a grand jury) and applies the amendments to state and local governments.<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
A defendant is entitled to a large number of pre-trial rights. The fundamental rights that all defendants in the United States are afforded are found in the Fourth Amendment, the Fifth Amendment, and the Eight Amendment's ban on excessive bail. The Fourth Amendment reads:<br />
<blockquote> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</blockquote><br />
<br />
The prohibition against [[Search and Seizure|unreasonable searches and seizures]] serves as the basis for suspect's protections from the police, including [[Identity Checks|identity checks]], [[Stops and Frisks|stops and frisks]], and [[Arrest|arrests]].<br />
<br />
<br />
Defendants also have pre-trial rights that are rooted in protections granted in the Fifth Amendment. The Fifth Amendment reads:<br />
<blockquote> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.</blockquote><br />
<br />
The most famous pre-trial protections derived from the Fifth Amendment are the [[Miranda v. Arizona, 384 U.S. 436 (1966)|Miranda Warnings]], which require the police to inform a suspect that the suspect has the right to remain silent. That anything the suspect says or does can and will be held against the suspect in the court of law. That the suspect as the right to an attorney and that if the suspect cannot afford an attorney one will be appointed.<br />
<br />
<br />
<br />
===Trial===<br />
<br />
The Sixth Amendment<ref>U.S. Const. amend. VI.</ref>:<br />
<blockquote>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.</blockquote><br />
<br />
The 6th Amendment creates the right to trial by jury. Any defendant facing charges that could result in imprisonment exceeding 6 months is entitled to a trial by jury. <br />
<br />
The Eighth Amendment<ref>U.S. Const. amend. VIII.</ref>: <br />
<blockquote>Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.</blockquote><br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">REFERENCES</h2><br />
<references/><br />
<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10208United States2011-04-19T14:44:13Z<p>Durankar: /* Defendants' Rights */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, the Revolutionary War began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
The primary source of defendants' rights in the federal court system is the Constitution, particularly the Bill of Rights. The Bill of Rights is the first ten amendments to the Constitution. The Fourth, Fifth, Sixth, and Eighth Amendments establish certain rights for defendants in federal court. The Fourteenth Amendment's due process clause incorporates all of the rights provided in those amendments (expect for the fifth amendment's right to a grand jury) and applies the amendments to state and local governments.<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
A defendant is entitled to a large number of pre-trial rights. The fundamental rights that all defendants in the United States are afforded are found in the Fourth Amendment, the Fifth Amendment, and the Eight Amendment's ban on excessive bail. The Fourth Amendment reads:<br />
<blockquote> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</blockquote><br />
<br />
The prohibition against [[Search and Seizure|unreasonable searches and seizures]] serves as the basis for suspect's protections from the police, including [[Identity Checks|identity checks]], [[Stops and Frisks|stops and frisks]], and [[Arrest|arrests]].<br />
<br />
<br />
Defendants also have pre-trial rights that are rooted in protections granted in the Fifth Amendment. The Fifth Amendment reads:<br />
<blockquote> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.</blockquote><br />
<br />
The most famous pre-trial protections derived from the Fifth Amendment are the [[Miranda v. Arizona, 384 U.S. 436 (1966)|Miranda Warnings]], which require the police to inform a suspect that the suspect has the right to remain silent. That anything the suspect says or does can and will be held against the suspect in the court of law. That the suspect as the right to an attorney and that if the suspect cannot afford an attorney one will be appointed.<br />
<br />
<br />
<br />
===Trial===<br />
<br />
The Sixth Amendment:<br />
<blockquote>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.</blockquote><br />
<br />
The Eighth Amendment also protects against cruel and unusual punishment. <br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10207United States2011-04-19T14:29:17Z<p>Durankar: /* Pre-trial */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, the Revolutionary War began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
The primary source of defendants' rights in the federal court system is the Constitution, particularly the Bill of Rights. The Bill of Rights is the first ten amendments to the Constitution. The Fourth, Fifth, Sixth, and Eighth Amendments establish certain rights for defendants in federal court. The Fourteenth Amendment's due process clause incorporates all of the rights provided in those amendments (expect for the fifth amendment's right to a grand jury) and applies the amendments to state and local governments.<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
A defendant is entitled to a large number of pre-trial rights. The fundamental rights that all defendants in the United States are afforded are found in the Fourth Amendment, the Fifth Amendment, and the Eight Amendment's ban on excessive bail. The Fourth Amendment reads:<br />
<blockquote> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</blockquote><br />
<br />
The prohibition against [[Search and Seizure|unreasonable searches and seizures]] serves as the basis for suspect's protections from the police, including [[Identity Checks|identity checks]], [[Stops and Frisks|stops and frisks]], and [[Arrest|arrests]].<br />
<br />
===Trial===<br />
<br />
The Fifth Amendment:<br />
<blockquote> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.</blockquote><br />
<br />
The Sixth Amendment:<br />
<blockquote>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.</blockquote><br />
<br />
The Eighth Amendment also protects against cruel and unusual punishment. <br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10206United States2011-04-19T14:27:12Z<p>Durankar: /* Pre-trial */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, the Revolutionary War began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
The primary source of defendants' rights in the federal court system is the Constitution, particularly the Bill of Rights. The Bill of Rights is the first ten amendments to the Constitution. The Fourth, Fifth, Sixth, and Eighth Amendments establish certain rights for defendants in federal court. The Fourteenth Amendment's due process clause incorporates all of the rights provided in those amendments (expect for the fifth amendment's right to a grand jury) and applies the amendments to state and local governments.<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
A defendant is entitled to a large number of pre-trial rights. The fundamental rights that all defendants in the United States are afforded are found in the Fourth Amendment, the Fifth Amendment, and the Eight Amendment's ban on excessive bail. The Fourth Amendment reads:<br />
<blockquote> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</blockquote><br />
<br />
The prohibition against [[Search and Seizure|unreasonable searches and seizures]] serves as the basis for suspect's protections from the police, including [[Identity Checks|identity checks]], [[Stops and Frisks|stops and frisks]], [[Arrest|arrests]], and [[Pretrial Identification|pretrial identifications]].<br />
<br />
===Trial===<br />
<br />
The Fifth Amendment:<br />
<blockquote> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.</blockquote><br />
<br />
The Sixth Amendment:<br />
<blockquote>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.</blockquote><br />
<br />
The Eighth Amendment also protects against cruel and unusual punishment. <br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10200United States2011-04-19T12:45:55Z<p>Durankar: /* Pre-trial */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, the Revolutionary War began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
The primary source of defendants' rights in the federal court system is the Constitution, particularly the Bill of Rights. The Bill of Rights is the first ten amendments to the Constitution. The Fourth, Fifth, Sixth, and Eighth Amendments establish certain rights for defendants in federal court. The Fourteenth Amendment's due process clause incorporates all of the rights provided in those amendments (expect for the fifth amendment's right to a grand jury) and applies the amendments to state and local governments.<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
A defendant is entitled to a large number of pre-trial rights. The fundamental rights that all defendants in the United States are afforded are found in the Fourth Amendment, the Fifth Amendment, and the Eight Amendment's ban on excessive bail. The Fourth Amendment reads:<br />
<blockquote> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</blockquote><br />
<br />
===Trial===<br />
<br />
The Fifth Amendment:<br />
<blockquote> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.</blockquote><br />
<br />
The Sixth Amendment:<br />
<blockquote>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.</blockquote><br />
<br />
The Eighth Amendment also protects against cruel and unusual punishment. <br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10198United States2011-04-19T12:28:45Z<p>Durankar: /* Background */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, the Revolutionary War began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
The primary source of defendants' rights in the federal court system is the Constitution, particularly the Bill of Rights. The Bill of Rights is the first ten amendments to the Constitution. The Fourth, Fifth, Sixth, and Eighth Amendments establish certain rights for defendants in federal court. The Fourteenth Amendment's due process clause incorporates all of the rights provided in those amendments (expect for the fifth amendment's right to a grand jury) and applies the amendments to state and local governments.<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
The Fourth Amendment reads:<br />
<blockquote> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</blockquote><br />
<br />
The Eighth Amendment protects against excessive bail.<br />
<br />
===Trial===<br />
<br />
The Fifth Amendment:<br />
<blockquote> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.</blockquote><br />
<br />
The Sixth Amendment:<br />
<blockquote>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.</blockquote><br />
<br />
The Eighth Amendment also protects against cruel and unusual punishment. <br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10115United States2011-04-11T01:57:55Z<p>Durankar: /* Source of Defendants' Rights */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
The primary source of defendants' rights in the federal court system is the Constitution, particularly the Bill of Rights. The Bill of Rights is the first ten amendments to the Constitution. The Fourth, Fifth, Sixth, and Eighth Amendments establish certain rights for defendants in federal court. The Fourteenth Amendment's due process clause incorporates all of the rights provided in those amendments (expect for the fifth amendment's right to a grand jury) and applies the amendments to state and local governments.<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
The Fourth Amendment reads:<br />
<blockquote> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</blockquote><br />
<br />
The Eighth Amendment protects against excessive bail.<br />
<br />
===Trial===<br />
<br />
The Fifth Amendment:<br />
<blockquote> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.</blockquote><br />
<br />
The Sixth Amendment:<br />
<blockquote>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.</blockquote><br />
<br />
The Eighth Amendment also protects against cruel and unusual punishment. <br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10114United States2011-04-11T00:27:07Z<p>Durankar: /* Trial */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
The primary source of defendants' rights in the federal court system is the Constitution, particularly the Bill of Rights. The Bill of Rights is the first ten amendments to the Constitution. The fourth, fifth, sixth, and eighth amendments establish certain rights for defendants in federal court. The fourteenth amendment's due process clause incorporates all of the rights provided in those amendments (expect for the fifth amendment's right to a grand jury) and applies the amendments to state and local governments.<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
The Fourth Amendment reads:<br />
<blockquote> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</blockquote><br />
<br />
The Eighth Amendment protects against excessive bail.<br />
<br />
===Trial===<br />
<br />
The Fifth Amendment:<br />
<blockquote> No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.</blockquote><br />
<br />
The Sixth Amendment:<br />
<blockquote>In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.</blockquote><br />
<br />
The Eighth Amendment also protects against cruel and unusual punishment. <br />
<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10113United States2011-04-11T00:24:57Z<p>Durankar: /* Pre-trial */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
The primary source of defendants' rights in the federal court system is the Constitution, particularly the Bill of Rights. The Bill of Rights is the first ten amendments to the Constitution. The fourth, fifth, sixth, and eighth amendments establish certain rights for defendants in federal court. The fourteenth amendment's due process clause incorporates all of the rights provided in those amendments (expect for the fifth amendment's right to a grand jury) and applies the amendments to state and local governments.<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
The Fourth Amendment reads:<br />
<blockquote> The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.</blockquote><br />
<br />
The Eighth Amendment protects against excessive bail.<br />
<br />
===Trial===<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10112United States2011-04-11T00:20:31Z<p>Durankar: /* Source of Defendants' Rights */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
The primary source of defendants' rights in the federal court system is the Constitution, particularly the Bill of Rights. The Bill of Rights is the first ten amendments to the Constitution. The fourth, fifth, sixth, and eighth amendments establish certain rights for defendants in federal court. The fourteenth amendment's due process clause incorporates all of the rights provided in those amendments (expect for the fifth amendment's right to a grand jury) and applies the amendments to state and local governments.<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
===Trial===<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10111United States2011-04-11T00:06:52Z<p>Durankar: /* Type of System */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
The legal system comes from the British common law system that was used during the Revolutionary War. Since declaring independence from the British, the United States' legal system has adopted some civil law characteristics. Today, there are four sources of law: the Constitution, statutes, administrative regulations, and common law.<br />
<br />
==Source of Defendants' Rights==<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
===Trial===<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10088United States2011-04-07T13:52:18Z<p>Durankar: /* Background */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
The executive branch oversees the administration of the state bureaucracy. Article II Section 1 of the Constitution grants the executive power in the President and creates the office Vice President. The President serves as the head of state, commander-in-chief, and chief executive of the federal government. As commander-in-chief, the President is the supreme commander of the armed forces. In his role as chief executive, the President oversees the administration of the executive agencies. The executive branch makes up roughly 1.844 million of the nearly 2 million federal workers. <br />
<br />
The judicial branch is comprised of the federal courts: the Supreme Court, the United Court of Appeals, the United States District Courts, the United States Bankruptcy Courts, and the United States Courts of Special Jurisdiction. The Supreme Court, the highest court, currently consists of nine Justices. The Supreme Court is the ultimate interpreter of the Constitution. Below the Supreme Court is the appeals court. The court of appeals is organized by circuits, of which there are 12. Underneath the court of appeals are the district courts. The district courts are the federal trial courts. The district courts are divided by judicial district, with at least one district in each state. There are 94 federal districts. <br />
<br />
In addition to the federal government, each state has its own government and constitution. While given a certain level of independence from the federal government, the states, and the states' constitutions, are required to act within the bounds of the United States Constitution.<br />
<br />
==Type of System==<br />
<br />
==Source of Defendants' Rights==<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
===Trial===<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10072United States2011-04-07T02:26:40Z<p>Durankar: /* Background */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states and one federal district. The United State's capital is Washington D.C. On April 19, 1775, began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states. The Articles of Confederation remained in effect through the end of the Revolutionary War, September 3, 1783, up until it was superseded by the Constitution on September 17, 1787. <br />
<br />
The Constitution is the supreme law of the Untied States. It creates the three branches of the federal government: the legislature, the executive branch, and the judicial branch. <br />
<br />
The legislature is comprised of two branches, the Senate and the House of Representatives. The Senate is made up of 100 senators, two per state, who are elected for a term of six years. The Vice President of the United States also serves as the president of the Senate. In the even of a tie vote, the Vice President will cast the tie breaking vote. The House of Representatives is made up of 435 representatives, apportioned among the states based on population. Each representative is elected to a two-year term. The majority party, either the Democrats or Republicans, elects from among its members the Speaker of the House. The Speaker of the House is the leader of the House of Representatives and is second in the line of succession for the presidency, behind the Vice President. The drafters of the Constitution intended for the legislature to be the most powerful branch of government. The 20th century, however, saw a dramatic expansion in the power of the executive branch, and as a result, some commentators argue that the legislature is no longer the most important branch. Regardless of whether is this true, the legislature still retains the ultimate power within the federal government. The power to tax and spend.<br />
<br />
==Type of System==<br />
<br />
==Source of Defendants' Rights==<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
===Trial===<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10071United States2011-04-06T21:57:32Z<p>Durankar: /* Background */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
The United States of America is a federal constitutional republic made up of fifty states. The United State's capital is Washington D.C. On April 19, 1775, began with the Battles of Lexington and Concord. The following year, on July 4, 1776, the Continental Congress adopted the Declaration of Independence. The 4th of July is now recognized in the United States as Independence Day. On November 15, 1777, the Second Continental Congress submitted the Articles of Confederation for ratification by the states.<br />
<br />
==Type of System==<br />
<br />
==Source of Defendants' Rights==<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
===Trial===<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=United_States&diff=10010United States2011-04-04T00:55:56Z<p>Durankar: </p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">UNITED STATES CRIMINAL DEFENSE MANUAL</h2><br />
* [[Stages in a Criminal Trial - US]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[United States Constitution]]<br />
* [[United States Bill of Rights]]<br />
* [[Federal Rules of Criminal Procedure]]<br />
* [[Federal Rules of Evidence]]<br />
* [[Prison Litigation Reform Act (PLRA)]], [[42 U.S.C. § 1997e]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Strategies for Defending a Drug Case in the United States]]<br />
* [[Important U.S. Cases]]<br />
* [[American Bar Association Model Rules of Professional Conduct]]<br />
* [[United States Public Defender Directory]]<br />
*[http://http://www.supremecourt.gov U.S. Supreme Court Web Site]<br />
* [[United States Supreme Court Justices]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
<br />
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]<br />
|}<br />
<br />
==Background==<br />
<br />
==Type of System==<br />
<br />
==Source of Defendants' Rights==<br />
<br />
==Defendants' Rights==<br />
<br />
===Pre-trial===<br />
<br />
===Trial===<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
*2009 Prison Population: 2,297,400 / 748 people per 100,000, the highest in the world on a per capita basis<br />
*200,000 of these prisoners are over 50 years of age<br />
*110.1% prison occupancy level (based on official capacity)<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=Electronic_Surveillance&diff=9927Electronic Surveillance2011-03-28T01:28:49Z<p>Durankar: /* International Law */</p>
<hr />
<div>==Background==<br />
Electronic surveillance is increasingly fertile area of litigation as modern technology poses new problems and offers fresh investigatory tools for police and security forces around the globe. The most common method of electronic surveillance is wiretapping in which police or other state agents record telephone conversations of third parties. <br />
<br />
==International Law==<br />
<br />
On 1 July 2004, the first international treaty to address cyber crimes went into effect. The Council of Europe's Convention on Cybercrime is designed to foster communication between nations and to help develop new techniques for combating the cybercrime.<ref> Convention on Cybercrim, Budapest, 23.XI.2001, preamble.</ref> To date, 46 countries have signed or ratified the convention including the United States. <ref>Masters, Greg; Global cybercrime treaty rejected by U.N., SC Magazine, available at http://www.scmagazineus.com/global-cybercrime-treaty-rejected-at-un/article/168630/</ref><br />
<br />
In April 2010, the United Nations rejected a proposal for a cybercrime treaty, primarily due to concerns on the part of Russia and China that the new treaty would allow authorities to access servers stored within their boarders without permission.<ref>Masters, Greg; Global cybercrime treaty rejected by U.N., SC Magazine, available at http://www.scmagazineus.com/global-cybercrime-treaty-rejected-at-un/article/168630/</ref><br />
<br />
==Specific Country Examples==<br />
<br />
===India===<br />
<br />
The authorities can receive permission to conduct a wiretap under the Indian Telegraph Act of 1885 Part 2 Section 5(2):<br />
<br />
<blockquote>On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: <br />
<br />
Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.</blockquote><br />
<br />
Evidence obtained through a wiretap cannot be presented as primary evidence at trial.<ref><br />
https://www.privacyinternational.org/survey/phr2003/countries/india.htm</ref><br />
<br />
===United States===<br />
Despite the Constitutional issues surrounding wiretapping, much of wiretapping law is regulated by the Federal Government under Title III of the Omnibus Crime Control Act and Safe Streets Act of 1968.<br />
<br />
The [[United State Supreme Court]] in Katz v. United concluded that the Fourth Amendment of the [[United States Constitution]] proteted telephone calls made within phone booths.<ref>Katz v. United States, 389 U.S. 347 (1967)</ref> The decision rested on two principles:<br />
<br />
First, the Court concluded that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which [the defendant] justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." <br />
<br />
The Court introduced a new model for determining whether a right to privacy existed. In prior cases, the Fourth Amendment was thought to protect activities that occurred only in certain locations, such as private homes or automobiles. The Court determined that this location-based scheme was not always justified, concluding that the appropriate test was not the location. but whether the conversation was made with a "reasonable expectation of privacy." This expectation has two components. Under the subjective component the defendant must wish to make their conversation private. This desire for privacy must also be a reasonable one that society is willing to support. Under this new holding the Fourth Amendment was said to protect people, not places.<br />
<br />
The Court further restricted the use of electronic surveillance in U.S. v. Karo, 468 U.S. 705 (1984). In Karo, the Court addressed whether an electronic beeper, installed in a container of chemicals with the consent of the owner, violated the defendant’s 4th amendment rights and whether the information provided by the beeper falls under the protection of the 4th amendment when it provides information that could not have been gathered through visual surveillance. The Court concluded that the installation alone did not violate the defendant’s 4th amendment rights, stating:<br />
<blockquote>The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. A holding to that effect would mean that a policeman walking down the street carrying a parabolic microphone capable of picking up conversations in nearby homes would be engaging in a search even if the microphone were not turned on. It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence. <ref>U.S. v. Karo, 468 U.S. 705, 712 (1984)</ref></blockquote><br />
The information provided by the beeper, however, was protected by the 4th amendment. <br />
<blockquote> In this case, had a DEA agent thought it useful to enter the Taos residence to verify that the ether was actually in the house and had he done so surreptitiously and without a warrant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose residence is being watched. Even if visual surveillance has revealed that the article to which the beeper is attached has entered the house, the later monitoring not only verifies the officers' observations but also establishes that the article remains on the premises. Here, for example, the beeper was monitored for a significant period after the arrival of the ether in Taos and before the application for a warrant to search. <ref>U.S. v. Karo, 468 U.S. 705, 715 (1984)</ref></blockquote><br />
More recently, in Kyllo v. U.S. 533 U.S. 27 (2001), the Court again addressed electronic surveillance. The question presented in Kyllo was whether the government could use an electronic device, thermal imaging, that was not available to the general public to gather information on a private home that would had previously required physical intrusion. Finding that the use of such devises constitutes a search under the 4th amendment, and thus, presumptively unreasonable without a warrant, the Court wrote:<br />
<blockquote> While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes-the prototypical and hence most commonly litigated area of protected privacy-there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, 81 S.Ct. 679, constitutes a search-at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search. <ref> Kyllo v. U.S., 533 U.S. 27, 34-35 (2001)</ref></blockquote> <br />
<br />
----<br />
<br />
See [[Evidence]]<br />
<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Electronic_Surveillance&diff=9926Electronic Surveillance2011-03-28T00:50:58Z<p>Durankar: /* India */</p>
<hr />
<div>==Background==<br />
Electronic surveillance is increasingly fertile area of litigation as modern technology poses new problems and offers fresh investigatory tools for police and security forces around the globe. The most common method of electronic surveillance is wiretapping in which police or other state agents record telephone conversations of third parties. <br />
<br />
==International Law==<br />
<br />
==Specific Country Examples==<br />
<br />
===India===<br />
<br />
The authorities can receive permission to conduct a wiretap under the Indian Telegraph Act of 1885 Part 2 Section 5(2):<br />
<br />
<blockquote>On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: <br />
<br />
Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.</blockquote><br />
<br />
Evidence obtained through a wiretap cannot be presented as primary evidence at trial.<ref><br />
https://www.privacyinternational.org/survey/phr2003/countries/india.htm</ref><br />
<br />
===United States===<br />
Despite the Constitutional issues surrounding wiretapping, much of wiretapping law is regulated by the Federal Government under Title III of the Omnibus Crime Control Act and Safe Streets Act of 1968.<br />
<br />
The [[United State Supreme Court]] in Katz v. United concluded that the Fourth Amendment of the [[United States Constitution]] proteted telephone calls made within phone booths.<ref>Katz v. United States, 389 U.S. 347 (1967)</ref> The decision rested on two principles:<br />
<br />
First, the Court concluded that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which [the defendant] justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." <br />
<br />
The Court introduced a new model for determining whether a right to privacy existed. In prior cases, the Fourth Amendment was thought to protect activities that occurred only in certain locations, such as private homes or automobiles. The Court determined that this location-based scheme was not always justified, concluding that the appropriate test was not the location. but whether the conversation was made with a "reasonable expectation of privacy." This expectation has two components. Under the subjective component the defendant must wish to make their conversation private. This desire for privacy must also be a reasonable one that society is willing to support. Under this new holding the Fourth Amendment was said to protect people, not places.<br />
<br />
The Court further restricted the use of electronic surveillance in U.S. v. Karo, 468 U.S. 705 (1984). In Karo, the Court addressed whether an electronic beeper, installed in a container of chemicals with the consent of the owner, violated the defendant’s 4th amendment rights and whether the information provided by the beeper falls under the protection of the 4th amendment when it provides information that could not have been gathered through visual surveillance. The Court concluded that the installation alone did not violate the defendant’s 4th amendment rights, stating:<br />
<blockquote>The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. A holding to that effect would mean that a policeman walking down the street carrying a parabolic microphone capable of picking up conversations in nearby homes would be engaging in a search even if the microphone were not turned on. It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence. <ref>U.S. v. Karo, 468 U.S. 705, 712 (1984)</ref></blockquote><br />
The information provided by the beeper, however, was protected by the 4th amendment. <br />
<blockquote> In this case, had a DEA agent thought it useful to enter the Taos residence to verify that the ether was actually in the house and had he done so surreptitiously and without a warrant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose residence is being watched. Even if visual surveillance has revealed that the article to which the beeper is attached has entered the house, the later monitoring not only verifies the officers' observations but also establishes that the article remains on the premises. Here, for example, the beeper was monitored for a significant period after the arrival of the ether in Taos and before the application for a warrant to search. <ref>U.S. v. Karo, 468 U.S. 705, 715 (1984)</ref></blockquote><br />
More recently, in Kyllo v. U.S. 533 U.S. 27 (2001), the Court again addressed electronic surveillance. The question presented in Kyllo was whether the government could use an electronic device, thermal imaging, that was not available to the general public to gather information on a private home that would had previously required physical intrusion. Finding that the use of such devises constitutes a search under the 4th amendment, and thus, presumptively unreasonable without a warrant, the Court wrote:<br />
<blockquote> While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes-the prototypical and hence most commonly litigated area of protected privacy-there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, 81 S.Ct. 679, constitutes a search-at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search. <ref> Kyllo v. U.S., 533 U.S. 27, 34-35 (2001)</ref></blockquote> <br />
<br />
----<br />
<br />
See [[Evidence]]<br />
<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Electronic_Surveillance&diff=9875Electronic Surveillance2011-03-22T23:55:42Z<p>Durankar: /* India */</p>
<hr />
<div>==Background==<br />
Electronic surveillance is increasingly fertile area of litigation as modern technology poses new problems and offers fresh investigatory tools for police and security forces around the globe. The most common method of electronic surveillance is wiretapping in which police or other state agents record telephone conversations of third parties. <br />
<br />
==International Law==<br />
<br />
==Specific Country Examples==<br />
<br />
===India===<br />
<br />
The authorities can receive permission to conduct a wiretap under the Indian Telegraph Act of 1885 Part 2 Section 5(2):<br />
<br />
<blockquote>On the occurrence of any public emergency, or in the interest of the public safety, the Central Government or a State Government or any officer specially authorized in this behalf by the Central Government or a State Government may, if satisfied that it is necessary or expedient so to do in the interests of the sovereignty and integrity of India, the security of the State, friendly relations with foreign States or public order or for preventing incitement to the commission of an offence, for reasons to be recorded in writing, by order, direct that any message or class of messages to or from any person or class of persons, or relating to any particular subject, brought for transmission by or transmitted or received by any telegraph, shall not be transmitted, or shall be intercepted or detained, or shall be disclosed to the Government making the order or an officer thereof mentioned in the order: <br />
<br />
Provided that press messages intended to be published in India of correspondents accredited to the Central Government or a State Government shall not be intercepted or detained, unless their transmission has been prohibited under this sub-section.</blockquote><br />
<br />
===United States===<br />
Despite the Constitutional issues surrounding wiretapping, much of wiretapping law is regulated by the Federal Government under Title III of the Omnibus Crime Control Act and Safe Streets Act of 1968.<br />
<br />
The [[United State Supreme Court]] in Katz v. United concluded that the Fourth Amendment of the [[United States Constitution]] proteted telephone calls made within phone booths.<ref>Katz v. United States, 389 U.S. 347 (1967)</ref> The decision rested on two principles:<br />
<br />
First, the Court concluded that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which [the defendant] justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." <br />
<br />
The Court introduced a new model for determining whether a right to privacy existed. In prior cases, the Fourth Amendment was thought to protect activities that occurred only in certain locations, such as private homes or automobiles. The Court determined that this location-based scheme was not always justified, concluding that the appropriate test was not the location. but whether the conversation was made with a "reasonable expectation of privacy." This expectation has two components. Under the subjective component the defendant must wish to make their conversation private. This desire for privacy must also be a reasonable one that society is willing to support. Under this new holding the Fourth Amendment was said to protect people, not places.<br />
<br />
The Court further restricted the use of electronic surveillance in U.S. v. Karo, 468 U.S. 705 (1984). In Karo, the Court addressed whether an electronic beeper, installed in a container of chemicals with the consent of the owner, violated the defendant’s 4th amendment rights and whether the information provided by the beeper falls under the protection of the 4th amendment when it provides information that could not have been gathered through visual surveillance. The Court concluded that the installation alone did not violate the defendant’s 4th amendment rights, stating:<br />
<blockquote>The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. A holding to that effect would mean that a policeman walking down the street carrying a parabolic microphone capable of picking up conversations in nearby homes would be engaging in a search even if the microphone were not turned on. It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence. <ref>U.S. v. Karo, 468 U.S. 705, 712 (1984)</ref></blockquote><br />
The information provided by the beeper, however, was protected by the 4th amendment. <br />
<blockquote> In this case, had a DEA agent thought it useful to enter the Taos residence to verify that the ether was actually in the house and had he done so surreptitiously and without a warrant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose residence is being watched. Even if visual surveillance has revealed that the article to which the beeper is attached has entered the house, the later monitoring not only verifies the officers' observations but also establishes that the article remains on the premises. Here, for example, the beeper was monitored for a significant period after the arrival of the ether in Taos and before the application for a warrant to search. <ref>U.S. v. Karo, 468 U.S. 705, 715 (1984)</ref></blockquote><br />
More recently, in Kyllo v. U.S. 533 U.S. 27 (2001), the Court again addressed electronic surveillance. The question presented in Kyllo was whether the government could use an electronic device, thermal imaging, that was not available to the general public to gather information on a private home that would had previously required physical intrusion. Finding that the use of such devises constitutes a search under the 4th amendment, and thus, presumptively unreasonable without a warrant, the Court wrote:<br />
<blockquote> While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes-the prototypical and hence most commonly litigated area of protected privacy-there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, 81 S.Ct. 679, constitutes a search-at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search. <ref> Kyllo v. U.S., 533 U.S. 27, 34-35 (2001)</ref></blockquote> <br />
<br />
----<br />
<br />
See [[Evidence]]<br />
<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Electronic_Surveillance&diff=9874Electronic Surveillance2011-03-22T23:44:46Z<p>Durankar: </p>
<hr />
<div>==Background==<br />
Electronic surveillance is increasingly fertile area of litigation as modern technology poses new problems and offers fresh investigatory tools for police and security forces around the globe. The most common method of electronic surveillance is wiretapping in which police or other state agents record telephone conversations of third parties. <br />
<br />
==International Law==<br />
<br />
==Specific Country Examples==<br />
<br />
===India===<br />
<br />
<br />
<br />
===United States===<br />
Despite the Constitutional issues surrounding wiretapping, much of wiretapping law is regulated by the Federal Government under Title III of the Omnibus Crime Control Act and Safe Streets Act of 1968.<br />
<br />
The [[United State Supreme Court]] in Katz v. United concluded that the Fourth Amendment of the [[United States Constitution]] proteted telephone calls made within phone booths.<ref>Katz v. United States, 389 U.S. 347 (1967)</ref> The decision rested on two principles:<br />
<br />
First, the Court concluded that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which [the defendant] justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." <br />
<br />
The Court introduced a new model for determining whether a right to privacy existed. In prior cases, the Fourth Amendment was thought to protect activities that occurred only in certain locations, such as private homes or automobiles. The Court determined that this location-based scheme was not always justified, concluding that the appropriate test was not the location. but whether the conversation was made with a "reasonable expectation of privacy." This expectation has two components. Under the subjective component the defendant must wish to make their conversation private. This desire for privacy must also be a reasonable one that society is willing to support. Under this new holding the Fourth Amendment was said to protect people, not places.<br />
<br />
The Court further restricted the use of electronic surveillance in U.S. v. Karo, 468 U.S. 705 (1984). In Karo, the Court addressed whether an electronic beeper, installed in a container of chemicals with the consent of the owner, violated the defendant’s 4th amendment rights and whether the information provided by the beeper falls under the protection of the 4th amendment when it provides information that could not have been gathered through visual surveillance. The Court concluded that the installation alone did not violate the defendant’s 4th amendment rights, stating:<br />
<blockquote>The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. A holding to that effect would mean that a policeman walking down the street carrying a parabolic microphone capable of picking up conversations in nearby homes would be engaging in a search even if the microphone were not turned on. It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence. <ref>U.S. v. Karo, 468 U.S. 705, 712 (1984)</ref></blockquote><br />
The information provided by the beeper, however, was protected by the 4th amendment. <br />
<blockquote> In this case, had a DEA agent thought it useful to enter the Taos residence to verify that the ether was actually in the house and had he done so surreptitiously and without a warrant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose residence is being watched. Even if visual surveillance has revealed that the article to which the beeper is attached has entered the house, the later monitoring not only verifies the officers' observations but also establishes that the article remains on the premises. Here, for example, the beeper was monitored for a significant period after the arrival of the ether in Taos and before the application for a warrant to search. <ref>U.S. v. Karo, 468 U.S. 705, 715 (1984)</ref></blockquote><br />
More recently, in Kyllo v. U.S. 533 U.S. 27 (2001), the Court again addressed electronic surveillance. The question presented in Kyllo was whether the government could use an electronic device, thermal imaging, that was not available to the general public to gather information on a private home that would had previously required physical intrusion. Finding that the use of such devises constitutes a search under the 4th amendment, and thus, presumptively unreasonable without a warrant, the Court wrote:<br />
<blockquote> While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes-the prototypical and hence most commonly litigated area of protected privacy-there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, 81 S.Ct. 679, constitutes a search-at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search. <ref> Kyllo v. U.S., 533 U.S. 27, 34-35 (2001)</ref></blockquote> <br />
<br />
----<br />
<br />
See [[Evidence]]<br />
<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=India&diff=9136India2011-02-18T11:27:30Z<p>Durankar: /* Background */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">INDIAN CRIMINAL DEFENSE MANUAL</h2><br />
# [[India Criminal Defense Manual - The Role And Responsibility of a Legal Aid Lawyer|The Role And Responsibility of a Legal Aid Lawyer]]<br />
# [[India Criminal Defense Manual - Rights of the Accused and Exceptional Circumstances|Rights of the Accused and Exceptional Circumstances]]<br />
# [[India Criminal Defense Manual - Client Interview|Client Interview]]<br />
# [[India Criminal Defense Manual - Other Pretrial Matters|Other Pretrial Matters]] <br />
# [[India Criminal Defense Manual - Theory of the Case|Theory of the Case]]<br />
# [[India Criminal Defense Manual - Various Defense Strategies|Various Defense Strategies]] <br />
# [[India Criminal Defense Manual - Questioning the Witness|Questioning the Witness]] <br />
# [[India Criminal Defense Manual - Plea Bargaining/Guilty Pleas|Plea Bargaining/Guilty Plea]]<br />
# [[India Criminal Defense Manual - Evidence|Evidence]] <br />
# [[India Criminal Defense Manual - Arguments|Arguments]] <br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html The Constitution of India]<br />
*[http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm The Indian Evidence Act, 1872]<br />
*[http://www.netlawman.co.in/acts/indian-penal-code-1860.php The Indian Penal Code, 1860]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Media:India Country Summary Card.pdf | India Country Summary Card]]<br />
*[[Rights of the Accused | Rights of the Accused Around the World]]<br />
* [[Important Case Law regarding Defendant's Rights for Indian Criminal Defense Lawyers]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Indian lawyers]<br />
|}<br />
==Background==<br />
India has one of the world's largest populations of pre-trial detainees with 249,796 people in overcrowded and unsanitary prisons. While in police custody, these Indian citizens are often subjected to beatings, sleep deprivation, and shock treatments - all in violation of their fundamental constitutional rights. Subjected to inhuman and degrading treatment, they are an example of human rights abuses on a colossal scale. Four people die in police or judicial custody every day from these abuses.<br />
<br />
Many of these deaths could be avoided if cases were swiftly resolved. However, each year more cases are filed in Indian courts than can ever be disposed of, creating a huge bottleneck in the criminal justice system. There are currently 26,752,193 pending cases in Indian courts and in some jurisdictions case loads are so high that it would take a thousand years to clear court dockets. Because of this backlog, detainees who cannot make bail are sometimes kept in pretrial detention longer than the maximum sentence they would have received if convicted. In one case, a man was held in pretrial detention for 54 years even though the maximum sentence for his crime was only 10 years. During these periods of pre-trial detention, arrestees are at the greatest risk of human rights abuses as victims have reported that the longer the period of detention, the more intense the violence against them becomes.<br />
<br />
These abuses are made worse and worse by the continuing deterioration of the Indian Police, one of the most ill-equipped police departments in the world. For every 1,037 Indian residents there is only one police officer. (Asian average: 558, global average: 333). Understaffed, under-skilled and under-resourced, the police in many Indian states work long hours under filthy labor conditions. Junior officers face intense pressure from supervisors to solve cases quickly and efficiently. As a result, bribery, brutal torture, murders, illegal arrests and other human rights abuses have become the norm, rather than the exception.<br />
<br />
Recently, India has demonstrated an increased commitment to rule of law and citizens’ legal rights. Because of police abuses during interrogation, Article 22 of the Indian Constitution was added to prevent police from detaining citizens for longer than 24 hours without a special order from a magistrate. Though domestic law grants this fundamental legal right, there remains a tremendous gulf between the actual law and its implementation. Police officers regularly detain suspects for several days, post-dating arrest documents 24-hours before producing the defendant before the magistrate. Similarly, pretrial detainees are routinely denied due process rights taken for granted in the western world: notice of charges and an opportunity to contact family or lawyers. In many cases these prisoners – poor and marginally literate – are completely unaware they have any legal rights at all, further emboldening police officers. <br />
<br />
NGOs have been successful in lobbying Indian authorities to criminalize torture, organizing public awareness campaigns on the issue of torture and aiding the rehabilitation of torture victims. However, systematic police denial, obstruction, an absence of records and a lack of accountability continues to plague the system. <br />
<br />
Despite the fact that India has a limited legal aid system, the vast majority of pre-trial detainees never receive any legal representation, making this right illusory at best. India's current legal aid system operates primarily in urban areas, and due to caste segregation many Indians do not receive access to legal aid at all. Each of India's 28 states operates its own Legal Services Authority, resulting in an uncoordinated approach to India's legal aid problems.<br />
<br />
==Type of System==<br />
<br />
A former British colony, India has a criminal justice system heavily influenced by the English common law system. There are, however, significant differences. For instance, India banned the use of jury trials in 1960.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
Defendants' rights are protected by the Constitution of India, the Criminal Procedure Code of 1973 and the Indian Evidence Act of 1872 which governs a suspects rights prior to trial. In addition, defendants' rights are established by case law by regional and national courts. By law, Indian defendants retain a significant number of rights including the right to counsel<ref>Constitution of India, Art. 22(1)</ref>, the right to silence <ref>Constitution of India, Art. 20(3)</ref>, the right to a fair trial<ref>Constitution of India, Art. 14</ref>, the right to confront witnesses<ref>India Evidence Act, Section 138</ref> and the right to a speedy trial<ref> Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) I SCC 98</ref><br />
<br />
==Defendants' Rights==<br />
<br />
<br />
====Pre-Trial====<br />
The arrest of a defendant must be made if a reasonable complaint has been made or credible information received or a reasonable suspicion exists that an individual committed a crime<ref> Criminal Procedure Code, Sect. 41</ref>. Police may conduct a search upon probable cause and the issuance of a search warrant.<br />
<br />
A defendant may be detained pending trial. For bailable offenses a Magistrate must notify the accused of his right to bail and prescribe the amount of bail. The defendant has the right to identify an individual to be informed of his or her arrest.<ref> Criminal Procedure Code, Section 50A</ref>. An arrestee has the right to demand an "Inspection Memo" for documenting any injuries incurred during or after arrest and has the right to a medical examination every 48 hours.<br />
<br />
A defendant has the right to meet a lawyer during interrogation though not throughout the entire duration of the interrogation.<br />
<br />
Defendants in police custody must be produced before a Magistrate within 24 hours of arrest. <ref>Constitution of India, Article 22(2)</ref><br />
<br />
The right to counsel applies to all custodial interrogations as well as critical stages of the proceedings including post-indictment interrogations, arraignments, gulity pleas and trials.<ref> State of M.P. v. Shobharam, AIR 1966 SC 1910: (1966) Cri LJ 1521</ref><br />
<br />
====Trial====<br />
A defendant has the right to a fair trial in open court <ref> Criminal Procedure Code Sec. 327</ref> as well as the right to confront witnesses <ref> Indian Evidence Act Sec. 138</ref>. Jury trials were abandoned in 1960 and all trials occur with the judge sitting as finder of both law and fact.<br />
<br />
Confessions to police are inadmissible as evidence. Confessions may be admissible if made to a Magistrate and only if the Magistrate examines the circumstances of the confession for possible police coercion or intimidation<ref>Criminal Procedure Code, Sect. 164.</ref><br />
<br />
====Post-Conviction====<br />
The Constitution of India prohibits an individual from being prosecuted and punished form the same offence more than once.<ref> Constitution of India, Art. 20(2).</ref> The Criminal Procedure Code states that every individual convicted in High Court may appeal to the Supreme Court. Any person convicted on a trial held by a Sessions Judge or Additional Sessions Judge or a trial in any other court in which the sentence of imprisonment is more than seven years may appeal to the High Court. The defendant must show that a miscarriage of justice jeapardized the fundamental fairness of the trial in order to secure reversal.<ref> For a full list of appealable issues see Criminal Procedure Code, 1973, Sections 460-466.</ref><br />
<br />
The Indian Supreme Court may enforce Constitution rights by Habeas corpus, mandamus, prohibition, quo warranto and certiorari <ref> Constitution of India, Art. 32(2)</ref> <br />
----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*There are 26,752,193 pending cases in Indian courts. In some jurisdictions case loads are so high that it would take a thousand years to clear court dockets.<br />
<br />
==References==<br />
<references/><br />
<br />
{{Languages|India}} <br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=India&diff=9134India2011-02-18T11:23:51Z<p>Durankar: /* Sources of Defendants' Rights */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">INDIAN CRIMINAL DEFENSE MANUAL</h2><br />
# [[India Criminal Defense Manual - The Role And Responsibility of a Legal Aid Lawyer|The Role And Responsibility of a Legal Aid Lawyer]]<br />
# [[India Criminal Defense Manual - Rights of the Accused and Exceptional Circumstances|Rights of the Accused and Exceptional Circumstances]]<br />
# [[India Criminal Defense Manual - Client Interview|Client Interview]]<br />
# [[India Criminal Defense Manual - Other Pretrial Matters|Other Pretrial Matters]] <br />
# [[India Criminal Defense Manual - Theory of the Case|Theory of the Case]]<br />
# [[India Criminal Defense Manual - Various Defense Strategies|Various Defense Strategies]] <br />
# [[India Criminal Defense Manual - Questioning the Witness|Questioning the Witness]] <br />
# [[India Criminal Defense Manual - Plea Bargaining/Guilty Pleas|Plea Bargaining/Guilty Plea]]<br />
# [[India Criminal Defense Manual - Evidence|Evidence]] <br />
# [[India Criminal Defense Manual - Arguments|Arguments]] <br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html The Constitution of India]<br />
*[http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm The Indian Evidence Act, 1872]<br />
*[http://www.netlawman.co.in/acts/indian-penal-code-1860.php The Indian Penal Code, 1860]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Media:India Country Summary Card.pdf | India Country Summary Card]]<br />
*[[Rights of the Accused | Rights of the Accused Around the World]]<br />
* [[Important Case Law regarding Defendant's Rights for Indian Criminal Defense Lawyers]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Indian lawyers]<br />
|}<br />
==Background==<br />
India has one of the world's largest populations of pre-trial detainees with 249,796 people in overcrowded and unsanitary prisons. While in police custody, these Indian citizens are often subjected to beatings, sleep deprivation, and shock treatments - all in violation of their fundamental constitutional rights. Subjected to inhuman and degrading treatment, they are an example of human rights abuses on a colossal scale. Four people die in police or judicial custody every day from these abuses.<br />
<br />
Many of these deaths could be avoided if cases were swiftly resolved. However, each year more cases are filed in Indian courts than can ever be disposed of, creating a huge bottleneck in the criminal justice system. There are currently 26,752,193 pending cases in Indian courts and in some jurisdictions case loads are so high that it would take a thousand years to clear court dockets. Because of this backlog, detainees who cannot make bail are sometimes kept in pretrial detention longer than the maximum sentence they would have received if convicted. In one case, a man was held in pretrial detention for 54 years even though the maximum sentence for his crime was only 10 years. During these periods of pre-trial detention, arrestees are at the greatest risk of human rights abuses as victims have reported that the longer the period of detention, the more intense the violence against them becomes.<br />
<br />
These abuses are made worse and worse by the continuing deterioration of the Indian Police, one of the most ill-equipped police departments in the world. For every 1,037 Indian residents there is only one police officer. (Asian average: 558, global average: 333). Understaffed, under-skilled and under-resourced, the police in many Indian states work long hours under filthy labor conditions. Junior officers face intense pressure from supervisors to solve cases quickly and efficiently. As a result, bribery, brutal torture, murders, illegal arrests and other human rih have become the norm, rather than the exception.<br />
<br />
Recently, India has demonstrated an increased commitment to rule of law and citizens’ legal rights. Because of police abuses during interrogation, Article 22 of the Indian Constitution was added to prevent police from detaining citizens for longer than 24 hours without a special order from a magistrate. Though domestic law grants this fundamental legal right, there remains a tremendous gulf between the actual law and its implementation. Police officers regularly detain suspects for several days, post-dating arrest documents 24-hours before producing the defendant before the magistrate. Similarly, pretrial detainees are routinely denied due process rights taken for granted in the western world: notice of charges and an opportunity to contact family or lawyers. In many cases these prisoners – poor and marginally literate – are completely unaware they have any legal rights at all, further emboldening police officers. <br />
<br />
NGOs have been successful in lobbying Indian authorities to criminalize torture, organizing public awareness campaigns on the issue of torture and aiding the rehabilitation of torture victims. However, systematic police denial, obstruction, an absence of records and a lack of accountability continues to plague the system. <br />
<br />
Despite the fact that India has a limited legal aid system, the vast majority of pre-trial detainees never receive any legal representation, making this right illusory at best. India's current legal aid system operates primarily in urban areas, and due to caste segregation many Indians do not receive access to legal aid at all. Each of India's 28 states operates its own Legal Services Authority, resulting in an uncoordinated approach to India's legal aid problems.<br />
<br />
==Type of System==<br />
<br />
A former British colony, India has a criminal justice system heavily influenced by the English common law system. There are, however, significant differences. For instance, India banned the use of jury trials in 1960.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
Defendants' rights are protected by the Constitution of India, the Criminal Procedure Code of 1973 and the Indian Evidence Act of 1872 which governs a suspects rights prior to trial. In addition, defendants' rights are established by case law by regional and national courts. By law, Indian defendants retain a significant number of rights including the right to counsel<ref>Constitution of India, Art. 22(1)</ref>, the right to silence <ref>Constitution of India, Art. 20(3)</ref>, the right to a fair trial<ref>Constitution of India, Art. 14</ref>, the right to confront witnesses<ref>India Evidence Act, Section 138</ref> and the right to a speedy trial<ref> Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) I SCC 98</ref><br />
<br />
==Defendants' Rights==<br />
<br />
<br />
====Pre-Trial====<br />
The arrest of a defendant must be made if a reasonable complaint has been made or credible information received or a reasonable suspicion exists that an individual committed a crime<ref> Criminal Procedure Code, Sect. 41</ref>. Police may conduct a search upon probable cause and the issuance of a search warrant.<br />
<br />
A defendant may be detained pending trial. For bailable offenses a Magistrate must notify the accused of his right to bail and prescribe the amount of bail. The defendant has the right to identify an individual to be informed of his or her arrest.<ref> Criminal Procedure Code, Section 50A</ref>. An arrestee has the right to demand an "Inspection Memo" for documenting any injuries incurred during or after arrest and has the right to a medical examination every 48 hours.<br />
<br />
A defendant has the right to meet a lawyer during interrogation though not throughout the entire duration of the interrogation.<br />
<br />
Defendants in police custody must be produced before a Magistrate within 24 hours of arrest. <ref>Constitution of India, Article 22(2)</ref><br />
<br />
The right to counsel applies to all custodial interrogations as well as critical stages of the proceedings including post-indictment interrogations, arraignments, gulity pleas and trials.<ref> State of M.P. v. Shobharam, AIR 1966 SC 1910: (1966) Cri LJ 1521</ref><br />
<br />
====Trial====<br />
A defendant has the right to a fair trial in open court <ref> Criminal Procedure Code Sec. 327</ref> as well as the right to confront witnesses <ref> Indian Evidence Act Sec. 138</ref>. Jury trials were abandoned in 1960 and all trials occur with the judge sitting as finder of both law and fact.<br />
<br />
Confessions to police are inadmissible as evidence. Confessions may be admissible if made to a Magistrate and only if the Magistrate examines the circumstances of the confession for possible police coercion or intimidation<ref>Criminal Procedure Code, Sect. 164.</ref><br />
<br />
====Post-Conviction====<br />
The Constitution of India prohibits an individual from being prosecuted and punished form the same offence more than once.<ref> Constitution of India, Art. 20(2).</ref> The Criminal Procedure Code states that every individual convicted in High Court may appeal to the Supreme Court. Any person convicted on a trial held by a Sessions Judge or Additional Sessions Judge or a trial in any other court in which the sentence of imprisonment is more than seven years may appeal to the High Court. The defendant must show that a miscarriage of justice jeapardized the fundamental fairness of the trial in order to secure reversal.<ref> For a full list of appealable issues see Criminal Procedure Code, 1973, Sections 460-466.</ref><br />
<br />
The Indian Supreme Court may enforce Constitution rights by Habeas corpus, mandamus, prohibition, quo warranto and certiorari <ref> Constitution of India, Art. 32(2)</ref> <br />
----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*There are 26,752,193 pending cases in Indian courts. In some jurisdictions case loads are so high that it would take a thousand years to clear court dockets.<br />
<br />
==References==<br />
<references/><br />
<br />
{{Languages|India}} <br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=India&diff=9133India2011-02-18T11:22:55Z<p>Durankar: /* Background */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">INDIAN CRIMINAL DEFENSE MANUAL</h2><br />
# [[India Criminal Defense Manual - The Role And Responsibility of a Legal Aid Lawyer|The Role And Responsibility of a Legal Aid Lawyer]]<br />
# [[India Criminal Defense Manual - Rights of the Accused and Exceptional Circumstances|Rights of the Accused and Exceptional Circumstances]]<br />
# [[India Criminal Defense Manual - Client Interview|Client Interview]]<br />
# [[India Criminal Defense Manual - Other Pretrial Matters|Other Pretrial Matters]] <br />
# [[India Criminal Defense Manual - Theory of the Case|Theory of the Case]]<br />
# [[India Criminal Defense Manual - Various Defense Strategies|Various Defense Strategies]] <br />
# [[India Criminal Defense Manual - Questioning the Witness|Questioning the Witness]] <br />
# [[India Criminal Defense Manual - Plea Bargaining/Guilty Pleas|Plea Bargaining/Guilty Plea]]<br />
# [[India Criminal Defense Manual - Evidence|Evidence]] <br />
# [[India Criminal Defense Manual - Arguments|Arguments]] <br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html The Constitution of India]<br />
*[http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm The Indian Evidence Act, 1872]<br />
*[http://www.netlawman.co.in/acts/indian-penal-code-1860.php The Indian Penal Code, 1860]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Media:India Country Summary Card.pdf | India Country Summary Card]]<br />
*[[Rights of the Accused | Rights of the Accused Around the World]]<br />
* [[Important Case Law regarding Defendant's Rights for Indian Criminal Defense Lawyers]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Indian lawyers]<br />
|}<br />
==Background==<br />
India has one of the world's largest populations of pre-trial detainees with 249,796 people in overcrowded and unsanitary prisons. While in police custody, these Indian citizens are often subjected to beatings, sleep deprivation, and shock treatments - all in violation of their fundamental constitutional rights. Subjected to inhuman and degrading treatment, they are an example of human rights abuses on a colossal scale. Four people die in police or judicial custody every day from these abuses.<br />
<br />
Many of these deaths could be avoided if cases were swiftly resolved. However, each year more cases are filed in Indian courts than can ever be disposed of, creating a huge bottleneck in the criminal justice system. There are currently 26,752,193 pending cases in Indian courts and in some jurisdictions case loads are so high that it would take a thousand years to clear court dockets. Because of this backlog, detainees who cannot make bail are sometimes kept in pretrial detention longer than the maximum sentence they would have received if convicted. In one case, a man was held in pretrial detention for 54 years even though the maximum sentence for his crime was only 10 years. During these periods of pre-trial detention, arrestees are at the greatest risk of human rights abuses as victims have reported that the longer the period of detention, the more intense the violence against them becomes.<br />
<br />
These abuses are made worse and worse by the continuing deterioration of the Indian Police, one of the most ill-equipped police departments in the world. For every 1,037 Indian residents there is only one police officer. (Asian average: 558, global average: 333). Understaffed, under-skilled and under-resourced, the police in many Indian states work long hours under filthy labor conditions. Junior officers face intense pressure from supervisors to solve cases quickly and efficiently. As a result, bribery, brutal torture, murders, illegal arrests and other human rih have become the norm, rather than the exception.<br />
<br />
Recently, India has demonstrated an increased commitment to rule of law and citizens’ legal rights. Because of police abuses during interrogation, Article 22 of the Indian Constitution was added to prevent police from detaining citizens for longer than 24 hours without a special order from a magistrate. Though domestic law grants this fundamental legal right, there remains a tremendous gulf between the actual law and its implementation. Police officers regularly detain suspects for several days, post-dating arrest documents 24-hours before producing the defendant before the magistrate. Similarly, pretrial detainees are routinely denied due process rights taken for granted in the western world: notice of charges and an opportunity to contact family or lawyers. In many cases these prisoners – poor and marginally literate – are completely unaware they have any legal rights at all, further emboldening police officers. <br />
<br />
NGOs have been successful in lobbying Indian authorities to criminalize torture, organizing public awareness campaigns on the issue of torture and aiding the rehabilitation of torture victims. However, systematic police denial, obstruction, an absence of records and a lack of accountability continues to plague the system. <br />
<br />
Despite the fact that India has a limited legal aid system, the vast majority of pre-trial detainees never receive any legal representation, making this right illusory at best. India's current legal aid system operates primarily in urban areas, and due to caste segregation many Indians do not receive access to legal aid at all. Each of India's 28 states operates its own Legal Services Authority, resulting in an uncoordinated approach to India's legal aid problems.<br />
<br />
==Type of System==<br />
<br />
A former British colony, India has a criminal justice system heavily influenced by the English common law system. There are, however, significant differences. For instance, India banned the use of jury trials in 1960.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
Defendants' rights are protected both by the Constitution of India, the Criminal Procedure Code of 1973 and the Indian Evidence Act of 1872 which governs a suspects rights prior to trial. In addition, defendants' rights are established by case law by regional and national courts. By law, Indian defendants retain a significant number of rights including the right to counsel<ref>Constitution of India, Art. 22(1)</ref>, the right to silence <ref>Constitution of India, Art. 20(3)</ref>, the right to a fair trial<ref>Constitution of India, Art. 14</ref>, the right to confront witnesses<ref>India Evidence Act, Section 138</ref> and the right to a speedy trial<ref> Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) I SCC 98</ref><br />
<br />
==Defendants' Rights==<br />
<br />
<br />
====Pre-Trial====<br />
The arrest of a defendant must be made if a reasonable complaint has been made or credible information received or a reasonable suspicion exists that an individual committed a crime<ref> Criminal Procedure Code, Sect. 41</ref>. Police may conduct a search upon probable cause and the issuance of a search warrant.<br />
<br />
A defendant may be detained pending trial. For bailable offenses a Magistrate must notify the accused of his right to bail and prescribe the amount of bail. The defendant has the right to identify an individual to be informed of his or her arrest.<ref> Criminal Procedure Code, Section 50A</ref>. An arrestee has the right to demand an "Inspection Memo" for documenting any injuries incurred during or after arrest and has the right to a medical examination every 48 hours.<br />
<br />
A defendant has the right to meet a lawyer during interrogation though not throughout the entire duration of the interrogation.<br />
<br />
Defendants in police custody must be produced before a Magistrate within 24 hours of arrest. <ref>Constitution of India, Article 22(2)</ref><br />
<br />
The right to counsel applies to all custodial interrogations as well as critical stages of the proceedings including post-indictment interrogations, arraignments, gulity pleas and trials.<ref> State of M.P. v. Shobharam, AIR 1966 SC 1910: (1966) Cri LJ 1521</ref><br />
<br />
====Trial====<br />
A defendant has the right to a fair trial in open court <ref> Criminal Procedure Code Sec. 327</ref> as well as the right to confront witnesses <ref> Indian Evidence Act Sec. 138</ref>. Jury trials were abandoned in 1960 and all trials occur with the judge sitting as finder of both law and fact.<br />
<br />
Confessions to police are inadmissible as evidence. Confessions may be admissible if made to a Magistrate and only if the Magistrate examines the circumstances of the confession for possible police coercion or intimidation<ref>Criminal Procedure Code, Sect. 164.</ref><br />
<br />
====Post-Conviction====<br />
The Constitution of India prohibits an individual from being prosecuted and punished form the same offence more than once.<ref> Constitution of India, Art. 20(2).</ref> The Criminal Procedure Code states that every individual convicted in High Court may appeal to the Supreme Court. Any person convicted on a trial held by a Sessions Judge or Additional Sessions Judge or a trial in any other court in which the sentence of imprisonment is more than seven years may appeal to the High Court. The defendant must show that a miscarriage of justice jeapardized the fundamental fairness of the trial in order to secure reversal.<ref> For a full list of appealable issues see Criminal Procedure Code, 1973, Sections 460-466.</ref><br />
<br />
The Indian Supreme Court may enforce Constitution rights by Habeas corpus, mandamus, prohibition, quo warranto and certiorari <ref> Constitution of India, Art. 32(2)</ref> <br />
----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*There are 26,752,193 pending cases in Indian courts. In some jurisdictions case loads are so high that it would take a thousand years to clear court dockets.<br />
<br />
==References==<br />
<references/><br />
<br />
{{Languages|India}} <br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=India&diff=9128India2011-02-18T11:18:59Z<p>Durankar: /* Background */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">INDIAN CRIMINAL DEFENSE MANUAL</h2><br />
# [[India Criminal Defense Manual - The Role And Responsibility of a Legal Aid Lawyer|The Role And Responsibility of a Legal Aid Lawyer]]<br />
# [[India Criminal Defense Manual - Rights of the Accused and Exceptional Circumstances|Rights of the Accused and Exceptional Circumstances]]<br />
# [[India Criminal Defense Manual - Client Interview|Client Interview]]<br />
# [[India Criminal Defense Manual - Other Pretrial Matters|Other Pretrial Matters]] <br />
# [[India Criminal Defense Manual - Theory of the Case|Theory of the Case]]<br />
# [[India Criminal Defense Manual - Various Defense Strategies|Various Defense Strategies]] <br />
# [[India Criminal Defense Manual - Questioning the Witness|Questioning the Witness]] <br />
# [[India Criminal Defense Manual - Plea Bargaining/Guilty Pleas|Plea Bargaining/Guilty Plea]]<br />
# [[India Criminal Defense Manual - Evidence|Evidence]] <br />
# [[India Criminal Defense Manual - Arguments|Arguments]] <br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
*[http://www.vakilno1.com/bareacts/CrPc/Criminal-Procedure-Code-1973.htm The Code of Criminal Procedure]<br />
*[http://www.astro.virginia.edu/~sk4zw/india-const/const.html The Constitution of India]<br />
*[http://www.vakilno1.com/bareacts/indianevidenceact/indianevidenceact.htm The Indian Evidence Act, 1872]<br />
*[http://www.netlawman.co.in/acts/indian-penal-code-1860.php The Indian Penal Code, 1860]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
*[[Lawyer-Client Relationship (India)|Lawyer-Client Relationship]]<br />
*[[Media:India Country Summary Card.pdf | India Country Summary Card]]<br />
*[[Rights of the Accused | Rights of the Accused Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Indian lawyers]<br />
|}<br />
==Background==<br />
India has one of the world's largest populations of pre-trial detainees with 249,796 people in overcrowded and unsanitary prisons. While in police custody, these Indian citizens are often subjected to beatings, sleep deprivation, and shock treatments - all in violation of their fundamental constitutional rights. Subjected to inhuman and degrading treatment, they are an example of human rights abuses on a colossal scale. Four people die in police or judicial custody every day from these abuses.<br />
<br />
Many of these deaths could be avoided if cases were swiftly resolved. However, each year more cases are filed in Indian courts than can ever be disposed of, creating a huge bottleneck in the criminal justice system. There are currently 26,752,193 pending cases in Indian courts and in some jurisdictions case loads are so high that it would take a thousand years to clear court dockets. Because of this backlog, detainees who cannot make bail are sometimes kept in pretrial detention longer than the maximum sentence they would have received if convicted. In one case, a man was held in pretrial detention for 54 years even though the maximum sentence for his crime was only 10 years. During these periods of pre-trial detention, arrestees are at the greatest risk of human rights abuses as victims have reported that the longer the period of detention, the more intense the violence against them becomes.<br />
<br />
These abuses are made worse and worse by the continuing deterioration of the Indian Police, one of the most ill-equipped police departments in the world. For every 1,037 Indian residents there is only one police officer. (Asian average: 558, global average: 333). Understaffed, under-skilled and under-resourced, the police in many Indian states work long hours under filthy labor conditions. Junior officers face intense pressure from supervisors to solve cases quickly and efficiently. As a result, bribery, brutal torture, murders, illegal arrests and other human rih have become the norm, rather than the exception.<br />
<br />
Recently, India has demonstrated an increased commitment to rule of law and citizens’ legal rights. Because of police abuses during interrogation, Article 22 of the Indian Constitution was added to prevent police from detaining citizens for longer than 24 hours without a special order from a Magistrate. Though domestic law grants this fundamental legal right, there remains a tremendous gulf between the actual law and its implementation. Police officers regularly detain suspects for several days, post-dating arrest documents 24-hours before producing the defendant before the magistrate. Similarly, pretrial detainees are routinely denied due process rights taken for granted in the western world: notice of charges and an opportunity to contact family or lawyers. In many cases these prisoners – poor and marginally literate – are completely unaware they have any legal rights at all, further emboldening police officers. <br />
<br />
NGOs have been successful in lobbying Indian authorities to criminalize torture, organizing public awareness campaigns on the issue of torture and aiding the rehabilitation of torture victims. However, systematic police denial, obstruction, an absence of records and a lack of accountability continues to plague the system. <br />
<br />
Despite the fact that India has a limited legal aid system, the vast majority of pre-trial detainees never receive any legal representation, making this right illusory at best. India's current legal aid system operates primarily in urban areas, and due to caste segregation many Indians do not receive access to legal aid at all. Each of India's 28 states operates its own Legal Services Authority, resulting in an uncoordinated approach to India's legal aid problems.<br />
<br />
==Type of System==<br />
<br />
A former British colony, India has a criminal justice system heavily influenced by the English common law system. There are, however, significant differences. For instance, India banned the use of jury trials in 1960.<br />
<br />
==Sources of Defendants' Rights==<br />
<br />
Defendants' rights are protected both by the Constitution of India, the Criminal Procedure Code of 1973 and the Indian Evidence Act of 1872 which governs a suspects rights prior to trial. In addition, defendants' rights are established by case law by regional and national courts. By law, Indian defendants retain a significant number of rights including the right to counsel<ref>Constitution of India, Art. 22(1)</ref>, the right to silence <ref>Constitution of India, Art. 20(3)</ref>, the right to a fair trial<ref>Constitution of India, Art. 14</ref>, the right to confront witnesses<ref>India Evidence Act, Section 138</ref> and the right to a speedy trial<ref> Hussainara Khatoon & Ors. V. Home Secretary, Bihar, Patna, (1980) I SCC 98</ref><br />
<br />
==Defendants' Rights==<br />
<br />
<br />
====Pre-Trial====<br />
The arrest of a defendant must be made if a reasonable complaint has been made or credible information received or a reasonable suspicion exists that an individual committed a crime<ref> Criminal Procedure Code, Sect. 41</ref>. Police may conduct a search upon probable cause and the issuance of a search warrant.<br />
<br />
A defendant may be detained pending trial. For bailable offenses a Magistrate must notify the accused of his right to bail and prescribe the amount of bail. The defendant has the right to identify an individual to be informed of his or her arrest.<ref> Criminal Procedure Code, Section 50A</ref>. An arrestee has the right to demand an "Inspection Memo" for documenting any injuries incurred during or after arrest and has the right to a medical examination every 48 hours.<br />
<br />
A defendant has the right to meet a lawyer during interrogation though not throughout the entire duration of the interrogation.<br />
<br />
Defendants in police custody must be produced before a Magistrate within 24 hours of arrest. <ref>Constitution of India, Article 22(2)</ref><br />
<br />
The right to counsel applies to all custodial interrogations as well as critical stages of the proceedings including post-indictment interrogations, arraignments, gulity pleas and trials.<ref> State of M.P. v. Shobharam, AIR 1966 SC 1910: (1966) Cri LJ 1521</ref><br />
<br />
====Trial====<br />
A defendant has the right to a fair trial in open court <ref> Criminal Procedure Code Sec. 327</ref> as well as the right to confront witnesses <ref> Indian Evidence Act Sec. 138</ref>. Jury trials were abandoned in 1960 and all trials occur with the judge sitting as finder of both law and fact.<br />
<br />
Confessions to police are inadmissible as evidence. Confessions may be admissible if made to a Magistrate and only if the Magistrate examines the circumstances of the confession for possible police coercion or intimidation<ref>Criminal Procedure Code, Sect. 164.</ref><br />
<br />
====Post-Conviction====<br />
The Constitution of India prohibits an individual from being prosecuted and punished form the same offence more than once.<ref> Constitution of India, Art. 20(2).</ref> The Criminal Procedure Code states that every individual convicted in High Court may appeal to the Supreme Court. Any person convicted on a trial held by a Sessions Judge or Additional Sessions Judge or a trial in any other court in which the sentence of imprisonment is more than seven years may appeal to the High Court. The defendant must show that a miscarriage of justice jeapardized the fundamental fairness of the trial in order to secure reversal.<ref> For a full list of appealable issues see Criminal Procedure Code, 1973, Sections 460-466.</ref><br />
<br />
The Indian Supreme Court may enforce Constitution rights by Habeas corpus, mandamus, prohibition, quo warranto and certiorari <ref> Constitution of India, Art. 32(2)</ref> <br />
----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*There are 26,752,193 pending cases in Indian courts. In some jurisdictions case loads are so high that it would take a thousand years to clear court dockets.<br />
<br />
==References==<br />
<references/><br />
<br />
{{Languages|India}} <br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=Electronic_Surveillance&diff=9086Electronic Surveillance2011-02-18T10:23:20Z<p>Durankar: /* United States */</p>
<hr />
<div>==Background==<br />
Electronic surveillance is increasingly fertile area of litigation as modern technology poses new problems and offers fresh investigatory tools for police and security forces around the globe. The most common method of electronic surveillance is wiretapping in which police or other state agents record telephone conversations of third parties. <br />
<br />
==United States==<br />
Despite the Constitutional issues surrounding wiretapping, much of wiretapping law is regulated by the Federal Government under Title III of the Omnibus Crime Control Act and Safe Streets Act of 1968.<br />
<br />
The [[United State Supreme Court]] in Katz v. United concluded that the Fourth Amendment of the [[United States Constitution]] proteted telephone calls made within phone booths.<ref>Katz v. United States, 389 U.S. 347 (1967)</ref> The decision rested on two principles:<br />
<br />
First, the Court concluded that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which [the defendant] justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." <br />
<br />
The Court introduced a new model for determining whether a right to privacy existed. In prior cases, the Fourth Amendment was thought to protect activities that occurred only in certain locations, such as private homes or automobiles. The Court determined that this location-based scheme was not always justified, concluding that the appropriate test was not the location. but whether the conversation was made with a "reasonable expectation of privacy." This expectation has two components. Under the subjective component the defendant must wish to make their conversation private. This desire for privacy must also be a reasonable one that society is willing to support. Under this new holding the Fourth Amendment was said to protect people, not places.<br />
<br />
The Court further restricted the use of electronic surveillance in U.S. v. Karo, 468 U.S. 705 (1984). In Karo, the Court addressed whether an electronic beeper, installed in a container of chemicals with the consent of the owner, violated the defendant’s 4th amendment rights and whether the information provided by the beeper falls under the protection of the 4th amendment when it provides information that could not have been gathered through visual surveillance. The Court concluded that the installation alone did not violate the defendant’s 4th amendment rights, stating:<br />
<blockquote>The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. A holding to that effect would mean that a policeman walking down the street carrying a parabolic microphone capable of picking up conversations in nearby homes would be engaging in a search even if the microphone were not turned on. It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence. <ref>U.S. v. Karo, 468 U.S. 705, 712 (1984)</ref></blockquote><br />
The information provided by the beeper, however, was protected by the 4th amendment. <br />
<blockquote> In this case, had a DEA agent thought it useful to enter the Taos residence to verify that the ether was actually in the house and had he done so surreptitiously and without a warrant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose residence is being watched. Even if visual surveillance has revealed that the article to which the beeper is attached has entered the house, the later monitoring not only verifies the officers' observations but also establishes that the article remains on the premises. Here, for example, the beeper was monitored for a significant period after the arrival of the ether in Taos and before the application for a warrant to search. <ref>U.S. v. Karo, 468 U.S. 705, 715 (1984)</ref></blockquote><br />
More recently, in Kyllo v. U.S. 533 U.S. 27 (2001), the Court again addressed electronic surveillance. The question presented in Kyllo was whether the government could use an electronic device, thermal imaging, that was not available to the general public to gather information on a private home that would had previously required physical intrusion. Finding that the use of such devises constitutes a search under the 4th amendment, and thus, presumptively unreasonable without a warrant, the Court wrote:<br />
<blockquote> While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes-the prototypical and hence most commonly litigated area of protected privacy-there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, 81 S.Ct. 679, constitutes a search-at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search. <ref> Kyllo v. U.S., 533 U.S. 27, 34-35 (2001)</ref></blockquote> <br />
<br />
----<br />
<br />
See [[Evidence]]<br />
<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Electronic_Surveillance&diff=9084Electronic Surveillance2011-02-18T10:20:25Z<p>Durankar: </p>
<hr />
<div>==Background==<br />
Electronic surveillance is increasingly fertile area of litigation as modern technology poses new problems and offers fresh investigatory tools for police and security forces around the globe. The most common method of electronic surveillance is wiretapping in which police or other state agents record telephone conversations of third parties. <br />
<br />
==United States==<br />
Despite the Constitutional issues surrounding wiretapping, much of wiretapping law is regulated by the Federal Government under Title III of the Omnibus Crime Control Act and Safe Streets Act of 1968.<br />
<br />
The [[United State Supreme Court]] in Katz v. United concluded that the Fourth Amendment of the [[United States Constitution]] proteted telephone calls made within phone booths.<ref>Katz v. United States, 389 U.S. 347 (1967)</ref> The decision rested on two principles:<br />
<br />
First, the Court concluded that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which [the defendant] justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." <br />
<br />
Furthermore, the Court introduced a new model for determining whether a right to privacy existed. In prior cases, the Fourth Amendment was thought to protect activities that occurred only in certain locations, such as private homes or automobiles. The Court determined that this location-based scheme was not always justified, concluding that the appropriate test was not the location. but whether the conversation was made with a "reasonable expectation of privacy." This expectation has two components. Under the subjective component the defendant must wish to make their conversation private. This desire for privacy must also be a reasonable one that society is willing to support. Under this new holding the Fourth Amendment was said to protect people, not places.<br />
<br />
<br />
The Court further restricted the use of electronic surveillance in U.S. v. Karo, 468 U.S. 705 (1984). In Karo, the Court addressed whether an electronic beeper, installed in a container of chemicals with the consent of the owner, violated the defendant’s 4th amendment rights and whether the information provided by the beeper falls under the protection of the 4th amendment when it provides information that could not have been gathered through visual surveillance. The Court concluded that the installation, alone, did not violate the defendant’s 4th amendment rights, stating<br />
<blockquote>The mere transfer to Karo of a can containing an unmonitored beeper infringed no privacy interest. It conveyed no information that Karo wished to keep private, for it conveyed no information at all. To be sure, it created a potential for an invasion of privacy, but we have never held that potential, as opposed to actual, invasions of privacy constitute searches for purposes of the Fourth Amendment. A holding to that effect would mean that a policeman walking down the street carrying a parabolic microphone capable of picking up conversations in nearby homes would be engaging in a search even if the microphone were not turned on. It is the exploitation of technological advances that implicates the Fourth Amendment, not their mere existence. <ref>U.S. v. Karo, 468 U.S. 705, 712 (1984)</ref></blockquote><br />
The information provided by the beeper, however, was protected by the 4th amendment. <br />
<blockquote> In this case, had a DEA agent thought it useful to enter the Taos residence to verify that the ether was actually in the house and had he done so surreptitiously and without a warrant, there is little doubt that he would have engaged in an unreasonable search within the meaning of the Fourth Amendment. For purposes of the Amendment, the result is the same where, without a warrant, the Government surreptitiously employs an electronic device to obtain information that it could not have obtained by observation from outside the curtilage of the house. The beeper tells the agent that a particular article is actually located at a particular time in the private residence and is in the possession of the person or persons whose residence is being watched. Even if visual surveillance has revealed that the article to which the beeper is attached has entered the house, the later monitoring not only verifies the officers' observations but also establishes that the article remains on the premises. Here, for example, the beeper was monitored for a significant period after the arrival of the ether in Taos and before the application for a warrant to search. <ref>U.S. v. Karo, 468 U.S. 705, 715 (1984)</ref></blockquote><br />
More recently, in Kyllo v. U.S. 533 U.S. 27 (2001), the Court again addressed electronic surveillance. The question presented in Kyllo was whether the government could use an electronic device, thermal imaging, that was not available to the general public to gather information on a private home that would had previously required physical intrusion. Finding that the use of such devises constitutes a search under the 4th amendment, and thus, presumptively unreasonable without a warrant, the Court wrote:<br />
<blockquote> While it may be difficult to refine Katz when the search of areas such as telephone booths, automobiles, or even the curtilage and uncovered portions of residences is at issue, in the case of the search of the interior of homes-the prototypical and hence most commonly litigated area of protected privacy-there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable. To withdraw protection of this minimum expectation would be to permit police technology to erode the privacy guaranteed by the Fourth Amendment. We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical “intrusion into a constitutionally protected area,” Silverman, 365 U.S., at 512, 81 S.Ct. 679, constitutes a search-at least where (as here) the technology in question is not in general public use. This assures preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted. On the basis of this criterion, the information obtained by the thermal imager in this case was the product of a search. <ref> Kyllo v. U.S., 533 U.S. 27, 34-35 (2001)</ref></blockquote> <br />
<br />
----<br />
<br />
See [[Evidence]]<br />
<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=China&diff=9076China2011-02-16T15:06:15Z<p>Durankar: /* Court procedures */</p>
<hr />
<div>{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"<br />
|-<br />
|<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CHINESE CRIMINAL DEFENSE MANUAL</h2><br />
# [[China Criminal Defense Manual - Pretrial Preparation | Pretrial Preparation]] (Investigation and Trial Prosecution)<br />
# [[China Criminal Defense Manual - Developing a Defense for Trial | Developing a Defense for Trial]] <br />
# [[China Criminal Defense Manual - Questioning the Witness | Questioning the Witness]] <br />
# [[China Criminal Defense Manual - Special Considerations in Juvenile Cases | Special Considerations in Juvenile Cases]] <br />
# [[China Criminal Defense Manual - Cases Involving a Possible Death Penalty | Cases Involving a Possible Death Penalty]]<br />
# [[China Criminal Defense Manual - Motions | Motions]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">CODES</h2><br />
* [[China - Law on Lawyers and Legal Representation]]<br />
* [[Constitution of the People's Republic of China]]<br />
* [[Rules Concerning Questions About Examining and Judging Evidence in Death Penalty Cases]]<br />
* [[Rules Concerning Questions About Exclusion of Illegal Evidence in Handling Criminal Cases]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL RESOURCES</h2><br />
* [[Chinese-English Legal Lexicon]]<br />
* [[Chinese Law Primer]]<br />
* [[Media:China Country Summary Card.pdf | China Country Summary Card]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">LEGAL TRAINING RESOURCE CENTER</h2><br />
* [http://elearning.ibj.org eLearning Courses for Chinese lawyers]<br />
|}<br />
<br />
<br />
<br />
==Background==<br />
<br />
Chinese civilization, dating back 3,500 years, has long been one of the world’s most innovative and influential societies. <ref> Background Notes available at www.state.gov/r/pa/ei/bgn</ref> The last Chinese dynasty, the Qing dynasty, was established in 1644 and was characterized by great expansionism, military prowess, and highly organized bureaucracy. However, the Qing dynasty was eventually forced to abdicate and a non-dynastic republic was erected in its place. This republic was plagued by a civil war fought between the Kuomintang (KMT) nationalists and the Chinese Communist Party (CCP), with ultimate victory being awarded to the CCP. In 1949, the CCP established the modern day People’s Republic of China led by Mao Zedong. China under Mao experienced extreme economic overhauls, as well as famine, poverty, and a severe cultural revolution. It wasn’t until Mao’s successor, Deng Xiaoping, reformed the communist agenda that China began to experience greater economic development and social improvements. Today, China is the world’s second largest economy after the United States and is expected to rise to first place within ten years. <ref>www.bbc.co.uk/news/business</ref> Despite these advancements though, China still commits human rights violations by way of repressing political freedoms. 91.5% of the Chinese population is of Han descent and 70% of the population speaks the Mandarin dialect. Although the Chinese government affirms “freedom of religion”, only five religions are officially sanctioned. Nevertheless, about 31.4% of Chinese are practitioners of some religion. <ref>Background Notes available at www.state.gov/r/pa/ei/bgn</ref><br />
<br />
==Type of system==<br />
<br />
The Chinese court system is based on a civil law system that was modeled off of Soviet legal principles. All Chinese laws are organized in a Criminal Code that contains all of the regulations and rules that are used to interpret criminal law. <br />
<br />
The court system in China has four levels. The courts, in descending order are: the Supreme People’s Court, the Higher People’s Courts, the Intermediate People’s Courts, and the Basic People’s Courts. The People’s Supreme Court is solely supervisory in function and oversees the lower courts. The Higher People’s Court conducts hearings for major civil and criminal cases that are located within a province, autonomous region, or municipality directly under the authority of the government. The Higher People’s Court is also allowed to retry cases that have been appealed by the Intermediate People’s Court. The Intermediate People’s Court tries cases that involve counterrevolutionary crimes, life imprisonments, the death penalty, and situations involving foreigners. <br />
<br />
In Chinese criminal cases, defendants do not have the right to a jury trial. In the situation of a homicide case, however, the verdict is delivered by a commission of the president, vice presidents, division chiefs, and other leading authorities of the court. This procedure is of particular irritation to lawyers who point out that those deciding the case are the people least familiar with the case. <br />
<br />
==Sources of defendants’ rights==<br />
<br />
The Chinese Constitution, which was amended in 2003, does not have legal authority in court decisions. Nevertheless, Article 37 of the Constitution states that the freedom of Chinese citizens is absolute, that no one may be arrested without the approval of a public security office, and that no one may be unlawfully detained. Since the Chinese Constitution is not self-executing though, these rights do not necessarily protect citizens. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 93 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
==Pre-trial phase==<br />
<br />
Once a criminal case has been filed against an individual, they are required to make a compelled appearance, or ju chuan. In this case, the defendant must report to the police station where they may be required to stay for up to 12 hours of questioning. During this time, the defendant does not have the right to legal counsel or communication with anyone. <ref>Criminal Procedure Law Articles 90-96</ref> Only after the questioning has been completed is the defendant informed of his right to legal counsel. <ref>Criminal Procedure Law Article 96</ref> Despite this, the lawyer is still not entitled to help the suspect prepare a defense case, but may only provide legal support and advice. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 101 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
All Chinese suspects must be interrogated within 12 hours of their arrest or detention. Before posing any questions to the suspect, the police are required to ask him whether or not he has committed a crime and the circumstances of the situation. <ref>Criminal Procedure Law Article 93</ref> Chinese law additionally prohibits the use of torture or other methods of obtaining evidence, but does not exempt evidence that has been illegally obtained. <ref>Criminal Procedure Law Article 43</ref> This means that confessions obtained under torture or duress can be used in court even though torture itself is technically not legal. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 101 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
==Court procedures==<br />
<br />
Chinese criminal procedure is divided into three stages, all of which are exclusively separate from each other. These stages are the investigation, the prosecution, and the trial. The investigation stage of criminal cases is conducted by the police, who at this time detain suspects, direct interrogations, gather evidence, and interview witnesses. During the investigation stage lawyers’ roles are severely limited, but Criminal Procedure Law states that lawyers are entitled to provide their clients with legal consultation, lodge petitions and complaints, and apply for bail on their clients’ behalf. <ref>Criminal Procedure Law Article 96</ref><br />
<br />
After the investigation stage has been completed, the prosecution procedure begins. At this time, the investigators submit to the Procuratorate the evidence that they have gathered in order for the Procuratorate to decide whether the circumstances of the crime are clear and the evidence reliable. <ref>Criminal Procedure Law Article 137</ref> During this stage, the defendant is entitled to legal counsel. However, few lawyers are assigned to the cases of indigent persons and often do not see the point in accessing their clients at such an early stage. <br />
<br />
Beginning with the 1996 reforms to the Chinese Criminal Procedure Law, Chinese trials have become increasingly adversarial in nature. These reforms guarantee greater rights to legal representation and include other measures intended to protect the right to a fair trial and to strengthen the role of lawyers. <ref>Criminal Procedure Law Articles 36, 96, 150, and 12</ref> Despite these improvements, Chinese lawyers still are not active players in trials. <br />
<br />
All cases must go to trial even if the defendant has plead guilty. Although Chinese law dictates that lawyers must be assigned cases at least ten days prior to the trial <ref>Criminal Procedure Law Article 151</ref>, they are often not appointed cases until two to three days before the trial begins. In addition, the court has the right to subpoena witnesses to be questioned and cross-examined by both the prosecution and the defense. In reality though, witness statements are merely read aloud in court, depriving either the prosecution or the defense of the opportunity of cross-examination. The Chinese standard of proof states that “the facts are clear and the evidence is reliable and sufficient”. <ref>Criminal Procedure Law Article 162</ref> Thus the accused person may be found innocent outright or by reason of insufficient evidence. <br />
<br />
Chinese defendants do not have the right to remain silent. At both the pre-trial and trial stage they are required to answer all questions posed to them. Under the Criminal Procedure Law, defendants who either confess to their crimes or truthfully report their actions will be rewarded and treated more leniently by the court. <ref>Criminal Procedure Law Article 67,68</ref> Thus, lawyers often ask their clients questions that are fairly prosecutorial in nature because they believe that if they confess to the crime they will receive a more favorable sentence. <br />
<br />
Chinese courts are not limited to making decisions based solely on the charges filed. For example, even if the defendant is accused only of intentional injury a court may find the defendant guilty of murder if it believes that the defendant had the explicit intent to kill. Thus, lawyers must be prepared for all possible outcomes in a criminal case. <br />
<br />
China guarantees the right to legal counsel, but most of the Chinese population is far too poor to hire sufficient legal aid. According to law though, only those who are juveniles, blind, deaf, and/or mute, and those facing the death penalty have the right to appointed counsel. Those who are financially unable to secure counsel are appointed representation based on a selective basis. Lawyers are rarely willing to represent defendants, however, as the pay is notoriously low, effective counsel is often difficult to achieve, criminal defense is regarded as risky activity, and criminal defense lawyers are not respected among within the legal community. <br />
<br />
The Chinese law only guarantees lawyers to limited rights of discovery at the prosecution stage. <ref>Criminal Procedure Law Article 36</ref> Discovery includes the right to judicial documents, but not the defendant’s statement, the statements of witnesses, and all other physical evidence. <br />
<br />
Lawyers often play a small role in Chinese trials. Lawyers’ roles in Chinese trials are usually limited to asking for more lenient sentences and suggesting mitigating factors to the court. Lawyers rarely dispute anything that the prosecutor alleges against the defendant or to actually defend the client. Finally, lawyers are rarely allowed by police to collect evidence or to conduct any other activities that would help him develop a solid defense case. <br />
<br />
Chinese judges often intentionally limit the role of the lawyer at trial. These judges see the lawyers as trivial and thus seek to make their work seem insignificant. For example, it is common for judges to refuse to allow a defense lawyer to present evidence or other opinions. They claim instead that that such information is inapplicable to the case at hand.<br />
<br />
==References==<br />
<br />
<references/><br />
<br />
''This page contains IBJ's English language materials for legal aid lawyers in China. For Chinese language materials, please go to [http://chinadefensewiki.ibj.org chinadefensewiki.ibj.org]''<br />
<br />
-----<br />
See [[Criminal Justice Systems Around the World]]<br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2><br />
<br />
*The PRC reports that it has a total prison population of 1,620,000, but the US State Department estimates the population to be at approximately 2,500,000 <br />
*For every 100,000 Chinese citizens, the PRC reports that there are 120 prisoners. However, the US State Department estimates that 186 is a more accurate number <br />
*China’s prison population consists of about 1.4% juvenile prisoners and approximately 100,000 pre-trial detainees (according to an estimate made by an East Asian criminal justice expert)<br />
*The Chinese Ministry of Justice reports that the PRC has 700 prison facilities. The US State Department additionally reports that China has 30 juvenile prisons and the Supreme People’s Procuratorate declares that China has 340 re-education-through-labor camps <br />
*Official prison capacity of re-education-through-labor camps is reported by the Supreme People’s Procuratorate to be 300,000. The occupancy level of these camps is approximated to be 87%<br />
<br />
<br />
{{Languages|China}}<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=Judgement_Notwithstanding_the_Verdict&diff=9075Judgement Notwithstanding the Verdict2011-02-16T14:54:09Z<p>Durankar: </p>
<hr />
<div>Judgement notwithstanding the Verdict, sometimes shortened to JNOV, refers to a motion filed after a jury verdict directing the judge to aquit the defendant. A judge may reverse a jury verdict if they believe that no reasonable jury could have reached the verdict. Typically, the burden is very high on the defendant to show that no reaosnable jury could have reached the verdict and judges rarely issue JNOVs in criminal cases. JNOV is most likely to occur if the prosecution enters no evidence on an essential element of the crime and the jury still returns a guilty verdict. The prosecutor may appeal the JNOV.<br />
<br />
A related concept in criminal law is the [[Writ of Error Coram Nobis|writ of error coram nobis]].<br />
<br />
The pricipal of [[Double Jeopardy|double jeopardy]] prevents judges from reversing "not guilty" verdicts by [[Jury|juries]]. <br />
<br />
-----<br />
See [[Appeals]]</div>Durankarhttps://defensewiki.ibj.org/index.php?title=Forfeiture&diff=9074Forfeiture2011-02-16T14:51:33Z<p>Durankar: </p>
<hr />
<div>Forfeiture is similar to [[Restitution|restitution]] or [[Fines|fines]] in that the defendant suffers money damages as a result of criminal conviction. However, forfeiture attaches to the object itself (money, boat, car, stereo) and is seen as a punishment for violation of the law. Forfeiture is a popular tool for federal prosecutors in RICO cases (Racketeer Influenced and Corruption Organizations Act) and the Continuing Criminal Enterprise Law.<ref>21 U.S.C. Section 881</ref><br />
Forfeitures that are disproportionate may be subject to challenge under the Excessive Fines Clause of the Eight Amendment to the United States Constitution. <ref> Austin v. United States 113 S.Ct. 2801 (1993)</ref><br />
<br />
-----See [[Sentencing]]<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Revocation_Hearing&diff=9073Revocation Hearing2011-02-16T14:49:34Z<p>Durankar: </p>
<hr />
<div>A revocation hearing may be requested by a probation officer who believes that an individual has violated the terms of their [[Probation|probation]]. Revocation hearings are typically conducted by the original sentencing court. If the court determines that the individual violated their probation, they may revoke the probation and re-instate the prison sentence.<br />
<br />
It is unclear whether a right to counsel exists at the probation revocation hearing although at least one court found that the right existed when sentencing and a probation revocation hearing were held at the same time. <ref> Mempa v. Rhay, 389 U.S. 128 (1967) </ref><br />
<br />
-----<br />
[[Sentencing]]<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Revocation_Hearing&diff=9072Revocation Hearing2011-02-16T14:49:12Z<p>Durankar: </p>
<hr />
<div>A revocation hearing may be requested by a probation officer who believes that an individual has violated the terms of their [[Probation|probation]]. Revocation hearings are typically conducted by the original sentencing court. If the court determines that the individual violated their probation, they may revoke the probation and re-instate the prison sentence.<br />
<br />
It is unclear whether a right to counsel exists at the probation revocation hearing although at least one court found that the right existed when sentencing and a probation revocation hearing were held at the same time. <ref> Mempa v. Rhay, 389 U.S. 128 (1967) </ref><br />
<br />
-----<br />
Sentencing<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Probation&diff=9071Probation2011-02-16T14:47:27Z<p>Durankar: </p>
<hr />
<div>Instead of serving a prison sentence, a defendant may be required to serve probation. During probation, sometimes known as a suspended sentence, the defendant may be required to comply with conditions of release. The defendant's probation is supervised by a probation officer whose job it is to set up regularly meetings with the defendant.<br />
<br />
Individuals on probation may be prohibited from carrying a weapon, leaving the jurisdiction or working around minors. Generally, an individual must give up certain rights -- such as the [[Search and Seizure|the protections against unreasonable searches and seizures]] -- in order to be released on probation.<br />
<br />
Searches must be reasonable <ref> Griffin v. Wisconsin, 483 U.S. 868 (1987), United States v. Consuelo-Gonzalez, 521 F.2d 259 (9th Cir. 1975).</ref><br />
<br />
If the defendant fails to comply with terms of probation the probation officer may request the sentencing court hold a [[Revocation Hearing|revocation hearing]]. If the court determines that the individual violated their probation, they may revoke the probation and re-instate the prison sentence.<br />
<br />
-----<br />
See [[Sentencing]]<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Bifurcated_Proceedings&diff=9070Bifurcated Proceedings2011-02-16T14:43:36Z<p>Durankar: </p>
<hr />
<div>In some criminal courts, courts may separate the trial into two separate parts which have separate factfinding missions. These are sometimes referred to as bifurcated proceedings. For instance, in the United States, death penalty cases are typically bifurcated proceedings. In the first proceeding, the factfinder determines whether the defendant is guilty of the crime while in the second proceeding, the factfinder determines whether to recommend capital punishment. Cases involving [[Habitual Offender Statutes| habitual offender statutes]] also sometimes have bifurcated proceedings in which the factfinder first determines guilt and later determines whether the defendant is a "habitual offender."<br />
<br />
In some jurisdictions the defense of [[Mental Incapacity|mental disease or defect]] will trigger bifurcated proceedings.<br />
<br />
----See [[Sentencing]]</div>Durankarhttps://defensewiki.ibj.org/index.php?title=In_Flagrante_Delicto&diff=9069In Flagrante Delicto2011-02-16T14:41:34Z<p>Durankar: </p>
<hr />
<div>''In flagrante delicto'' is a legal term often literally translated from Latin as "in a blazing offence". In the [[United States]] this would sometimes be translated as "caught red-handed".<br />
<br />
''In flagrante delicto'' has important meaning in certain criminal justice systems. For instance in [[France]] investigating police have more extensive powers of search and seizure of the crime was ''in flagrante delicto''. Similarly, the the [[Egypt|Egyptian Constitution]] provides that individual freedom is not subject to violation except in cases of ''flagrante delicto''.<Ref>Constitution of Egypt Arts. 165-168.</ref><br />
<br />
In Egypt:<br />
<blockquote>A crime is ''flagrante delicto'' durings its commission or just afterwards, when the victim chases the offender or the public raises a hu3e and cry immediately after it, or the offender is found nearby with weapons, implements, documents, or other items that suggest he committed or participated in the offense; or there are other signs or indications of his guilt.<ref>Egyptian Criminal Procedure Code Art. 30</ref></blockquote><br />
<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Writ_of_Error_Coram_Nobis&diff=9068Writ of Error Coram Nobis2011-02-16T14:40:27Z<p>Durankar: </p>
<hr />
<div>The writ of error ''coram nobis'' (translated from Latin as "the error before us") is writ issued by a court to reverse error in the interest of justice. At commmon law, the writ of error ''coram nobis'' was taken from the judgment of the King's Bench and asked that the court review its own judgment, alleging errors of fact. <br />
<br />
Although rarely granted, a writ of ''coram nobis'' is still available. <ref>Bonadonna v. Unknown Defendant, 181 Fed. Appx. 819 (C.A. 11 (Ga.) 2006)</ref><br />
<br />
One recent example of the writ of ''coram nobis'' occurred in 1984 when Judge Marilyn Hall Patel of the United States District Court for the Northern District of California granted the writ and revversed the conviction of Korematsu. She conclunded that the government knowingly introduced false evidence to the Supreme Court, materially effecting the Court's decision.<ref> Korematsu v. U.S., 584 F.Supp. 1406, 16 Fed. R. Evid. Serv. 1231 (N.D.Cal. Apr 19, 1984)</ref><br />
<br />
Patel stated:<br />
<blockquote>A writ of coram nobis is an appropriate remedy by which the court can correct errors in criminal convictions where other remedies are not available. Although Rule 60(b), Fed.R.Civ.P., abolishes various common law writs, including the writ of coram nobis in civil cases, the writ still obtains in criminal proceedings where other relief is wanting. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954)</blockquote><br />
<br />
The writ of ''coram nobis'' is similar to the [[Right to Habeas Corpus|writ of habeas corpus]], except that it is applicable even when the defendant is no longer in custody.<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Writ_of_Error_Coram_Nobis&diff=9067Writ of Error Coram Nobis2011-02-16T14:39:53Z<p>Durankar: </p>
<hr />
<div>The writ of error ''coram nobis'' (translated from Latin as "the error before us") is writ issued by a court to reverse error in the interest of justice. At commmon law, the writ of error ''coram nobis'' was taken from the judgment of the King's Bench and asked that the court review its own judgment, alleging errors of fact. <br />
<br />
Although rarely granted, a writ of ''coram nobis'' is still available. <ref>Bonadonna v. Unknown Defendant, 181 Fed. Appx. 819 (C.A. 11 (Ga.) 2006)</ref><br />
<br />
One recent example of the writ of ''coram nobis'' occurred in 1984 when Judge Marilyn Hall Patel of the United States District Court for the Northern District of California granted the writ and revversed the conviction of Korematsu. She conclunded that the government knowingly introduced false evidence to the Supreme Court, materially effecting the court's decision.<ref> Korematsu v. U.S., 584 F.Supp. 1406, 16 Fed. R. Evid. Serv. 1231 (N.D.Cal. Apr 19, 1984)</ref><br />
<br />
Patel stated:<br />
<blockquote>A writ of coram nobis is an appropriate remedy by which the court can correct errors in criminal convictions where other remedies are not available. Although Rule 60(b), Fed.R.Civ.P., abolishes various common law writs, including the writ of coram nobis in civil cases, the writ still obtains in criminal proceedings where other relief is wanting. United States v. Morgan, 346 U.S. 502, 74 S.Ct. 247, 98 L.Ed. 248 (1954)</blockquote><br />
<br />
The writ of ''coram nobis'' is similar to the [[Right to Habeas Corpus|writ of habeas corpus]], except that it is applicable even when the defendant is no longer in custody.<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=McNabb-Mallory_Rule&diff=9066McNabb-Mallory Rule2011-02-16T14:37:37Z<p>Durankar: </p>
<hr />
<div>The McNabb-Mallory<ref>McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608 (1943), Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356 (1957)</ref> referes to a line of cases in the United States Federal Courts which held that a confession obtained during federal custody is inadmissible if the defendant is not promptly produced in court after arrest. The rule was later incorporated into the Federal Rules of Criminal Procedure 5(A) which state that "A person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge, or before a state or local judicial officer as Rule 5(c) provides, unless a statute provides otherwise."<ref>Federal Rules of Criminal Procedure 5(A)</ref><br />
<br />
In Mallory v. United States<ref>Mallory v. United States, 354 U.S. 449, 77 S.Ct. 1356 (1957)</ref>, Justice Frankfurter explained the reasoning behind the McNabb-Mallory Rule:<br />
<br />
<Blockquote>The scheme for initiating a federal prosecution is plainly defined. The police may not arrest upon mere suspicion but only on "probable cause." The next step in the proceeding is to arraign the arrested person before a judicial officer as quickly as possible so that he may be advised of his rights and so that the issue of PROBABLE CAUSE may be promptly determined. The arrested person may, of course, be "booked"by the police. But he is not to be taken to police headquarters in order to carry out a process of inquiry that lends itself, even if not so designed, to eliciting damaging statements to support the arrest and ultimately his guilt.</blockquote><br />
<br />
In theory the McNabb-Mallory rule was repealed when Congress passed the Omnibus Crime Control and Safety Streets Act in 1968<ref>42 U.S.C.A. § 3701 et seq.)</ref>. Under this provision the McNabb-Mallory rule was replaced by the "Voluntariness" test in which the period of pre-trial detention became just one factor in determining whether a confession was voluntary. However, courts continue to apply the rule in federal courts.<br />
<br />
Critics have stated that the McNabb-Mallory rule created confusion in lower courts as they attempted to interpret the vague standard of unnecessary delay.<br />
<br />
----<br />
See [[Confessions]], [[Voluntariness Test]]<br />
==notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=In_Flagrante_Delicto&diff=9065In Flagrante Delicto2011-02-16T14:34:20Z<p>Durankar: </p>
<hr />
<div>''In flagrante delicto'' is a legal term often literally translated from Latin as "in a blazing offence". In the [[United States]] this would sometimes be translated as "caught red-handed".<br />
<br />
''In flagrante delicto'' has important meaning in certain criminal justice systems. For instance in [[France]] investigating police have more extensive powers of search and seizure of the crime was ''in flagrante delicto''. Similarly, the the [[Egypt|Egyption Constitution]] provides that individual freedom is not subject to violation except in cases of ''flagrante delicto''.<Ref>Constitution of Egypt Arts. 165-168.</ref><br />
<br />
In Egypt:<br />
<blockquote>A crime is ''flagrante delicto'' durings its commission or just afterwards, when the victim chases the offender or the public raises a hu3e and cry immediately after it, or the offender is found nearby with weapons, implements, documents, or other items that suggest he committed or participated in the offense; or there are other signs or indications of his guilt.<ref>Egyptian Criminal Procedure Code Art. 30</ref></blockquote><br />
<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Electronic_Surveillance&diff=9064Electronic Surveillance2011-02-16T14:24:25Z<p>Durankar: </p>
<hr />
<div>==Background==<br />
Electronic surveillance is increasingly fertile area of litigation as modern technology poses new problems and offers fresh investigatory tools for police and security forces around the globe. The most common method of electronic surveillance is wiretapping in which police or other state agents record telephone conversations of third parties. <br />
<br />
The [[United State Supreme Court]] in Katz v. United concluded that the Fourth Amendment of the [[United States Constitution]] proteted telephone calls made within phone booths.<ref>Katz v. United States, 389 U.S. 347 (1967)</ref> The decision rested on two principles:<br />
<br />
First, the Court concluded that "[t]he Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which [the defendant] justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." <br />
<br />
Furthermore, the Court introduced a new model for determining whether a right to privacy existed. In prior cases, the Fourth Amendment was thought to protect activities that occurred only in certain locations, such as private homes or automobiles. The Court determined that this location-based scheme was not always justified, concluding that the appropriate test was not the location. but whether the conversation was made with a "reasonable expectation of privacy." This expectation has two components. Under the subjective component the defendant must wish to make their conversation private. This desire for privacy must also be a reasonable one that society is willing to support. Under this new holding the Fourth Amendment was said to protect people, not places.<br />
<br />
==United States==<br />
Despite the Constitutional issues surrounding wiretapping, much of wiretapping law is regulated by the Federal Government under Title III of the Omnibus Crime Control Act and Safe Streets Act of 1968.<br />
<br />
----<br />
<br />
See [[Evidence]]<br />
<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Opening_the_Door_to_Excluded_Evidence&diff=9060Opening the Door to Excluded Evidence2011-02-16T13:56:28Z<p>Durankar: </p>
<hr />
<div>In the [[United States]], a criminal defense attorney may prevent certain evidence from being admitted to court if it is prejudicial or in any other way inadmissible. However, the defense attorney must take great care to make sure the evidence remains inadmissible. A common error is for the criminal defense attorney to [[Opening the Door to Excluded Evidence|open the door]] to the readmission of [[Evidence|evidence]] in one of several ways. The most common way supressed statements come into evidence is through the prosecution's impeachment of a defendant.<br />
<br />
In Wade v. United States the court explained how a defendant could open the door to otherwise inadmissible evidence:<br />
<br />
<blockquote>It is one thing to say that the Government cannot make an affirmative use of evidence unlawfully obtained. It is quite another to say that the defendant can turn the illegal method by which evidence in the Government's possession was obtained to his own advantage, and provide himself with a shield against contradiction of his untruths. Such an extension of the Weeks doctrine would be a perversion of the Fourth Amendment.<br />
[T]here is hardly justification for letting the defendant affirmatively resort to perjurious testimony in reliance on the Government's disability to challenge his credibility.Wade v. United States, 347 U.S. 62, 65 (1954)</ref></blockquote><br />
<br />
This rationale was affirmed in Harris v. New York<br />
<blockquote>Every criminal defendant is privileged to testify in his own defense, or to refuse to do so. But that privilege cannot be construed to include the right to commit perjury. . . . Having voluntarily taken the stand, petitioner was under an obligation to speak truthfully and accurately, and the prosecution here did no more than utilize the traditional truth-testing devices of the adversary process. . . . Had inconsistent statements been made by the accused to some third person, it could hardly be contended that the conflict could not be laid before the jury by way of cross-examination and impeachment.<Ref> Harris v. New YOrk, 401 U.S. 222 (1975)</ref></blockquote><br />
<br />
<blockquote>The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of confrontation with prior inconsistent utterances. We hold, therefore, that petitioner's credibility was appropriately impeached by use of his earlier conflicting statements.</blockquote><br />
<br />
Traditionally the rule has been restricted to impeachment of defendants. As a result, the [[Exclusionary Rule|excluded evidence]] cannot be used against other witnesses. <br />
<br />
<br />
----<br />
[[Evidence]]<br />
<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Voluntariness_Test&diff=9059Voluntariness Test2011-02-16T13:52:46Z<p>Durankar: </p>
<hr />
<div>Traditionally [[Confessions|confessions]] have been considered the gold standard of [[Evidence|evidence]] creating an almost irrebuttable proof of the defendant's guilt.This began to change in the 1800's when the U.S. Supreme Court first began to question strong-handed interrogation tactics: <br />
<br />
<blockquote>A confession freely and voluntarily made is evidence of the most satisfactory character. But the presumption upon which weight is given; to such evidence -- namely that an innocent man will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made -- either in consequence of inducements of a temporal nature held out by one in authority, touching the charge preferred, or because of a threat or promise made by, or in the presence of, such person, in reference to such charge.<ref> Hopt. v. Utah, 120 U.S. 430 (1887)</ref></blockquote><br />
<br />
It wasn't until 1936 that the Supreme Court determined that involuntary confessions were abhorrent to the Due Process Clause of the 14th Amendmement of the U.S. Constitution:<ref>Brown v. Mississippi, 297 U.S. 278 (1936)</ref>. <br />
<br />
<blockquote>Coercing the supposed state's criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief inequity, the crowning infamy, of the Star Chamber and the Inquisition, and other similar institutions. The constitution recognized the evils that lay behind these practices, and prohibited them in this country. . . . The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.<Ref>Brown v. Mississippi, 297 U.S. 278 (1936) quoting Fisher v. State, 145 Miss. 116, 134 (1926)</ref></blockquote><br />
<br />
Confessions which are involuntary may be [[Exclusionary Rule|excluded]] from evidence unless the defendant [[Opening the Door to Excluded Evidence|opens the door]] to the admission of the confession. Recent studies have demonstrated that [[False Confessions / Admissions| false confessions]] are a real and ever present threat to fair adjudication of criminal cases.<br />
<br />
The [[Exclusionary Rule|exclusion]] of involuntary evidence is premised on three principals. First, exclusion of involuntary confessions tends to deter police misconduct. Second, a confession should be freely made by a rational person. Finally, confessions obtained with duress are inherently unreliable. <br />
<br />
Voluntariness is determined by a factfinder (judge or jury) by examining and taking into consideration the totality of the circumstances.<ref>Haynes v. Washington, 373 U.S. 503 (1963)</ref> <br />
<br />
Factors may include objective factors such as:<br />
*Duration of the interrogation<br />
*Length of pre-trial detention<br />
*Place and conditions of interrogation<br />
*Psychological threats<br />
*Police conduct during interrogation<br />
*Whether force or threat of force was used during interrogation.<br />
Similarly, the factfinder must examine the defendant's subjective state of mind to determine whether given all those factors, the confessions was, in fact, involuntary. In doing so, they should consider the defendant's physical and mental characteristics: age, race, education, history and psychological state of mind during the interrogation.<br />
<br />
Deception alone is usually not enough to warrant exclusion of a confession as involuntary. In Frazier v. Cupp <ref> Frazier v. Cupp, <br />
394 U.S. 731 (1969)</ref>, the U.S. Supreme Court upheld the admissibility of a confession when the police falsely told the defendant that his cousin had confessed to the crime. The Court held that deception was just one factor in the voluntariness test and that deception in and of itself was not dispositive.<br />
<br />
In certain circumstances, police misconduct may be so egregious that the confession evidence should be excluded without regard for how that conduct affected the defendant. <br />
----<br />
See [[Confessions]], [[McNabb-Mallory Rule]]<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Voluntariness_Test&diff=9058Voluntariness Test2011-02-16T13:51:02Z<p>Durankar: </p>
<hr />
<div>Traditionally [[Confessions|confessions]] have been considered the gold standard of [[Evidence|evidence]] creating an almost irrebuttable proof of the defendant's guilt.This began to change in the 1800's when the U.S. Supreme Court first began to question strong-handed interrogation tactics: <br />
<br />
<blockquote>A confession freely and voluntarily made is evidence of the most satisfactory character. But the presumption upon which weight is given; to such evidence -- namely that an innocent man will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made -- either in consequence of inducements of a temporal nature held out by one in authority, touching the charge preferred, or because of a threat or promise made by, or in the presence of, such person, in reference to such charge.<ref> Hopt. v. Utah, 120 U.S. 430 (1887)</ref></blockquote><br />
<br />
It wasn't until 1936 that the Supreme Court determined that involuntary confessions were abhorrent to the Due Process Clause of the 14th Amendmement of the U.S. Constitution:<ref>Brown v. Mississippi, 297 U.S. 278 (1936)</ref>. <br />
<br />
<blockquote>Coercing the supposed state's criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief inequity, the crowning infamy, of the Star Chamber and the Inquisition, and other similar institutions. The constitution recognized the evils that lay behind these practices, and prohibited them in this country. . . . The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.<Ref>Brown v. Mississippi, 297 U.S. 278 (1936) quoting Fisher v. State, 145 Miss. 116, 134 (1926)</ref></blockquote><br />
<br />
Confessions which are involuntary may be [[Exclusionary Rule|excluded]] from evidence unless the defendant [[Opening the Door to Excluded Evidence|opens the door]] to the admission of the confession. Recent studies have demonstrated that [[False Confessions / Admissions| false confessions]] are a real and ever present threat to fair adjudication of criminal cases.<br />
<br />
The [[Exclusionary Rule|exclusion]] of involuntary evidence is premised on three principals. First, exclusion of involuntary confessions tends to deter police misconduct. Second, a confession should be freely made by a rational person. Finally, confessions obtained with duress are inherently unreliable. <br />
<br />
Voluntariness is determined by a factfinder (judge or jury) by examining and taking into consideration the totality of the circumstances.<ref>Haynes v. Washington, 373 U.S. 503 (1963)</ref> <br />
<br />
Factors may include objective factors such as:<br />
*Duration of the interrogation<br />
*Length of pre-trial detention<br />
*Place and conditions of interrogation<br />
*Psychological threats<br />
*Police conduct during interrogation<br />
*Whether force or threat of force was used during interrogation.<br />
Similarly, the factfinder must examine the defendant's subjective state of mind to determine whether given all those factors, the confessions was, in fact, involuntary. In doing so, they should consider the defendant's physical and mental characteristics: age, race, education, history and psychological state of mind during the interrogation.<br />
<br />
Deception alone is usually not enough to warrant exclusion of a confession as involuntary. In Frazier v. Cupp <ref> Frazier v. Cupp, <br />
394 U.S. 731 (1969)</ref>, the U.S. Supreme Court upheld the admissibility of a confession when the police falsely told the defendant that his cousin had confessed to the crime. The court held that deception was just one factor in the voluntariness test and that deception in and of itself was not dispositive.<br />
<br />
In certain circumstances, police misconduct may be so egregious that the confession evidence should be excluded without regard for how that conduct the defendant. <br />
----<br />
See [[Confessions]], [[McNabb-Mallory Rule]]<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Voluntariness_Test&diff=9057Voluntariness Test2011-02-16T13:50:28Z<p>Durankar: </p>
<hr />
<div>Traditionally [[Confessions|confessions]] have been considered the gold standard of [[Evidence|evidence]] creating an almost irrebuttable proof of the defendant's guilt.This began to change in the 1800's when the U.S. Supreme Court first began to question strong-handed interrogation tactics: <br />
<br />
<blockquote>A confession freely and voluntarily made is evidence of the most satisfactory character. But the presumption upon which weight is given; to such evidence -- namely that an innocent man will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made -- either in consequence of inducements of a temporal nature held out by one in authority, touching the charge preferred, or because of a threat or promise made by, or in the presence of, such person, in reference to such charge.<ref> Hopt. v. Utah, 120 U.S. 430 (1887)</ref></blockquote><br />
<br />
It wasn't until 1936 that the Supreme Court determined that involuntary confessions were abhorrent to the Due Process Clause of the 14th Amendmement of the U.S. Constitution:<ref>Brown v. Mississippi, 297 U.S. 278 (1936)</ref>. <br />
<br />
<blockquote>Coercing the supposed state's criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief inequity, the crowning infamy, of the Star Chamber and the Inquisition, and other similar institutions. The constitution recognized the evils that lay behind these practices, and prohibited them in this country. . . . The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.<Ref>Brown v. Mississippi, 297 U.S. 278 (1936) quoting Fisher v. State, 145 Miss. 116, 134 (1926)</ref></blockquote><br />
<br />
Confessions which are involuntary may be [[Exclusionary Rule|excluded]] from evidence unless the defendant [[Opening the Door to Excluded Evidence|opens the door]] to the admission of the confession. Recent studies have demonstrated that [[False Confessions / Admissions| false confessions]] are a real and ever present threat to fair adjudication of criminal cases.<br />
<br />
The [[Exclusionary Rule|exclusion]] of involuntary evidence is premised on three principals. First, exclusion of involuntary confessions tends to deter police misconduct. Second, a confession should be freely made by a rational person. Finally, confessions obtained with duress are inherently unreliable. <br />
<br />
Voluntariness is determined by a factfinder (judge or jury) by examining and taking into consideration the totality of the circumstances.<ref>Haynes v. Washington, 373 U.S. 503 (1963)</ref> <br />
<br />
Factors may include objective factors such as:<br />
*Duration of the interrogation<br />
*Length of pre-trial detention<br />
*Place and conditions of interrogation<br />
*Psychological threats<br />
*Police conduct during interrogation<br />
*Whether force or threat of force was used during interrogation<br />
Similarly, the factfinder must examine the defendant's subjective state of mind to determine whether given all those factors, the confessions was, in fact, involuntary. In doing so, they should consider the defendant's physical and mental characteristics: age, race, education, history and psychological state of mind during the interrogation.<br />
<br />
Deception alone is usually not enough to warrant exclusion of a confession as involuntary. In Frazier v. Cupp <ref> Frazier v. Cupp, <br />
394 U.S. 731 (1969)</ref>, the U.S. Supreme Court upheld the admissibility of a confession when the police falsely told the defendant that his cousin had confessed to the crime. The court held that deception was just one factor in the voluntariness test and that deception in and of itself was not dispositive.<br />
<br />
In certain circumstances, police misconduct may be so egregious that the confession evidence should be excluded without regard for how that conduct the defendant. <br />
----<br />
See [[Confessions]], [[McNabb-Mallory Rule]]<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Voluntariness_Test&diff=9056Voluntariness Test2011-02-16T13:49:52Z<p>Durankar: </p>
<hr />
<div>Traditionally [[Confessions|confessions]] have been considered the gold standard of [[Evidence|evidence]] creating an almost irrebuttable proof of the defendant's guilt.This began to change in the 1800's when the U.S. Supreme Court first began to question strong-handed interrogation tactics: <br />
<br />
<blockquote>A confession freely and voluntarily made is evidence of the most satisfactory character. But the presumption upon which weight is given; to such evidence -- namely that an innocent man will not imperil his safety or prejudice his interests by an untrue statement, ceases when the confession appears to have been made -- either in consequence of inducements of a temporal nature held out by one in authority, touching the charge preferred, or because of a threat or promise made by, or in the presence of, such person, in reference to such charge.<ref> Hopt. v. Utah, 120 U.S. 430 (1887)</ref></blockquote><br />
<br />
It wasn't until 1936 that the Supreme Court determined that involuntary confessions were abhorrent to the Due Process Clause of the 14th Amendmement of the U.S. Constitution:<ref>Brown v. Mississippi, 297 U.S. 278 (1936)</ref>. <br />
<br />
<blockquote>Coercing the supposed state's criminals into confessions and using such confessions so coerced from them against them in trials has been the curse of all countries. It was the chief inequity, the crowning infamy, of the Star Chamber and the Inquisition, and other similar institutions. The constitution recognized the evils that lay behind these practices, and prohibited them in this country. . . . The duty of maintaining constitutional rights of a person on trial for his life rises above mere rules of procedure, and wherever the court is clearly satisfied that such violations exist, it will refuse to sanction such violations and will apply the corrective.<Ref>Brown v. Mississippi, 297 U.S. 278 (1936) quoting Fisher v. State, 145 Miss. 116, 134 (1926)</ref></blockquote><br />
<br />
Confessions which are involuntary may be [[Exclusionary Rule|excluded]] from evidence unless the defendant [[Opening the Door to Excluded Evidence|opens the door]] to the admission of the confession. Recent studies have demonstrated that [[False Confessions / Admissions| false confessions]] are a real and ever present threat to fair adjudication of criminal cases.<br />
<br />
The [[Exclusionary Rule|exclusion]] of involuntary evidence is premised on three principals. First, exclusion of involuntary confessions tends to deter police misconduct. Second, a confession should be freely made by a rational person. Finally, confessions obtained with duress are inherently unreliable. <br />
<br />
Voluntariness is determined by a factfinder (judge or jury) by examining and taking into consideration the totality of the circumstances.<ref>Haynes v. Washington, 373 U.S. 503 (1963)</ref>. <br />
<br />
Factors may include objective factors such as:<br />
*Duration of the interrogation<br />
*Length of pre-trial detention<br />
*Place and conditions of interrogation<br />
*Psychological threats<br />
*Police conduct during interrogation<br />
*Whether force or threat of force was used during interrogation<br />
Similarly, the factfinder must examine the defendant's subjective state of mind to determine whether given all those factors, the confessions was, in fact, involuntary. In doing so, they should consider the defendant's physical and mental characteristics: age, race, education, history and psychological state of mind during the interrogation.<br />
<br />
Deception alone is usually not enough to warrant exclusion of a confession as involuntary. In Frazier v. Cupp <ref> Frazier v. Cupp, <br />
394 U.S. 731 (1969)</ref>, the U.S. Supreme Court upheld the admissibility of a confession when the police falsely told the defendant that his cousin had confessed to the crime. The court held that deception was just one factor in the voluntariness test and that deception in and of itself was not dispositive.<br />
<br />
In certain circumstances, police misconduct may be so egregious that the confession evidence should be excluded without regard for how that conduct the defendant. <br />
----<br />
See [[Confessions]], [[McNabb-Mallory Rule]]<br />
==Notes==<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Right_to_Counsel&diff=9040Right to Counsel2011-02-16T09:47:18Z<p>Durankar: /* Examples of Right to Counsel */</p>
<hr />
<div>== Background ==<br />
<br />
One of the fundamental rights in the legal system is the right to counsel. This right generally provides that anyone who is accused of a crime has the right to receive legal aid from an attorney. The right to counsel may be found in various international, regional, as well as domestic legal authorities.<br />
<br />
== International Sources ==<br />
<br />
===International Covenant on Civil and Political Rights===<br />
<br />
*The International Covenant on Civil and Political Rights (ICCPR) was adopted by the United Nations in 1966. The rights enshrined in the treaty are basic human rights that form a foundation for freedom, justice, and peace in the world.<ref> Ronald B. Hurdle & Walter J. Champion Jr., The Life and Times of Napoleon Beazley: The Effective (If Any) of the International Covenant on Civil and Political Rights on Texas' 17 & Up Execution Standard, 28 T. Marshall L. Rev. 1 (2002). </ref> The rights in the ICCPR are “designed primarily to protect individuals against arbitrary government action and to ensure individuals the opportunity to participate in government and other common activities.”<ref> Ronald B. Hurdle & Walter J. Champion Jr., The Life and Times of Napoleon Beazley: The Effective (If Any) of the International Covenant on Civil and Political Rights on Texas' 17 & Up Execution Standard, 28 T. Marshall L. Rev. 1 (2002). </ref> Included in the ICCPR is the right to legal counsel: article 14(3).<br />
<br />
'''Article 14, Section 3 -''' <br />
* Under Article 14, section 3, the ICCPR guarantees the following rights to the accused in a criminal trial: <br />
** To be promptly informed of the charge against him in a language that he understands;<br />
** To communicate with a lawyer of his own choosing and have enough time to prepare for his defence;<br />
** To be tried promptly;<br />
** To defend himself in court or have a lawyer defend him in court; to be informed of his right to legal counsel if he does not know of that right; and to have a lawyer assigned to his case if the accused cannot otherwise afford a lawyer;<br />
** To question opposing witnesses and to call witnesses for his side of the case;<br />
** To have the assistance of an interpreter if he cannot understand or speak the language used in court;<br />
** To refrain from making any self-incriminating statements.<ref> http://www2.ohchr.org/english/law/ccpr.htm </ref><br />
<br />
== Regional Instruments ==<br />
<br />
===European Convention on Human Rights===<br />
<br />
'''Article 6 (3) (c)''' - <br />
* Anyone who has been accused of a crime has the right to defend himself, or to obtain a lawyer of his own choosing to defend the him in court. If the accused does not have enough money to pay for legal assistance, the State should provide this service in the interests of justice.<ref> http://conventions.coe.int/treaty/en/Treaties/Html/005.htm </ref><br />
<br />
===American Convention on Human Rights===<br />
<br />
'''Article 8 (2) (d)''' -<br />
* Every person accused of a crime is presumed innocent until proven guilty. During the trial, the accused has the right to either defend himself or have a lawyer of his own choosing defend him in court. If the accused chooses to have a lawyer, he has the right to communicate freely and privately with his lawyer.<ref> http://www.oas.org/juridico/english/treaties/b-32.html </ref><br />
<br />
== Examples of Right to Counsel ==<br />
<br />
===Australia===<br />
<br />
* Australia does not have a common law right to publicly provided legal representation.<br />
<br />
* Dietrich v. The Queen (1992) 177 CLR 292<br />
** (5:2) where an accused charged with a serious offence is (through no fault of their own) unable to obtain legal representation, any application for an adjournment or stay should be granted (unless there are exceptional circumstances) and the trial delayed until legal representation is available (per Mason CJ, Deane, Toohey, Gaudron & McHugh JJ).<br />
** (5:2) if in such circumstances an application for an adjournment or stay is refused, and as a result the trial is an unfair one, the conviction must be overturned (per Mason CJ, Deane, Toohey, Gaudron & McHugh JJ).<br />
<br />
* Essentially Dietrich said, even though there is no right to counsel, in most circumstances the judge should stay the proceedings or grant an adjournment when the defendant does not have representation. <br />
===Cambodia===<br />
<br />
* Cambodia is a signatory of the International Covenant on Civil and Political Rights (ICCPR) and it incorporated the right to counsel in Article 38 of its Constitution, which states that “every citizen shall enjoy the right to defense through judicial recourse.” <ref> CJR (Center for Justice and Reconciliation) Law Review, March 2010. </ref><br />
<br />
* The right to counsel in Cambodia may also be found in Article 98 of the Cambodian Code of Criminal Procedure, which provides that a detainee may speak to a lawyer for 30 minutes only after having been detained for 24 hours. Article 143 of the Code also remarks that “when a charged person appears for the first time, the investigating judge should inform him of his right to choose a lawyer or to have a lawyer appointed according to the Law on the Bar.” Article 145 of the Code permits the defense counsel to “review, study, and prepare a legal defense based on the facts prior to an investigation by the Investigating Judge.” <ref> CJR (Center for Justice and Reconciliation) Law Review, March 2010. </ref> However, it should be noted that there is no provision in the Code that permits the accused to have a right to counsel during police interrogations.<br />
<br />
* Furthermore, the court only has the obligation to assign counsel to juvenile and felony cases. <ref> Cambodian Defenders Project- Universal Periodic Report (2009). See also CJR (Center for Justice and Reconciliation) Law Review, March 2010. </ref> However, it often does not even have adequate funds to pay for the services of an attorney. Therefore, much of the legal aid that indigents receive is from nongovernmental organizations or bar associations rather than the government itself. For example, Article 29 of the Bar Association of Cambodia states: “The bar fund is derived from dues paid by all members and other contributions. A special account shall be established in this fund for providing income to lawyers who defend poor people.” <ref> http://www.ahrchk.net/pub/mainfile.php/cambodia_judiciary/109/ </ref><br />
<br />
===Canada===<br />
<br />
* One of the main rights instruments in Canada is the Charter of Rights and Freedoms which is part of the Canadian Constitution. <ref> Dorothy Nichole Giobbe, Legal Aid and the Right to Counsel under Canada’s Charter of Rights and Freedoms, 25 Brook. J. Int'l L. 205 (1999). </ref> Though the Charter does not explicitly provide that the accused has a right to counsel, section 10(b) states that “everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” <ref> Dorothy Nichole Giobbe, Legal Aid and the Right to Counsel under Canada’s Charter of Rights and Freedoms, 25 Brook. J. Int'l L. 205 (1999). </ref><br />
<br />
* The Supreme Court of Canada affirmed that section 10(b) stood for a right to counsel in the landmark 1990 case of Brydges. In that case, the court noted that “the right to retain and instruct counsel, in modern Canadian society, has come to mean more than the right to retain a lawyer privately. It now also means the right to have access to counsel free of charge where the accused meets certain financial criteria set up by the provincial legal aid plan, and the right to have access to immediate, although temporary, advice from duty counsel irrespective of financial status.” <ref> Canadian Department of Justice, http://www.justice.gc.ca/eng/pi/rs/rep-rap/2003/rr03_la4-rr03_aj4/p3.html. </ref> Therefore, anyone detained by the police has a right to be informed about the availability of legal aid, regardless of financial background. <ref> Canadian Department of Justice, http://www.justice.gc.ca/eng/pi/rs/rep-rap/2003/rr03_la4-rr03_aj4/p3.html. </ref> <br />
<br />
* The Court also noted that “one of the important reasons for retaining legal advice without delay upon being detained is linked to the protection of the right against self-incrimination. This is precisely the reason that there is a duty on the police to cease question the detainee until he has had a reasonable opportunity to retain and instruct counsel.” <ref> Canadian Department of Justice, http://www.justice.gc.ca/eng/pi/rs/rep-rap/2003/rr03_la4-rr03_aj4/p3.html. </ref> In Canada, a trial court has the power to exclude evidence obtained in violation of the accused’s right to counsel. <ref> http://www.justice.gc.ca/eng/pi/rs/rep-rap/2003/rr03_la4-rr03_aj4/p4.html </ref><br />
<br />
* In the 2009 case of R v. Grant, the Canadian Supreme Court further clarified that the right to counsel arises “immediately upon detention, even if that detention is investigative.” <ref> Alberta Solicitor General and Public Safety website, https://www.solgps.alberta.ca/programs_and_services/public_security/peace_officers/Publications/Prosecution%20Service%20Advisory%20-%20Detention%20and%20the%20Right%20to%20Counsel.pdf </ref> The Supreme Court, however, made it clear that this right does not arise in every interaction between an individual and the police. <ref> Alberta Solicitor General and Public Safety website, https://www.solgps.alberta.ca/programs_and_services/public_security/peace_officers/Publications/Prosecution%20Service%20Advisory%20-%20Detention%20and%20the%20Right%20to%20Counsel.pdf </ref> It only applies to situations that involve significant physical or psychological restraint of an individual’s liberty. <ref> Alberta Solicitor General and Public Safety website, https://www.solgps.alberta.ca/programs_and_services/public_security/peace_officers/Publications/Prosecution%20Service%20Advisory%20-%20Detention%20and%20the%20Right%20to%20Counsel.pdf </ref><br />
<br />
===China===<br />
<br />
* Article 125 of the Chinese Constitution states that “the accused has a right to defense” in a criminal prosecution. Furthermore, Article 11 of the Criminal Procedure Law (CPL) states that a “defendant shall have the right to defense, and the People's Courts shall have the duty to guarantee his defense.” <ref> Translation of Criminal Procedure Law available at http://www.cecc.gov/pages/newLaws/criminalProcedureENG.php. </ref> Article 33 of the CPL enshrines the right to pre-trial access to counsel. <br />
<br />
* Chinese law, however, only requires the appointment of counsel to “criminal suspects who are juveniles, deaf, mute, or blind or those who are charged with death penalty offenses.” <ref> Realizing Justice: The Development of Fair Trial Rights in China, 2 Chin. L.P.R. 108 (2007). </ref> In all other cases, a court may, but is not required to, appoint counsel for the accused, even if the accused is too poor to afford counsel on his own behalf. <br />
<br />
* This concept is outlined in Article 34 of the CPL: “If a case is to be brought in court by a public prosecutor and the defendant involved has not entrusted anyone to be his defender due to financial difficulties or other reasons, the People's Court may designate a lawyer that is obligated to provide legal aid to serve as a defender. If the defendant is blind, deaf or mute, or if he is a minor, and thus has not entrusted anyone to be his defender, the People's Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender. If there is the possibility that the defendant may be sentenced to death and yet he has not entrusted anyone to be his defender, the People's Court shall designate a lawyer that is obligated to provide legal aid to serve as a defender.”<br />
<br />
* In 1996, China established the National Legal Aid Center at the Ministry of Justice to promote the development of legal aid organizations throughout the country. <ref> Realizing Justice: The Development of Fair Trial Rights in China, 2 Chin. L.P.R. 108 (2007). </ref> The Chinese government has the burden of providing legal aid lawyers, but is often aided by nongovernmental organizations and universities. <br />
<br />
* In China, indigent defendants must rely on legal aid centers or private lawyers who volunteer their services. Though there has been progress made by this recognition of the need for legal aid, many indigent defendants still do not have access to an attorney. Legal aid centers often do not have enough lawyers to handle all the numerous cases that need help. Furthermore, even though China now allows counsel to have pre-trial access to defendants, Chinese law requires that the defendants ask for the legal aid. <ref> Realizing Justice: The Development of Fair Trial Rights in China, 2 Chin. L.P.R. 108 (2007). </ref> Unfortunately, due to poor knowledge about their procedural rights, many defendants do not ask for this aid.<br />
<br />
===India===<br />
<br />
* Article 22 of the Indian Constitution outlines the right to counsel. The article reads, “no person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest nor shall he be denied the right to consult, and to be defended by, a legal practitioner of his choice.” <ref> Indian Constitution, article 22(1) available at http://www.constitution.org/cons/india/p03022.html. </ref><br />
<br />
* The Law Commission of India, an executive body established by the Indian government, highlighted this principle in its 48th report, while discussing safeguards against overuse of state power in criminal proceedings. The Commission stated that “the accused must be informed of his right to consult a legal practitioner of his choice, and the accused must also be given an opportunity to consult such a legal practitioner before making the confession.” <ref> Law Commission of India, 48th Report (Some Questions Under the Code of Criminal Procedure), July 1972, para. 17 available at http://lawcommissionofindia.nic.in/1-50/Report48.pdf </ref><br />
<br />
* The report further remarked that the Commission is “of the view that defence of the indigent accused by a pleader assigned by the State should be made available to every person accused of an offense (i.e. in all criminal trials) so that mere poverty may not stand in the way of adequate defence in a proceeding which may result in the deprivation of liberty or property or loss of reputation.” <ref> Law Commission of India, 48th Report (Some Questions Under the Code of Criminal Procedure), July 1972, para. 17 available at http://lawcommissionofindia.nic.in/1-50/Report48.pdf </ref> The Commission thus recognized the right to counsel as a “basic ingredient” of a criminal trial, and commented that the law should “go as far as possible” in assuring that this ingredient is not absent. <ref> Law Commission of India, 48th Report (Some Questions Under the Code of Criminal Procedure), July 1972, para. 17 available at http://lawcommissionofindia.nic.in/1-50/Report48.pdf </ref><br />
<br />
* This principle has also been affirmed by the Indian Supreme Court in the 1974 case of R.M. Wasawa. In R.M. Wasawa, the Court proclaimed that “[i]ndigence should never be a ground for denying fair trial or equal justice. Particular attention should be paid to appoint competent advocates, equal to handling complex cases, not patronising gestures to raw entrants at the Bar. Sufficient time and complete papers should also be made available so that the advocate chosen may serve the cause of justice.” <ref> Ranchod Mathur Wasawa v. State of Gujarat, (1974) 3 SCC 581 available at http://indiankanoon.org/doc/1311363/ </ref><br />
<br />
* The Supreme Court proclaimed that a Judge has a duty to inform an indigent accused that he has the right to counsel. <ref> Riddhi Dasgupta, Changing Face of the Law: A Global Perspective p 591 (2006). </ref> In Ranjan Dwivedi v. Union of India, the Court also stated that there is “no doubt” that the accused is entitled to financial assistance to engage a counsel of the accused’s choice. <ref> 1983) 3 SCC 307 available at http://www.courtjudgments.org/ranjan-dwivedi-vs-union-of-india/. </ref> It also remarked that the government should implement legislation that has appropriate schemes for free legal aid.<br />
<br />
<br />
===Japan===<br />
<br />
* The Japanese Constitution guarantees the right to counsel in Articles 34 and 37. <ref> Michigan v. Harvey, 494 U.S. 344, 350 (1990); see also Paternalism versus Pugnacity: The Right to Counsel in Japan and the United States, 72 Ind. L.J. 291 (1996). </ref> Article 34 guarantees the right to counsel for a defendant under arrest or in detention, while Article 37 addresses the right to counsel regardless of the defendant’s financial background. Article 36 of the Code of criminal Procedure reinforces this statement saying that “where the accused is unable to select a defense counsel for poverty or some other reason, the court shall assign a defense counsel on behalf of the accused upon his request. However, this shall not apply where defense counsel has been selected for him by some person other than the accused.” While it seems that defendants enjoy quite extensively the right to counsel, the reality is different. This is because in general Japanese courts have interpreted the right to counsel very narrowly. Courts have held that “the right to court appointed counsel does not attach until after indictment.” <ref> Frank Bennett Jr. Pretrial Detention in Japan: Overview and Introductory Note, 23 Law in Japan 67 (1990). See also Michigan v. Harvey, 494 U.S. 344, 350 (1990); see also Paternalism versus Pugnacity: The Right to Counsel in Japan and the United States, 72 Ind. L.J. 291 (1996) </ref><br />
<br />
* Moreover, Article 34 of the Japanese Constitution must be read in conjunction with Article 39 of the Japanese Code of Criminal Procedure. Under Article 34, the right to counsel only attaches during formal arrest. The concept of “formal arrest” is contrasted with “voluntary police custody,” in which police may question suspects without formally placing them under arrest, thus de facto impeding them to have a counsel who assist them. <ref> Michigan v. Harvey, 494 U.S. 344, 350 (1990); see also Paternalism versus Pugnacity: The Right to Counsel in Japan and the United States, 72 Ind. L.J. 291 (1996). </ref><br />
<br />
<br />
===Kenya===<br />
<br />
In view of the ever present danger of adverse consequences in cases where a defendant is unrepresented, Article 50(2) of the Constitution guarantees the right to counsel. The right to counsel includes: the right of an accused to be represented by an advocate of his choice; the right of the accused to be informed promptly of his right to counsel; the right to have counsel assigned by the State at the State’s expense. Prohibitive costs of using the system and lack of affordable legal representation are to of the main impediments to accessing justice. Article 48 of the Constitution provides that where payments of fees is required, the fees shall be reasonable so as access to justice is not impeded.<br />
<br />
Even though, Article 48 of the Constitution obliges the State to ensure access to justice for all persons, under Article 50(2)(h), the right to counsel at the expense of the State is only available if substantial injustice would otherwise occur. A determination on what would constitute substantial injustice will be decided by courts. <br />
<br />
An arrestee’s pretrial right to counsel is to be informed promptly of his right to counsel, and be afforded the opportunity to communicate with an advocate or other persons whose assistance is necessary (Article 49 (c). <br />
<br />
Constitution<br />
<br />
* 77(2) Every person who is charged with a criminal offence (d) shall be pertained to defend himself before the court in person or by a legal representative of his own choice<br />
<br />
* 77 (14) Nothing contained in subsection (2)(d) shall be construed as entitling a person to legal representation at public expense.<br />
<br />
Criminal Procedure Code (2009)<br />
<br />
* 137F (1) Before the court records a plea agreement, the accused person shall be placed under oath and the court shall address the accused person personally in court, and shall inform the accused person of, and determine that the accused person understands - (a) the right to - (vi) be represented by a legal representative of his own choice, and where necessary, have the court appoint<br />
<br />
Parliament shall enact legislation that (a) provides for the humane treatment of persons detained, held in custody or imprisoned; and (b) takes into account the relevant international human rights Instruments<br />
<br />
===Rwanda===<br />
<br />
* Any person detained by the judicial police shall have the right to consult with his or her legal counsel. In case he or she fails to seek one, he or she shall inform the chairperson of the bar association for assigning a counsel to him or her, but he or she has the right to accept or refuse that counsel. (Article 39 Rwandan CPC)<br />
<br />
* a public prosecutor informs the accused of the right to seek a defense counsel. The counsel is allowed to read the case file as well as to communicate with the accused.(Article 64 Rwandan CPC)<br />
<br />
* Article 18 of the Rwandan Constitution states that the “right to defence” is absolute at “all levels and degrees of proceedings before administrative, judicial and all other decision making organs.” <ref> Rwandan Constitution of 2003, http://www.kituochakatiba.org/index2.php?option=com_docman&task=doc_view&gid=1180&Itemid=36 </ref> Article 19 further states that the accused has a right to a public and fair hearing “all the necessary guarantees for defence have been made available.” <ref> Ministry of Justice- Codes and Laws of Rwanda, http://www.amategeko.net/display_article.php?Motcle_ID=24811&Information_ID=1333&Parent_ID=30693517&type=public </ref> This idea has been affirmed in Article 39 of the Rwandan Code of Criminal Procedure (CCP) which reads “any person detained by judicial police shall have the right to consult with his or her legal counsel. In case he or she falls to seek one, he or she shall inform the chairperson of the bar association for assigning a counsel to him or her, but he or she has the right to accept or refuse that counsel.” <ref> Ministry of Justice- Codes and Laws of Rwanda, http://www.amategeko.net/display_article.php?Motcle_ID=24811&Information_ID=1333&Parent_ID=30693517&type=public </ref> Moreover, Article 64 of the CCP supplements this right to counsel by stating that a public prosecutor should inform the accused of the right to defence before an interrogation if the accused has not asked for counsel.<ref> Ministry of Justice- Codes and Laws of Rwanda, http://www.amategeko.net/display_rubrique.php?ActDo=ShowArt&Information_ID=1333&Parent_ID=30693517&type=public&Langue_ID=An&rubID=30693551 </ref> <br />
<br />
*There has been much controversy surrounding the right to counsel in Rwanda, mostly focusing on the proceedings in the traditional gacaca tribunals. The current gacaca system was adapted from the indigenous form of conflict resolution. <ref> Leah Werchick, Prospects for Justice in Rwanda’s Citizen Tribunals, 8 No. 3 Hum. Rts. Brief 15 (2001), available at http://www.wcl.american.edu/hrbrief/08/3rwanda.cfm </ref> The Rwandan government established the gacaca system, promulgated by Organic Law 40/2000, to aid the judicial resolution of the crimes from the 1994 genocide. <ref> L. Danielle Tully, Human Rights Compliance and the Gacaca Jurisdictions in Rwanda, 26 B.C. Int'l & Comp. L. Rev. 385 (2003) </ref> Traditionally under gacaca law, counsel do not participate at any level in the proceedings. <ref> Leah Werchick, Prospects for Justice in Rwanda’s Citizen Tribunals, 8 No. 3 Hum. Rts. Brief 15 (2001), available at http://www.wcl.american.edu/hrbrief/08/3rwanda.cfm </ref> Moreover, the gacaca system gives more powers to the prosecution than the defendants. <ref> Leah Werchick, Prospects for Justice in Rwanda’s Citizen Tribunals, 8 No. 3 Hum. Rts. Brief 15 (2001), available at http://www.wcl.american.edu/hrbrief/08/3rwanda.cfm </ref> Defendants are not allowed to call defense witnesses or cross-examine prosecution witnesses. <ref> Leah Werchick, Prospects for Justice in Rwanda’s Citizen Tribunals, 8 No. 3 Hum. Rts. Brief 15 (2001), available at http://www.wcl.american.edu/hrbrief/08/3rwanda.cfm </ref> The gacaca system also “allocates investigatory resources to the gacaca councils to prepare and classify the cases against the accused.” <ref> Leah Werchick, Prospects for Justice in Rwanda’s Citizen Tribunals, 8 No. 3 Hum. Rts. Brief 15 (2001), available at http://www.wcl.american.edu/hrbrief/08/3rwanda.cfm </ref> However, if convicted, defendants do have the right to appeal the decision.<ref> L. Danielle Tully, Human Rights Compliance and the Gacaca Jurisdictions in Rwanda, 26 B.C. Int'l & Comp. L. Rev. 385 (2003) </ref><br />
<br />
===Uganda===<br />
<br />
Constitution<br />
<br />
* 28 (3) Every person who is charged with a criminal offence shall-<br />
** (e) in the case of any offence which carries a sentence of death or imprisonment for life, be entitled to legal representation at the expense of the State<br />
<br />
===United Kingdom===<br />
<br />
* England, Wales, and Northern Ireland are governed by Article 58(1) of the Police and Criminal Evidence Act of 1984 (PACE).<br />
** A person arrested and held in custody in a police Access to station or other premises shall be entitled, if he so requests, to legal advice, consult a solicitor privately at any time. <br />
<br />
* PACE gives the defendants the right to be informed of their legal rights when they are detained, including their right to legal counsel. These rights do not exist in common law.<br />
<br />
* In October 2010, the UK Supreme Court ruled in Cadder v. Her Majesty’s Advocate, (2010) UKSC 43, that the Scottish police can no longer questions a suspect in custody without the presence of a lawyer. The police were allowed to interrogate suspects for up to six hours without the defendant’s lawyer present, however, the Court determined this violated Article 6 of the European Convention on Human Rights. <br />
** Article 6(c) - “to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require.<br />
<br />
===United States===<br />
<br />
* The right to counsel in the United States arises from the Sixth and Fifth Amendments to the U.S. Constitution. <br />
<br />
* The Sixth Amendment states that “in all criminal prosecutions, the accused shall enjoy the right…to have the Assistance of Counsel for his defense.” In Gideon v. Wainwright the right to counsel was incorporated against the states.<ref> 372 U.S. 335 (1963). </ref> Thus, this right applies to all federal and state criminal prosecutions where the defendant is accused of a felony or of a misdemeanor and a sentence of incarceration is actually imposed. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref><br />
<br />
* The right to counsel attaches at the beginning of any adversarial judicial proceedings “whether by way of formal charge, preliminary hearing, indictment, information or arraignment.” <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref> In the recent U.S. Supreme Court case Rothgery v. Gillespie County, 554 U.S. 191, the Supreme Court held 8-1 that "a criminal defendant’s initial appearance before a judicial officer, where he learns of the charge against him and his liberty is subject to restriction, marks the start of adversary judicial proceedings that trigger attachment of the Sixth Amendment right to counsel." If the defendant had the right to counsel but counsel was not provided, this would be grounds for an automatic reversal of the defendant’s conviction. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref><br />
<br />
* All indigent defendants who cannot afford to retain an attorney have an absolute right to have counsel appointed to them. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref> The right to counsel does not apply to discretionary appeals or collateral attacks. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref><br />
<br />
* The Supreme Court has held that an accused has the right under the Sixth Amendment to conduct her own defense in a criminal case. <ref> Faretta v. California, 422 U.S. 806 (1975). </ref> This is known as pro se representation. In order for a defendant to waive the right of counsel, the defendant must knowingly and intelligently waive such a right. <ref> Johnson v. Zerbst, 304 U.S. 458 (1938). </ref> The waiver of this right is not absolute as a judge may stop pro se representation if the defendant is not able or willing to abide by the general rules of procedure or courtroom protocol. <ref> Right to Counsel, 87 Geo. L.J. 1519 (1999). </ref><br />
<br />
* The Fifth Amendment indirectly promotes the right to counsel in the United States. In the landmark case of Miranda v. Arizona, the Supreme Court, in recognizing the constitutional guarantee against self-incrimination, notes that if the defendant “indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking there can be no questioning [by the police].” <ref> 384 U.S. 436, 444-45 (1966). </ref> The Court reinforced this principle in Edwards v. Arizona, in stating that when the accused expresses his desire to “deal with the police only through counsel, [he] is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges or conversations with the police.” <ref> 451 U.S. 477, 484-85 (1981). </ref> The Court noted that the Miranda-Edwards rule were “designed to prevent police from badgering a defendant into waiving his right to counsel.” <ref> 451 U.S. 477, 484-85 (1981). </ref><br />
<br />
===Zimbabwe===<br />
<br />
* The accused shall be permitted to defend themselves or, at their own expense, get a legal representative of their own choice. <ref>Constitution section (18)(3)(d).</ref><br />
<br />
* If the accused cannot afford a legal representative, a magistrate can deem it necessary and desirable and in the interests of justice to certify that such a person have this assistance. <ref>Legal Aid Act, part III section (10)(1)(a-b), 1996.</ref><br />
<br />
==References==<br />
See [[Rights of the Accused]]<br />
<br />
<references/></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Mayhem&diff=9019Mayhem2011-02-15T13:42:31Z<p>Durankar: /* Variation by Jurisdiction */</p>
<hr />
<div>==Background==<br />
<br />
The word "mayhem" is the older form of the word "maim."<ref>Maria Del Rio, J.D., Mayhem and Related Offenses, American Jurisprudence, 2nd edition (2010)</ref> Under common law, mayhem is the crime of maliciously injuring a person's body, especially to impair or destroy the victim's capacity for self-defense.<ref>Black's Law Dictionary, 9th edition (2009)</ref> This is usually treated as part of aggravated battery under modern-day statutes. Mayhem has three elements: 1) a malicious and 2) unlawful act of physical force 3 which deprives a person of a member of his/her body or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip.<ref>Maria Del Rio, J.D., Mayhem and Related Offenses, American Jurisprudence, 2nd edition (2010)</ref> Mayhem may also refer to violent destruction or disruption. <br />
<br />
==Model Penal Code==<br />
<br />
The Model Penal Code consolidates the crime of mayhem with the crime of assault in section 211.1. Mayhem is usually seen as constituting aggravated assault.<ref>Model Penal Code, Explanatory Notes for Sections 211.1-211.3 (2009)</ref><br />
<br />
==Variation by Jurisdiction==<br />
<br />
'''California'''<br />
<br />
In California, a person who "unlawfully and maliciously deprives a human being of a member of his body, or disables, disfigures, or renders it useless, or cuts or disables the tongue, or puts out an eye, or slits the nose, ear, or lip, is guilty of mayhem."<ref>CA Penal Code, Title 8, Chapter 2, § 203 (2008)</ref> A conviction for mayhem is punishable by imprisonment for two, four, or eight years. California also has the crime of aggravated mayhem, meaning that a person "unlawfully, under circumstances manifesting extreme indifference to the physical or psychological well-being of another person, intentionally causes permanent disability or disfigurement of another human being or deprives a human being of a limb, organ, or member of his or her body." Aggravated mayhem is categorized as a felony and is punishable by a sentence of life in prison.<ref>CA Penal Code, Title 8, Chapter 2, § 205 (2008)</ref> In addition to both mayhem and aggravated mayhem, California Penal Code also includes the related crime of torture.<ref>CA Penal Code, Title 8, Chapter 2, § 206 (2008)</ref><br />
<br />
'''Nevada'''<br />
<br />
Under Title 15, section 200.280, an individual commits mayhem when she or he unlawfully deprives a "human being of a member of his or her body, or disfiguring or rendering it useless." This includes actions such as cutting out or disabling the tongue, slitting the nose, ear or lip, or disabling any limb or member of another, or voluntarily, or of purpose, putting out an eye.<ref>Nevada Criminal Code, Title 15, Chapter 200, Section 280 (2009)</ref> The state categorizes it as a class B felony. A conviction of mayhem includes a sentence of imprisonment for two to ten years, and may be further enhanced by a fine of up to $10,000.<br />
<br />
==Common Defenses==<br />
<br />
Depending on the circumstances of a situation, a defense to mayhem may be that the defendant lacked the intent to cause harm or disfigurement to the victim. Though this will likely not discharge the defendant from all criminal liability, it may lessen the charge (i.e. from aggravated assault to assault).<br />
<br />
-----<br />
See [[Crimes]]<br />
<br />
==Notes==<br />
<references></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Sodomy&diff=9018Sodomy2011-02-15T13:10:09Z<p>Durankar: /* Foreign Jurisdictions */</p>
<hr />
<div>==Background==<br />
<br />
Sodomy is defined as oral or anal copulation between humans, especially those of the same sex.<ref>Black's Law Dictionary, 9th Edition (2009)</ref> A related crime is aggravated sodomy, which involves force or results in serious bodily injury to the victim, in addition mental and emotional distress.<ref>Black's Law Dictionary, 9th Edition (2009)</ref> The Model Penal Code includes sodomy in its definition of deviate sexual behavior.<ref>Model Penal Code § 213.0 (2001)</ref><br />
<br />
A landmark case in the U.S. that drastically impacted sodomy laws is ''Lawrence v. Texas''.<ref>Lawrence v. Texas, 539 U.S. 558 (2003)</ref> The ''Lawrence'' case was the first time a same sex couple were prosecuted and convicted under the Texas sodomy statute of consensual sodomy performed by adults in a private bedroom.<ref>Christopher R. Leslie, Lawrence v. Texas as the Perfect Storm, 38 U.C. Davis L. Rev. 509 (2005)</ref> In ''Lawrence'', the Supreme Court held that state laws that ban private, consensual sodomy between adults are unconstitutional as an infringement on the right to privacy. The decision in ''Lawrence'' overturned the Court's prior ruling in ''Bowers v. Hardwick'', in which the Court held that Georgia's anti-sodomy statute did not violate an individual's right to privacy.<ref>Bowers v. Hardwick, 478 U.S. 186 (1986)</ref><br />
<br />
==Federal Laws of the United States==<br />
<br />
Violations of state sodomy laws can be brought into federal court when committed within the special maritime and territorial jurisdiction of the United States.<ref>Eric C. Surette, Sodomy Summary, American Jurisprudence (2010)</ref> The Assimilative Crimes Act provides the basis of jurisdiction for these types of cases. Moreover, the Code of Military Justice punishes sodomy activities within military personnel.<ref>Eric C. Surette, Sodomy Summary, American Jurisprudence (2010)</ref><br />
<br />
==Variation by Jurisdiction==<br />
<br />
'''New York'''<br />
<br />
New York categorizes the crime of sodomy under criminal sexual acts. Such crimes are split into three types of offenses: criminal sexual acts in the third degree, criminal sexual acts in the second degree, and criminal sexual acts in the first degree.<ref>New York Penal Code, Title H, Article 130, § 130.40-130.50 (2009)</ref> A person is guilty of criminal sexual act in the third degree when 1) he engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old, 2) he, being older than twenty-one, engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old or 3) he engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent. A criminal sexual act in the third degree is a class E felony.<ref>New York Penal Code, Title H, Article 130, § 130.40 (2009)</ref> <br />
<br />
A person is guilty of criminal sexual act in the second degree when 1) he, being over the age of eighteen, engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old or 2) he engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. If the defendant was less than four years older than the victim at the time of the offense, then this fact may be used as an affirmative defense in the defendant's favor. Criminal sexual acts in the second degree is a class D felony.<ref>New York Penal Code, Title H, Article 130, § 130.45 (2009)</ref><br />
<br />
A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person: 1) by forcible compulsion 2) who is incapable of consent by reason of being physically helpless 3) who is less than eleven years old or 4) who is less than thirteen years old and the actor is eighteen years old or more. This crime is a class B felony.<ref>New York Penal Code, Title H, Article 130, § 130.50 (2009)</ref><br />
<br />
'''Maryland'''<br />
<br />
Under the Maryland Criminal Code section 3-321, the crime of forced sodomy is punishable by imprisonment for up to ten years.<ref>Maryland Criminal Code, § 3-321 (2002)</ref><br />
<br />
==Common Defenses==<br />
<br />
Depending on the sodomy statute and the specific situation of a case, consent may sometimes be a defense to the charge of sodomy (i.e. consent is usually not a defense when the sodomy charge involves a minor). Mental disability and irresistible insane impulse are defenses to sodomy. The theory behind the mental disability defense is that an individual is unable to comprehend the nature and consequences of the act.<ref>Jane E. Lehman, Sodomy- Corpus Juris Secundum, Nov. 2010</ref><br />
<br />
==Foreign Jurisdictions==<br />
<br />
'''Myanmar'''<br />
<br />
Section 377 of Myanmar's Criminal Code does not explicitly mention sodomy, but does prohibit "unnatural offenses," meaning the voluntarily carnal knowledge of man, woman, or animal that is against the "order of nature." This crime is punishable by imprisonment and fines.<ref>http://www.blc-burma.org/html/myanmar%20penal%20code/mpc.html</ref><br />
<br />
'''Uganda'''<br />
<br />
Uganda also does not have a legal provision that specifically mentions sodomy, but it does have a section of its criminal code that bans “carnal knowledge of any person against the order of nature." If charged with this crime, an individual may be sentenced to life imprisonment.<ref>http://www.amnesty.org/en/library/asset/POL30/003/2008/en/d77d0d58-4cd3-11dd-bca2-bb9d43f3e059/pol300032008eng.html#sdendnote48anc</ref><br />
<br />
----<br />
See [[Crimes]]<br />
<br />
==Notes==<br />
<references></div>Durankarhttps://defensewiki.ibj.org/index.php?title=England_and_Wales&diff=9016England and Wales2011-02-15T10:31:19Z<p>Durankar: /* Pre-trial phase */</p>
<hr />
<div> <br />
==Background==<br />
In 55 AD, Roman forces conquered what is today known as the United Kingdom of Great Britain and Ireland, signaling the start of a long history of incorporation and development. <ref> www.state.gov/r/pa/ei/bgn</ref> The Norman conquest in 1066 further characterized the UK and instilled many important legal, political, and cultural institutions. For the next 700 years, the UK created an empire that spanned over one-fourth of the globe and that controlled key economic markets. Both World Wars, however, severely weakened the British Empire and the UK eventually lost control of colonies in Africa, Asia, and the Middle East. Today, those territories that remain under British control are part of the British Commonwealth of Nations, an association that includes countries such as Australia, New Zealand, and Canada. In addition, the current United Kingdom consists of Northern Ireland, Wales, England, and Scotland. The UK is a constitutional monarchy, a system in which the monarch is the head of state and the prime minister is the head of government. The current Conservative party prime minister, David Cameron, faces challenges such as integrating a growing immigrant population and reviving the economy. 92.1% of the UK’s population is of Scottish, English, Welsh, or Northern Irish descent. In recent decades, however, the UK has been experiencing a large influx of immigration from former colonies such as India and Pakistan. <ref>www.state.gov/r/pa/ei/bgn</ref><br />
== Type of system==<br />
The legal system of England and Wales is based on common law. The United Kingdom does not have a formal constitution and the parliament has virtually limitless constitutional sovereignty. Parliament has worked to increase police privileges and decrease protection of accused persons, while the courts have acted to expand their common law powers through the interpretation of statutes. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 149 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
==Source of defendants’ rights==<br />
Although the United Kingdom does not have a written constitution, defendants’ rights are protected by multiple conventions, such as the European Convention on Human Rights (ECHR). The Human Right Act of 1998, for instance, entered into English law many human rights as detailed by the ECHR. Additionally, the Human Rights Act declares that any act committed by a public authority that violates the ECHR is unlawful. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 149 ( 2d ed., Carolina Academic Press 2007)</ref> The Human Rights Act prohibits the use of torture or other degrading acts, prohibits discrimination, declares that everyone has a right to life and liberty, the right to a fair trial, the right of respected private home and family communication, and the right to freedom of expression. <ref>www.legislation.gov.uk</ref> Additionally, law under the European Union applies to the United Kingdom and in a case of conflict, EU law presides over UK law. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 149 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
==Pre-trial phase==<br />
Arrests in England and Wales are divided into two categories: those made with warrants and those made without warrants. Most present day arrests are made without warrants. After arrest, the arresting constable must decide whether there is enough evidence to charge the person or if they should be released. If the accused is not charged, they can only be detained for a maximum of 24 hours. <ref>PACE section 41</ref> However, arrests made under the Terrorism Acts of 2000 and 2006, detention is permitted to last up to 28 days. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 157 ( 2d ed., Carolina Academic Press 2007)</ref> Additionally, Article 5 of the Human Rights Act details that every detainee must be informed of the charges brought before them in a timely manner and in a language that they understand and that they must be brought before a judge and awarded a trial within a reasonable time period. <ref>www.legislation.gov.uk</ref> <br />
<br />
Under British common law, the police must justify each search and entry of a dwelling with either consent or a warrant. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 158 ( 2d ed., Carolina Academic Press 2007)</ref> Common law also dictates that in instances of interrogation, the person being interrogated is not required to answer questions posed to them by the police.<br />
<br />
==Court procedures==<br />
At the time of an accused person’s arrest, police officials will complete a charge sheet which will include all of the details of the crime, and this sheet will include all of the necessary information for proceedings in the magistrates’ court. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 175 ( 2d ed., Carolina Academic Press 2007)</ref> After the arrest, the Crown Prosecution Service will decide whether or not the case should be prosecuted. The decision to prosecute is based on whether or not there is a realistic possibility of conviction and whether or not the case is in the public interest. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 173 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
In England and Wales, there are no preliminary hearings for summary offenses. For trials on indictment, there is a committal hearing before magistrates. There are two kinds of procedures for these committal hearings: the first does not include consideration of the evidence at all and the second includes documentary evidence that is submitted by the prosecution to the magistrates. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 176 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
<br />
Pre-trial motions are generally very rare and are limited to cases such as bail, legal aid for the trial, and orders that restrict pre-trial publicity. After the defendant is charged, he will be allowed to plea either guilty or not guilty. It will then be decided whether or not his case will be heard in a magistrates’ court or the Crown Court. This procedure is known as “plea before venue” and is detailed in Section 49 of the Criminal Procedure and Investigations Act of 1996. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 176 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
<br />
In terms of discovery, requirements concerning prosecution disclosure were recently turned into common law duties. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 177 ( 2d ed., Carolina Academic Press 2007)</ref> In circumstances of prosecution disclosure, the prosecutor must disclose information to the defense that might jeopardize the prosecution’s case. <ref>Criminal Procedure and Investigation Act 1996, section 3</ref> Trials in England and Wales are adversarial in nature, although the prosecution is required to present the case in a way that is fair and objective towards the defendant. All criminal trials take place in one of three courts: the magistrates’ courts, the Crown Court, or the youth courts. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 180 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
<br />
According to English common law and the European Convention on Human Rights, an accused person is entitled to a fair trial and a number of other rights. These rights include the right not to be subjected to proceedings which are in violation of court procedure, the right to an impartial tribunal, the right to a randomly selected jury <ref>Juries Act 1974</ref>, the right to counsel, the right to disclosure of materials by the prosecution, and the right to be present at the examination of witnesses. <ref>Magistrates’ Courts Act 1980, section 4(3)</ref> <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 180-182 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
<br />
English common law and Article 6.1 of the European Convention on Human Rights both adhere to the concept of a fair hearing based on the principle of equality between the prosecution and the defense. The defendant is also entitled to appoint their own legal representation, or if need be, the state will bear the cost of the defendant’s legal representation. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 183 ( 2d ed., Carolina Academic Press 2007)</ref> Both the prosecution and the defense have the right to bring witnesses to the stand. Witnesses who refuse to answer questions without a reasonable excuse will be held in contempt of court. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 183 ( 2d ed., Carolina Academic Press 2007)</ref> Expert witnesses may be called on behalf of either the prosecution or the defense and their testimony is given more weight than other witnesses due to their professional opinion. Additionally, expert witnesses are exempt from the prohibition on the admissibility of hearsay evidence. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 186 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
Following the publication of the UN’s Declaration of General Principles of Justice for the Victims of Crime and Abuse of Power, England and Wales published the Victim’s Charter. The Charter lays out considerations that the police and other court officials should keep in mind when interacting with victims of crimes. The Charter has even resulted in the retraining of some personnel on issues of sensitivity and dealing with trauma. <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 190 ( 2d ed., Carolina Academic Press 2007)</ref> <br />
<br />
<br />
In the magistrates’ court, the magistrate presides over the proceedings and issues a sentence after conviction. Magistrates are appointed by commissions that are determined by county and a magistrate’s jurisdiction is limited to that county in which they have been appointed. The two types of magistrates that exist in England and Wales are lay magistrates and district judges (or stipendiary magistrates). Lay magistrates are not legally qualified and are not paid, while district judges are qualified barristers or solicitors and are appointed by the Queen. <ref>Justice of the Peace Act 1997, s section 11,16</ref> <ref>Craig M. Bradley, Criminal Procedure A Worldwide Study 187-188 ( 2d ed., Carolina Academic Press 2007)</ref><br />
<br />
==References==<br />
<references/><br />
<br />
<h2 id="mp-dyk-h2" style="margin:3px; background:#143966; font-size:120%; font-weight:bold; border:1px solid #a3bfb1; text-align:left; color:#ffffff; padding:0.2em 0.4em;">QUICK FACTS</h2> <br />
<br />
<br />
*England and Wales has a total prison population of 84,145, with every 152 per 100,000 people in prison.<br />
*About 14.9% of England and Wales’ prison population consists of pre-trial detainees and about 1.9% is made up of juvenile prisoners.<br />
* England and Wales has 140 prison institutions with an official occupancy of 77,466 prisoners. The current prison occupancy level is at 107.2%. <br />
<br />
{{Languages|English}}<br />
<br />
__NOTOC__</div>Durankarhttps://defensewiki.ibj.org/index.php?title=Sodomy&diff=8989Sodomy2011-02-14T15:55:18Z<p>Durankar: /* Background */</p>
<hr />
<div>==Background==<br />
<br />
Sodomy is defined as oral or anal copulation between humans, especially those of the same sex.<ref>Black's Law Dictionary, 9th Edition (2009)</ref> A related crime is aggravated sodomy, which involves force or results in serious bodily injury to the victim, in addition mental and emotional distress.<ref>Black's Law Dictionary, 9th Edition (2009)</ref> The Model Penal Code includes sodomy in its definition of deviate sexual behavior.<ref>Model Penal Code § 213.0 (2001)</ref><br />
<br />
A landmark case in the U.S. that drastically impacted sodomy laws is ''Lawrence v. Texas''.<ref>Lawrence v. Texas, 539 U.S. 558 (2003)</ref> The ''Lawrence'' case was the first time a same sex couple were prosecuted and convicted under the Texas sodomy statute of consensual sodomy performed by adults in a private bedroom.<ref>Christopher R. Leslie, Lawrence v. Texas as the Perfect Storm, 38 U.C. Davis L. Rev. 509 (2005)</ref> In ''Lawrence'', the Supreme Court held that state laws that ban private, consensual sodomy between adults are unconstitutional as an infringement on the right to privacy. The decision in ''Lawrence'' overturned the Court's prior ruling in ''Bowers v. Hardwick'', in which the Court held that Georgia's anti-sodomy statute did not violate an individual's right to privacy.<ref>Bowers v. Hardwick, 478 U.S. 186 (1986)</ref><br />
<br />
==Federal Laws of the United States==<br />
<br />
Violations of state sodomy laws can be brought into federal court when committed within the special maritime and territorial jurisdiction of the United States.<ref>Eric C. Surette, Sodomy Summary, American Jurisprudence (2010)</ref> The Assimilative Crimes Act provides the basis of jurisdiction for these types of cases. Moreover, the Code of Military Justice punishes sodomy activities within military personnel.<ref>Eric C. Surette, Sodomy Summary, American Jurisprudence (2010)</ref><br />
<br />
==Variation by Jurisdiction==<br />
<br />
'''New York'''<br />
<br />
New York categorizes the crime of sodomy under criminal sexual acts. Such crimes are split into three types of offenses: criminal sexual acts in the third degree, criminal sexual acts in the second degree, and criminal sexual acts in the first degree.<ref>New York Penal Code, Title H, Article 130, § 130.40-130.50 (2009)</ref> A person is guilty of criminal sexual act in the third degree when 1) he engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old, 2) he, being older than twenty-one, engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old or 3) he engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent. A criminal sexual act in the third degree is a class E felony.<ref>New York Penal Code, Title H, Article 130, § 130.40 (2009)</ref> <br />
<br />
A person is guilty of criminal sexual act in the second degree when 1) he, being over the age of eighteen, engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old or 2) he engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. If the defendant was less than four years older than the victim at the time of the offense, then this fact may be used as an affirmative defense in the defendant's favor. Criminal sexual acts in the second degree is a class D felony.<ref>New York Penal Code, Title H, Article 130, § 130.45 (2009)</ref><br />
<br />
A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person: 1) by forcible compulsion 2) who is incapable of consent by reason of being physically helpless 3) who is less than eleven years old or 4) who is less than thirteen years old and the actor is eighteen years old or more. This crime is a class B felony.<ref>New York Penal Code, Title H, Article 130, § 130.50 (2009)</ref><br />
<br />
'''Maryland'''<br />
<br />
Under the Maryland Criminal Code section 3-321, the crime of forced sodomy is punishable by imprisonment for up to ten years.<ref>Maryland Criminal Code, § 3-321 (2002)</ref><br />
<br />
==Common Defenses==<br />
<br />
Depending on the sodomy statute and the specific situation of a case, consent may sometimes be a defense to the charge of sodomy (i.e. consent is usually not a defense when the sodomy charge involves a minor). Mental disability and irresistible insane impulse are defenses to sodomy. The theory behind the mental disability defense is that an individual is unable to comprehend the nature and consequences of the act.<ref>Jane E. Lehman, Sodomy- Corpus Juris Secundum, Nov. 2010</ref><br />
<br />
==Foreign Jurisdictions==<br />
<br />
'''Burma/Myanmar'''<br />
<br />
Section 377 of the Burmese Criminal Code does not explicitly mention sodomy, but does prohibit "unnatural offenses," meaning the voluntarily carnal knowledge of man, woman, or animal that is against the "order of nature." This crime is punishable by imprisonment and fines.<ref>http://www.blc-burma.org/html/myanmar%20penal%20code/mpc.html</ref><br />
<br />
'''Uganda'''<br />
<br />
Uganda also does not have a legal provision that specifically mentions sodomy, but it does have a section of its criminal code that bans “carnal knowledge of any person against the order of nature." If charged with this crime, an individual may be sentenced to life imprisonment.<ref>http://www.amnesty.org/en/library/asset/POL30/003/2008/en/d77d0d58-4cd3-11dd-bca2-bb9d43f3e059/pol300032008eng.html#sdendnote48anc</ref><br />
<br />
----<br />
See [[Crimes]]<br />
<br />
==Notes==<br />
<references></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Sodomy&diff=8988Sodomy2011-02-14T15:53:25Z<p>Durankar: /* Background */</p>
<hr />
<div>==Background==<br />
<br />
Sodomy is defined as oral or anal copulation between humans, especially those of the same sex.<ref>Black's Law Dictionary, 9th Edition (2009)</ref> A related crime is aggravated sodomy, which involves force or results in serious bodily injury to the victim, in addition mental and emotional distress.<ref>Black's Law Dictionary, 9th Edition (2009)</ref> The Model Penal Code includes sodomy in its definition of deviate sexual behavior.<ref>Model Penal Code § 213.0 (2001)</ref><br />
<br />
A landmark case in the U.S. that drastically impacted sodomy laws is ''Lawrence v. Texas''.<ref>Lawrence v. Texas, 539 U.S. 558 (2003)</ref> The ''Lawrence'' case was the first time a same sex couple were prosecuted and convicted under the Texas sodomy statute of consensual sodomy performed by adults in a private bedroom.<ref>Christopher R. Leslie, Lawrence v. Texas as the Perfect Storm, 38 U.C. Davis L. Rev. 509 (2005)</ref> In ''Lawrence'', the Supreme Court held that state laws that ban private, consensual sodomy between adults are unconstitutional as an infringement on the right to privacy. The decision in ''Lawrence'' overturned the Court's prior ruling in ''Bowers v. Hardwick'', in which the Court held that Georgia's anti-sodomy statute did not violate an individuals right to privacy.<ref>Bowers v. Hardwick, 478 U.S. 186 (1986)</ref><br />
<br />
==Federal Laws of the United States==<br />
<br />
Violations of state sodomy laws can be brought into federal court when committed within the special maritime and territorial jurisdiction of the United States.<ref>Eric C. Surette, Sodomy Summary, American Jurisprudence (2010)</ref> The Assimilative Crimes Act provides the basis of jurisdiction for these types of cases. Moreover, the Code of Military Justice punishes sodomy activities within military personnel.<ref>Eric C. Surette, Sodomy Summary, American Jurisprudence (2010)</ref><br />
<br />
==Variation by Jurisdiction==<br />
<br />
'''New York'''<br />
<br />
New York categorizes the crime of sodomy under criminal sexual acts. Such crimes are split into three types of offenses: criminal sexual acts in the third degree, criminal sexual acts in the second degree, and criminal sexual acts in the first degree.<ref>New York Penal Code, Title H, Article 130, § 130.40-130.50 (2009)</ref> A person is guilty of criminal sexual act in the third degree when 1) he engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old, 2) he, being older than twenty-one, engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old or 3) he engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent. A criminal sexual act in the third degree is a class E felony.<ref>New York Penal Code, Title H, Article 130, § 130.40 (2009)</ref> <br />
<br />
A person is guilty of criminal sexual act in the second degree when 1) he, being over the age of eighteen, engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old or 2) he engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. If the defendant was less than four years older than the victim at the time of the offense, then this fact may be used as an affirmative defense in the defendant's favor. Criminal sexual acts in the second degree is a class D felony.<ref>New York Penal Code, Title H, Article 130, § 130.45 (2009)</ref><br />
<br />
A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person: 1) by forcible compulsion 2) who is incapable of consent by reason of being physically helpless 3) who is less than eleven years old or 4) who is less than thirteen years old and the actor is eighteen years old or more. This crime is a class B felony.<ref>New York Penal Code, Title H, Article 130, § 130.50 (2009)</ref><br />
<br />
'''Maryland'''<br />
<br />
Under the Maryland Criminal Code section 3-321, the crime of forced sodomy is punishable by imprisonment for up to ten years.<ref>Maryland Criminal Code, § 3-321 (2002)</ref><br />
<br />
==Common Defenses==<br />
<br />
Depending on the sodomy statute and the specific situation of a case, consent may sometimes be a defense to the charge of sodomy (i.e. consent is usually not a defense when the sodomy charge involves a minor). Mental disability and irresistible insane impulse are defenses to sodomy. The theory behind the mental disability defense is that an individual is unable to comprehend the nature and consequences of the act.<ref>Jane E. Lehman, Sodomy- Corpus Juris Secundum, Nov. 2010</ref><br />
<br />
==Foreign Jurisdictions==<br />
<br />
'''Burma/Myanmar'''<br />
<br />
Section 377 of the Burmese Criminal Code does not explicitly mention sodomy, but does prohibit "unnatural offenses," meaning the voluntarily carnal knowledge of man, woman, or animal that is against the "order of nature." This crime is punishable by imprisonment and fines.<ref>http://www.blc-burma.org/html/myanmar%20penal%20code/mpc.html</ref><br />
<br />
'''Uganda'''<br />
<br />
Uganda also does not have a legal provision that specifically mentions sodomy, but it does have a section of its criminal code that bans “carnal knowledge of any person against the order of nature." If charged with this crime, an individual may be sentenced to life imprisonment.<ref>http://www.amnesty.org/en/library/asset/POL30/003/2008/en/d77d0d58-4cd3-11dd-bca2-bb9d43f3e059/pol300032008eng.html#sdendnote48anc</ref><br />
<br />
----<br />
See [[Crimes]]<br />
<br />
==Notes==<br />
<references></div>Durankarhttps://defensewiki.ibj.org/index.php?title=Sodomy&diff=8985Sodomy2011-02-14T15:37:15Z<p>Durankar: /* Background */</p>
<hr />
<div>==Background==<br />
<br />
Sodomy is defined as oral or anal copulation between humans, especially those of the same sex.<ref>Black's Law Dictionary, 9th Edition (2009)</ref> A related crime is aggravated sodomy, which involves force or results in serious bodily injury to the victim, in addition mental and emotional distress.<ref>Black's Law Dictionary, 9th Edition (2009)</ref> The Model Penal Code includes sodomy in its definition of deviate sexual behavior.<ref>Model Penal Code § 213.0 (2001)</ref><br />
<br />
A landmark case in the U.S. that drastically impacted sodomy laws is ''Lawrence v. Texas''.<ref>Lawrence v. Texas, 539 U.S. 558 (2003)</ref> The ''Lawrence'' case was the first time a same sex couple were prosecuted and convicted under the Texas sodomy statute of consensual sodomy performed by adults in a private bedroom.<ref>Christopher R. Leslie, Lawrence v. Texas as the Perfect Storm, 38 U.C. Davis L. Rev. 509 (2005)</ref> In ''Lawrence'', the Supreme Court held that state laws that ban private, consensual sodomy between adults are unconstitutional as an infringement on the right to privacy. The decision in ''Lawrence'' overturned the Court's prior ruling in ''Bowers v. Hardwick'', in which the Court held that Georgia's sodomy statute did not violate the fundamental rights of homosexuals.<ref>Bowers v. Hardwick, 478 U.S. 186 (1986)</ref><br />
<br />
==Federal Laws of the United States==<br />
<br />
Violations of state sodomy laws can be brought into federal court when committed within the special maritime and territorial jurisdiction of the United States.<ref>Eric C. Surette, Sodomy Summary, American Jurisprudence (2010)</ref> The Assimilative Crimes Act provides the basis of jurisdiction for these types of cases. Moreover, the Code of Military Justice punishes sodomy activities within military personnel.<ref>Eric C. Surette, Sodomy Summary, American Jurisprudence (2010)</ref><br />
<br />
==Variation by Jurisdiction==<br />
<br />
'''New York'''<br />
<br />
New York categorizes the crime of sodomy under criminal sexual acts. Such crimes are split into three types of offenses: criminal sexual acts in the third degree, criminal sexual acts in the second degree, and criminal sexual acts in the first degree.<ref>New York Penal Code, Title H, Article 130, § 130.40-130.50 (2009)</ref> A person is guilty of criminal sexual act in the third degree when 1) he engages in oral sexual conduct or anal sexual conduct with a person who is incapable of consent by reason of some factor other than being less than seventeen years old, 2) he, being older than twenty-one, engages in oral sexual conduct or anal sexual conduct with a person less than seventeen years old or 3) he engages in oral sexual conduct or anal sexual conduct with another person without such person's consent where such lack of consent is by reason of some factor other than incapacity to consent. A criminal sexual act in the third degree is a class E felony.<ref>New York Penal Code, Title H, Article 130, § 130.40 (2009)</ref> <br />
<br />
A person is guilty of criminal sexual act in the second degree when 1) he, being over the age of eighteen, engages in oral sexual conduct or anal sexual conduct with another person less than fifteen years old or 2) he engages in oral sexual conduct or anal sexual conduct with another person who is incapable of consent by reason of being mentally disabled or mentally incapacitated. If the defendant was less than four years older than the victim at the time of the offense, then this fact may be used as an affirmative defense in the defendant's favor. Criminal sexual acts in the second degree is a class D felony.<ref>New York Penal Code, Title H, Article 130, § 130.45 (2009)</ref><br />
<br />
A person is guilty of criminal sexual act in the first degree when he or she engages in oral sexual conduct or anal sexual conduct with another person: 1) by forcible compulsion 2) who is incapable of consent by reason of being physically helpless 3) who is less than eleven years old or 4) who is less than thirteen years old and the actor is eighteen years old or more. This crime is a class B felony.<ref>New York Penal Code, Title H, Article 130, § 130.50 (2009)</ref><br />
<br />
'''Maryland'''<br />
<br />
Under the Maryland Criminal Code section 3-321, the crime of forced sodomy is punishable by imprisonment for up to ten years.<ref>Maryland Criminal Code, § 3-321 (2002)</ref><br />
<br />
==Common Defenses==<br />
<br />
Depending on the sodomy statute and the specific situation of a case, consent may sometimes be a defense to the charge of sodomy (i.e. consent is usually not a defense when the sodomy charge involves a minor). Mental disability and irresistible insane impulse are defenses to sodomy. The theory behind the mental disability defense is that an individual is unable to comprehend the nature and consequences of the act.<ref>Jane E. Lehman, Sodomy- Corpus Juris Secundum, Nov. 2010</ref><br />
<br />
==Foreign Jurisdictions==<br />
<br />
'''Burma/Myanmar'''<br />
<br />
Section 377 of the Burmese Criminal Code does not explicitly mention sodomy, but does prohibit "unnatural offenses," meaning the voluntarily carnal knowledge of man, woman, or animal that is against the "order of nature." This crime is punishable by imprisonment and fines.<ref>http://www.blc-burma.org/html/myanmar%20penal%20code/mpc.html</ref><br />
<br />
'''Uganda'''<br />
<br />
Uganda also does not have a legal provision that specifically mentions sodomy, but it does have a section of its criminal code that bans “carnal knowledge of any person against the order of nature." If charged with this crime, an individual may be sentenced to life imprisonment.<ref>http://www.amnesty.org/en/library/asset/POL30/003/2008/en/d77d0d58-4cd3-11dd-bca2-bb9d43f3e059/pol300032008eng.html#sdendnote48anc</ref><br />
<br />
----<br />
See [[Crimes]]<br />
<br />
==Notes==<br />
<references></div>Durankar