Difference between revisions of "Right to Confront Witnesses"

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'''Table of Contents'''
 
'''Table of Contents'''
  
===Rights with Police ===
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== Rights/ Protections from Police ==
 
* [[Arrest]]
 
* [[Arrest]]
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* [[Confessions]]
 +
* [[Pretrial Identification]]
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* [[Right to Counsel]]
 
* [[Right to Silence]]
 
* [[Right to Silence]]
 
* [[Search and Seizure]]
 
* [[Search and Seizure]]
* [[Right to Counsel]]
 
* [[Confessions]]
 
* [[Pretrial Identification]]
 
  
===Rights at Detention===
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== Rights during Detention ==
 +
* [[Freedom from Punishment]]
 
* [[Right to Counsel]]
 
* [[Right to Counsel]]
 
* [[Right to Habeas Corpus]]
 
* [[Right to Habeas Corpus]]
* [[Right to be free of punishment]]
 
 
* Right to medical care
 
* Right to medical care
  
===Rights at Trial===
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== Rights at Trial ==
* [[Right to a Fair Trial]]
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* [[Double Jeopardy]]
* [[Right to Notice of Charges]]
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* [[Legality Principle]]
* Right to Trial by Jury
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* [[Presumption of Innocence]]
 
* [[Right to Compulsory Process]]
 
* [[Right to Compulsory Process]]
 
* [[Right to Confront Witnesses]]
 
* [[Right to Confront Witnesses]]
 +
* [[Right to Counsel (Trial)| Right to Counsel]]
 +
* [[Right to Fair Trial]]
 +
* [[Right to Notice of Charges]]
 
* [[Right to a Speedy Trial]]
 
* [[Right to a Speedy Trial]]
* [[Right to Counsel (Trial)| Right to Counsel]]
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* Right to Trial by Jury
* [[Presumption of Innocence]]
 
* [[Double Jeopardy]]
 
 
 
===Sentencing===
 
  
* Right to sentence free of torture
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== Sentencing ==
* [[Right to sentence without cruel or unusual punishment]]
 
 
* [[Death Sentence]]
 
* [[Death Sentence]]
* Right to fines that are not excessive
 
 
* [[Ex Post Facto Punishment]]
 
* [[Ex Post Facto Punishment]]
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* [[Freedom from Cruel or Unusual Punishment]]
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* Freedom from Torture
 
* [[Right to Appeal]]
 
* [[Right to Appeal]]
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* Right Not to be Fined Excessively
  
===Rights in Prison===
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== Rights in Prison ==

Revision as of 13:25, 1 June 2010

Background

In an adversarial system, the right to confrontation is related to the defendant's right to cross-examination but may, in fact, be even broader. In certain instances it may prevent the prosecution from using evidence, such as sworn testimony, obtained in violation of the defendant's right to confront the witness.

International Sources

International Covenant on Civil and Political Rights

Article 14 (3) -

"In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing; (c) To be tried without undue delay;(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;(e) To examine, or have examined, the witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;(f) To have the free assistance of an interpreter if he cannot understand or speak the language used in court;(g) Not to be compelled to testify against himself or to confess guilt."


This right is an essential element of the principle of equality of arms. The terms 'to examine, or have examined' should be seen as a recognition of the two main systems of criminal justice, i.e the inquisitorial and accusatorial system. It must be noted, that according to this Article, the defense does not have an unlimited right to obtain the compulsory attendance of witnesses for the defendant, but only 'under the same conditions' as witnesses against the defendant. This restriction applies only to the defense, not the prosecution.

Furthermore, Article 14(3)(e) has been interpreted as meaning that the prosecution must inform the defense as to the witnesses they are planning to call at trial within a reasonable time before the trial, in order for the defense to have time to prepare their defense.

To prevent a violation of a defendant's right to examine and have examined witnesses against him, courts should scrutinize claims of possible reprisals and only allow the removal of defendants from the courtroom in truly exceptional and valid occasions. In no case may a witness be examined in the absence of both the defense counsel and defendant. in addition, the use of the testimony of anonymous witnesses at trial is considered impermissible, as it is seen as a violation of the defendant's right under Article 14(3)(e).

Regional Instruments

American Convention on Human Rights

Article 8 (2) (f)-

Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees...(f) the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts;

European Convention on Human Rights

Article 6 (3) (d)-

Everyone charged with a criminal offence has the following minimum rights:...(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

Examples of the Right to Confront Witnesses

Kenya

Constitution

  • 77(2) Every person who is charged with a criminal offence (e) shall be afforded facilities to examine in person or by his legal representative the witnesses called by the prosecution before the court and to obtain the attendance and carry out the examination of witnesses to testify on his behalf before the court on the same conditions as those applying to witnesses called by the prosecution.

Tanzania

Criminal Procedure Act (1985)

  • 295 (2) The accused shall not be entitled as of right to have any witness summoned other than the witnesses whose names and address were given by him to the magistrate at the committal proceedings, but any subordinate court may, after committal for trial and before the trial begins, and the court of trial may, either before or during the trial, issue a summons for the attendance of any person as a witness for the defence if the court is satisfied that the evidence is in any way material to the case.

Uganda

Constitution

  • 28(3) Every person who is charged with a criminal offence shall (g) be afforded facilities to examine witnesses and to obtain the attendance of other witnesses before the court.

Rights of the accused

Table of Contents

Rights/ Protections from Police

Rights during Detention

Rights at Trial

Sentencing

Rights in Prison