Criminal Defense Wiki - User contributions [en]

Kenya

2011-05-27T09:03:19Z

Aellis:

{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"
|-
|<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;">EAST AFRICA CRIMINAL DEFENSE MANUAL</h2>
''COMING SOON''

<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>
*[[THE CONSTITUTION OF THE REPUBLIC OF KENYA]]
*[http://www.kenyalaw.org/kenyalaw/klr_app/frames.php Kenyalaw.org]

<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>
*[http://www.lsk.or.ke/ Law Society of Kenya]
*[[Basic Legal Rights in Kenya]]
*[http://caselaw.ihrda.org African Human Rights Case Law Analyser]
*[[Lexique Des Termes Juridiques (Anglais-Français)]]
*[[Lexique Des Termes Juridiques (Français-Anglais)]]
*[[Media:ACHPR_PrinciplesandGuidelines_FairTrial.pdf | Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa]]
<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>
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]
|}

==Background==

Fossils found in Kenya reveal that early humans may have originated in the area as many as 20 million years ago.<ref>US State Department, available at www.state.govr/pa/ei/bgn</ref> Around the first century, Arab traders initially colonized present day Kenya, but where displaced by the first Europeans explorers in 1498 (US State Department). In 1895, Kenya was included in Britain’s East African Protectorate and eventually became a British colony in 1920 (US State Department). From 1952-1959, Kenya was placed under a state of emergency due to the Mau Mau uprising (US State Department). The uprising against British rule took place among the Kikuyu people and marked the beginning of greater African participation in politics (US State Department). On December 12, 1963 Kenya became an independent state and joined the British Commonwealth in 1964. <ref>US State Department, available at www.state.gov/pa/ei/bgn</ref> From 1969-1982, Kenya was a one-party state under the leadership of President Moi and the African National Union party. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref> Moi only ceded the presidency in 2002 when the country saw its first free and fair elections (World Factbook). In 2007, Kenya experienced two months of political violence sparked by allegations of electoral fraud (World Factbook). Around 1,500 Kenyans were killed and UN talks eventually organized a power sharing government (World Factbook). The capitol of Kenya is Nairobi and the official languages of the country are English and Kiswahili (World Factbook). 22% of the population is of the Kikuyu tribe, 14% is Luhya, 13% is Luo, 12% is Kalenjin, 11% is Kamba, 6% is Kisii, 6% is Meru, 15% are from other African tribes, and 1% are non-African (World Factbook). 45% of the population identifies as Protestant, 33% as Roman Catholic, 10% as Muslim, 10% have indigenous beliefs, and 2% adhere to some other form of religion. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref>

==Type of system==

Elements of Kenyan law are based on Kenyan statutory law, Kenyan and English common law, tribal law, and Islamic law (CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook). The courts of Kenya are: the Court of Appeal, the High Court, and the Subordinate Courts. The Court of Appeal is the highest court and tries both civil and criminal cases. The Court is presided over by the Judges of Appeal who are directly appointed by the president. The High Court is presided over High Court Judges who are also appointed by the president. The High Court has unlimited jurisdiction in civil cases, but only tries criminal cases of murder and treason. The Subordinate Courts’ jurisdiction is determined by geographical and regional location and the courts are presided over by magistrates. The Subordinate Courts are comprised of Kahdi’s Courts, the Children’s Court, Tribunals, the Industrial Court, and Rent Tribunals. <ref>http://www.nyulawglobal.org/globalex/Kenya</ref>

==Source of defendants’ rights==

The Kenyan Constitution guarantees defendants certain rights. For example, the Constitution guarantees the right to a fair trial, the right to counsel, freedom from torture, cruel, or degrading treatment, the right to freedom, and the presumption of innocence.

==Pre-trial phase==

Article 29(a) of the Constitution states that all individuals have the right to freedom and security and may not be arbitrarily deprived of their freedom. All arrests must be made with a warrant that conforms to Kenyan legal standards. Section 29 of the Kenyan Criminal Procedure Code outlines circumstances in which a police officer may make an arrest without a warrant. Article 29(c) of the Constitution forbids the use of violence in making arrests. The Criminal Procedure Code states that only the amount of restraint necessary to prevent escape is allowed during an arrest. An arrest may be challenged, therefore, if these regulations are violated. Section 108 of the Criminal Procedure Code states that all individuals who are arrested must be brought before a court promptly.

Article 51 of the Constitution states that all those held in detention are guaranteed the fundamental rights awarded in the Kenyan Bill of Rights. Kenyan law exercises two mechanisms in order to reduce pre-trial detention: the granting of bail and the requirement that a defendant be released immediately if he is not charged within the legal time limit. Article 49 of the Constitution states that a defendant must be informed of the reason for the detention or be released by their first court appearance. Section 36 of the Criminal Procedure Code provides that all defendants accused of non-serious crimes must be released on bail if it is not possible to bring them before a court within twenty-four hours of their arrest.

Confessions that are voluntarily made are admissible as evidence in court. Article 49(1)b of the Constitution states that a defendant has the right to remain silent and Article 49(1)d states that no defendant should be made to make a confession that may be used as evidence. Article 49(1) says that all defendants must be informed of their right to remain silent, in a language that they understand. Therefore, confessions may be admissible if the defendant was not notified of their right to silence, if the confession was obtained under torture, and if the confession was not made to an officer of sufficient rank.

Article 49(c) of the Constitution states that a suspect must be informed of his right to counsel and be given the opportunity to communicate with an individual who may provide assistance or advocacy.

==Court procedures==

Article 50 of the Constitution guarantees the right to a fair trial. The article further outlines that all have the right to be presumed innocent, to be informed of the charges brought against them, to have adequate resources to defend themselves, to have a public trial, to have a speedy trial, to be present at the trial, and to be informed of their right to counsel. Furthermore, the Constitution allows for the defendant to have access to evidence held by the prosecution, the rights to challenge the evidence, to refuse giving self incriminating evidence, to have an interpreter, and to appeal the decision.

Article 50(2)(o) of the Constitution and Sections 138-142 of the Criminal Procedure Code protect defendants from double jeopardy. Article 50(2)a of the Constitution guarantees that a defendant is presumed innocent until proven guilty. Article 50(1)(k) of the Constitution provides that all have the right to offer or challenge evidence. The defendant has the additional right to confront witnesses and has access to evidence held by the prosecution.

According to the principles of the International Covenant on Civil and Political Rights, all individuals must have a fair, public trial that is presided over by an independent judiciary. Article 166(2)(c) of the Constitution further ensures that all judges have high moral character, integrity, and impartiality.

Before a sentence is passed down, Kenyan gives the defendant the right to present the court with mitigating factors that may lead the court to deliver a less harsh sentence. Section 329 of the Criminal Procedure Code additionally allows for victim impact sentences to be made.

Armed robbery, murder, and treason are the only crimes in Kenya that are punishable with the death sentence. Defendants that were under the age of eighteen at the time that the crime was committed cannot be punished by the death sentence. All defendants who are given the death sentence are entitled by Criminal Procedure Code Section 330 to the right to be informed by the court of their right to appeal the sentence. If the court does not notify the defendant of this right, this may provide the defense the grounds to have the sentence

All defendants are ensured the ability to appeal a sentence by Article 50(2)(q) of the Constitution. The defendant only has the right to appeal, however, when he has been convicted and does not have the right to appeal if he pleads guilty.

==References==

<references/>
-----
See [[Criminal Justice Systems Around the World]]
<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>
*43.4% of prisoners in Kenya are pre-trial detainees.
*Prisons in Kenya are currently at 223.3 percent capacity.
==Notes==
<references/>
{{Languages|Kenya}}
__NOTOC__

Kenya

2011-05-27T08:59:42Z

Aellis:

{| style="float: right; padding:10px; margin:5px 0px 20px 20px; width: 280px; border: 1px solid darkblue"
|-
|<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;">EAST AFRICA CRIMINAL DEFENSE MANUAL</h2>
''COMING SOON''

<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>
*[[THE CONSTITUTION OF THE REPUBLIC OF KENYA]]
*[http://www.kenyalaw.org/kenyalaw/klr_app/frames.php Kenyalaw.org]

<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>
*[http://www.lsk.or.ke/ Law Society of Kenya]
*[[Basic Legal Rights in Kenya]]
*[http://caselaw.ihrda.org African Human Rights Case Law Analyser]
*[[Lexique Des Termes Juridiques (Anglais-Français)]]
*[[Lexique Des Termes Juridiques (Français-Anglais)]]
*[[Media:ACHPR_PrinciplesandGuidelines_FairTrial.pdf | Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa]]
<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>
* [http://elearning.ibj.org eLearning Courses for Criminal Defense lawyers]
|}

==Background==

Fossils found in Kenya reveal that early humans may have originated in the area as many as 20 million years ago (US State Department, available at www.state.govr/pa/ei/bgn). Around the first century, Arab traders initially colonized present day Kenya, but where displaced by the first Europeans explorers in 1498 (US State Department). In 1895, Kenya was included in Britain’s East African Protectorate and eventually became a British colony in 1920 (US State Department). From 1952-1959, Kenya was placed under a state of emergency due to the Mau Mau uprising (US State Department). The uprising against British rule took place among the Kikuyu people and marked the beginning of greater African participation in politics (US State Department). On December 12, 1963 Kenya became an independent state and joined the British Commonwealth in 1964 (US State Department, available at www.state.gov/pa/ei/bgn). From 1969-1982, Kenya was a one-party state under the leadership of President Moi and the African National Union party (CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook). Moi only ceded the presidency in 2002 when the country saw its first free and fair elections (World Factbook). In 2007, Kenya experienced two months of political violence sparked by allegations of electoral fraud (World Factbook). Around 1,500 Kenyans were killed and UN talks eventually organized a power sharing government (World Factbook). The capitol of Kenya is Nairobi and the official languages of the country are English and Kiswahili (World Factbook). 22% of the population is of the Kikuyu tribe, 14% is Luhya, 13% is Luo, 12% is Kalenjin, 11% is Kamba, 6% is Kisii, 6% is Meru, 15% are from other African tribes, and 1% are non-African (World Factbook). 45% of the population identifies as Protestant, 33% as Roman Catholic, 10% as Muslim, 10% have indigenous beliefs, and 2% adhere to some other form of religion (CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook).

==Type of system==

Elements of Kenyan law are based on Kenyan statutory law, Kenyan and English common law, tribal law, and Islamic law (CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook). The courts of Kenya are: the Court of Appeal, the High Court, and the Subordinate Courts. The Court of Appeal is the highest court and tries both civil and criminal cases. The Court is presided over by the Judges of Appeal who are directly appointed by the president. The High Court is presided over High Court Judges who are also appointed by the president. The High Court has unlimited jurisdiction in civil cases, but only tries criminal cases of murder and treason. The Subordinate Courts’ jurisdiction is determined by geographical and regional location and the courts are presided over by magistrates. The Subordinate Courts are comprised of Kahdi’s Courts, the Children’s Court, Tribunals, the Industrial Court, and Rent Tribunals (http://www.nyulawglobal.org/globalex/Kenya)

==Source of defendants’ rights==

The Kenyan Constitution guarantees defendants certain rights. For example, the Constitution guarantees the right to a fair trial, the right to counsel, freedom from torture, cruel, or degrading treatment, the right to freedom, and the presumption of innocence.

==Pre-trial phase==

Article 29(a) of the Constitution states that all individuals have the right to freedom and security and may not be arbitrarily deprived of their freedom. All arrests must be made with a warrant that conforms to Kenyan legal standards. Section 29 of the Kenyan Criminal Procedure Code outlines circumstances in which a police officer may make an arrest without a warrant. Article 29(c) of the Constitution forbids the use of violence in making arrests. The Criminal Procedure Code states that only the amount of restraint necessary to prevent escape is allowed during an arrest. An arrest may be challenged, therefore, if these regulations are violated. Section 108 of the Criminal Procedure Code states that all individuals who are arrested must be brought before a court promptly.

Article 51 of the Constitution states that all those held in detention are guaranteed the fundamental rights awarded in the Kenyan Bill of Rights. Kenyan law exercises two mechanisms in order to reduce pre-trial detention: the granting of bail and the requirement that a defendant be released immediately if he is not charged within the legal time limit. Article 49 of the Constitution states that a defendant must be informed of the reason for the detention or be released by their first court appearance. Section 36 of the Criminal Procedure Code provides that all defendants accused of non-serious crimes must be released on bail if it is not possible to bring them before a court within twenty-four hours of their arrest.

Confessions that are voluntarily made are admissible as evidence in court. Article 49(1)b of the Constitution states that a defendant has the right to remain silent and Article 49(1)d states that no defendant should be made to make a confession that may be used as evidence. Article 49(1) says that all defendants must be informed of their right to remain silent, in a language that they understand. Therefore, confessions may be admissible if the defendant was not notified of their right to silence, if the confession was obtained under torture, and if the confession was not made to an officer of sufficient rank.

Article 49(c) of the Constitution states that a suspect must be informed of his right to counsel and be given the opportunity to communicate with an individual who may provide assistance or advocacy.

==Court procedures==

Article 50 of the Constitution guarantees the right to a fair trial. The article further outlines that all have the right to be presumed innocent, to be informed of the charges brought against them, to have adequate resources to defend themselves, to have a public trial, to have a speedy trial, to be present at the trial, and to be informed of their right to counsel. Furthermore, the Constitution allows for the defendant to have access to evidence held by the prosecution, the rights to challenge the evidence, to refuse giving self incriminating evidence, to have an interpreter, and to appeal the decision.

Article 50(2)(o) of the Constitution and Sections 138-142 of the Criminal Procedure Code protect defendants from double jeopardy. Article 50(2)a of the Constitution guarantees that a defendant is presumed innocent until proven guilty. Article 50(1)(k) of the Constitution provides that all have the right to offer or challenge evidence. The defendant has the additional right to confront witnesses and has access to evidence held by the prosecution.

According to the principles of the International Covenant on Civil and Political Rights, all individuals must have a fair, public trial that is presided over by an independent judiciary. Article 166(2)(c) of the Constitution further ensures that all judges have high moral character, integrity, and impartiality.

Before a sentence is passed down, Kenyan gives the defendant the right to present the court with mitigating factors that may lead the court to deliver a less harsh sentence. Section 329 of the Criminal Procedure Code additionally allows for victim impact sentences to be made.

Armed robbery, murder, and treason are the only crimes in Kenya that are punishable with the death sentence. Defendants that were under the age of eighteen at the time that the crime was committed cannot be punished by the death sentence. All defendants who are given the death sentence are entitled by Criminal Procedure Code Section 330 to the right to be informed by the court of their right to appeal the sentence. If the court does not notify the defendant of this right, this may provide the defense the grounds to have the sentence

All defendants are ensured the ability to appeal a sentence by Article 50(2)(q) of the Constitution. The defendant only has the right to appeal, however, when he has been convicted and does not have the right to appeal if he pleads guilty.

-----
See [[Criminal Justice Systems Around the World]]
<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>
*43.4% of prisoners in Kenya are pre-trial detainees.
*Prisons in Kenya are currently at 223.3 percent capacity.
==Notes==
<references/>
{{Languages|Kenya}}
__NOTOC__

Austria

2011-05-06T09:36:26Z

Aellis:

==Background==

The Republic of Austria was once the epicenter of the all powerful Austro-Hungarian Empire, which can be dated back to 976 AD<ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref>. Austria was only reduced to its current size after its defeat in World War I (World Factbook). In 1938, Austria was annexed by Nazi Germany and saw its population suffer heavy losses during the height of World War II (World Factbook). In 1945, Austria was liberated and occupied by Allied forces for nearly ten years before the State Treaty of 1955 ended occupation, recognized Austrian independence, and prohibited Austrian re-unification with Germany (World Factbook). Austria has additionally adopted a constitutional law upholding neutrality, an issue that has raised concerns in the country since its admission to the European Union in 1995 (World Factbook).Austria’s current chief of state is President Heinz Fischer and the current head of state is Chancellor Werner Faymann (World Factbook). In 2008, the country installed a coalition government comprising of the center-left Social Democrats and the conservative People’s Party<ref>Austria Country Profile, available at www.news.bbc.co.uk</ref> Austria has weathered the recent financial crisis relatively better than its European neighbors, although domestic austerity measures have left the population bitterly opposed to further cutbacks (Austria Country Profile). The capitol of Austria is Vienna and the official national language is German (World Factbook). Nearly 91.1% of the population is ethnic Austria, while 4% are former Yugoslavs, 1.6% are Turks, and .9% are German (World Factbook). Approximately 73.6% of Austrians identify as Roman Catholic, 4.7% are Protestant, and 4.2% are Muslim. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref>

==Type of system==

Austria has a civil law system that has origins in Roman law.<ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref> The Austrian court system is five-tiered and is divided into the courts of public law jurisdiction and the courts of ordinary jurisdiction<ref>The Austrian Legal System and Laws: A Brief Overview, available at www.nyulawglobal.org/Globalex/Austria</ref>. The courts of public law jurisdiction are comprised of the Constitutional Court and the Administrative Courts (The Austrian Legal System and Laws: A Brief Overview). The Constitutional Court is assigned with protecting the rights of the citizens and ensuring that all laws are in accordance with the Austrian Constitution (The Austrian Legal System and Laws: A Brief Overview). The Administrative Courts are responsible for reviewing the decisions of the other courts and legal authorities (The Austrian Legal System and Laws: A Brief Overview). The courts of public law jurisdiction are comprised of the courts of first instance, the courts of second instance, and the Supreme Court (The Austrian Legal System and Laws: A Brief Overview). The courts of first instance are either regional or district courts that are usually presided over by a single judge (The Austrian Legal System and Laws: A Brief Overview). The courts of second instance are courts that preside over appeals (The Austrian Legal System and Laws: A Brief Overview). In the event that a case was tried in the District Courts, the appeal will be brought to the Regional Courts (The Austrian Legal System and Laws: A Brief Overview). If the case was tried in the Regional Courts, the appeal will be brought to the Provincial Courts (The Austrian Legal System and Laws: A Brief Overview). Finally, the Supreme Court is the highest court in all civil and criminal cases and hears trials only at last instance.<ref>The Austrian Legal System and Laws: A Brief Overview, available at www.nyulawglobal.org/Globalex/Austria</ref>

==Source of defendants’ rights==

The Austrian Federal Constitution, the Austrian Basic Law on the Rights of the National, and the Austrian Federal Constitutional Law on the Protection of Personal Liberty provide defendants with certain rights. The Austrian Federal Constitution upholds the basic rights of all Austrians in regards to education, civil rights, protection, etc. <ref>Austrian Federal Constitution</ref>The Basic Law on the Rights of the National is more extensive and protects rights to privacy of the home, property, communication, and movement. <ref>Austrian Basic Law on the Rights of the National</ref>Finally, the Austria Federal Constitutional Law on the Protection of Personal Liberty protects all individuals from unlawful detention, ensures that prisoners are treated with dignity and respect, guarantees liberty and security, outlines the rights of the individual at the time of arrest, and provides all defendants with the right to counsel.<ref>Austrian Federal Constitutional Law on the Protection of Personal Liberty</ref>

==Pre-trial phase==

The Austrian Federal Constitutional Law on the Protection of Personal Liberty Article 4(1) states that an arrest may only be made with a judicial order. Under exceptional circumstances, the order may be obtained 24 hours after the arrest has been made. <ref>Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 4(1)</ref> At the time of arrest, the suspect has the right to be immediately notified of the charges brought before him in a language that he understands. <ref>Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 4(6)</ref> The suspect also has the right to request that a relative and/or legal representative be notified at the time that the arrest is made. <ref>Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 4(7)</ref>

The Austrian Federal Constitutional Law on the Protection of Personal Liberty states that no person may be unlawfully detained or arrested. <ref>Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 1(2)</ref> Whoever is arrested or detained must be treated with human dignity and respect. <ref>Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 1(4)</ref> Austrian law states that no person may be detained for longer than 48 hours before being brought before a competent court. <ref>Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 4(2)</ref> Additionally, investigative detention periods may not exceed two years.<ref>US State Department 2010 Human Rights Report: Austria, available at www.state.gov/g/drl/rls/hrrpt/2010</ref>

Suspects are not required to answer questions during an interrogation without an attorney present. In reality, however, police officers often question suspects immediately after arrest even if their attorney is not present.<ref> US State Department 2010 Human Rights Report: Austria, available at www.state.gov/g/drl/rls/hrrpt/2010</ref> When the suspect is brought before the court, a judge must interrogate him without delay and inquire into the grounds of his detention.<ref>Austrian Federal Constitutional Law on the Protection of Personal Liberty, Article 4(3)</ref>

==Court procedures==

In the Austrian court system, all defendants are regarded as equal before the law, are presumed innocent, and have the right to a fair trial before an independent judiciary. All Austrian trials are conducted orally before the public and juries are only used in cases of major criminal offenses. The defendant has the right to be present at all trials, may present witnesses, question witnesses against them or for them, and may provide evidence for their defense. <ref>US State Department 2010 Human Rights Report: Austria, available at www.state.gov./g/drl/rls/hrrpt/2010</ref>

Defendants have only 96 hours after their arrest to contact their lawyers, but legal representation is not required in cases that involve only minor offenses. In the event that the defendant cannot obtain or afford legal counsel, a pro bono lawyer will be assigned to his case in trials that require lawyers. Additionally, the defense has access to all evidence held by the government that is relevant to the case. <ref>US State Department 2010 Human Rights Department Report: Austria, available at www.state.gov/g/drl/rls/hrrpt/2010</ref>

All Austrian lawyers must be registered on a bar association’s list in order to legally practice law. Only lawyers that practice independently may be admitted to the legal profession. As of 2008, there were 5,300 practicing lawyers in Austria. Around 90% were registered European lawyers and 17% were women. <ref>www.ibanet.com</ref>

==References==

<references/>

<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>

*Austria's total prison population is 8,671 with every 103 per every 100,000 people in prison
*23.7% of Austrian prisoners are pre-trial detainees, 2.6% are juveniles, and 45.8% are foreigners
*Austria has 28 prison institutions that have an official capacity of 8,423 prisoners
*The current prison system is at 102.9% capacity

{{Languages|Austria}}

__NOTOC__

Austria

2011-05-06T09:31:22Z

Aellis: Created page with " ==Background== The Republic of Austria was once the epicenter of the all powerful Austro-Hungarian Empire, which can be dated back to 976 AD<ref>CIA World Factbook, avail..."

Criminal Justice Systems Around the World

2011-05-06T09:29:15Z

Aellis:

Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].

==Country Pages==
<div style="float: left; width: 33%">

* Afghanistan
* Algeria
* Angola
* [[Argentina]]
* Armenia
* Australia
*[[Austria]]
* [[Azerbaijan]]
* [[Bangladesh]]
* Belgium
* Benin
* Bolivia
* [[Brazil]]
* [[Brunei]]
* [[Burundi]]
* [[Cameroon]]
*[[Cambodia]]
* [[Canada]]
* Central African Republic
* Chad
* [[Chile]]
*[[China]]
* Colombia
* Côte d'Ivoire
* [[Cuba]]
* Cyprus
* [[Democratic Republic of Congo]]
* Ecuador
* [[Egypt]]
* El Salvador
*[[England and Wales]]
* Ethiopia
* Finland
* [[France]]
** French Guiana
* Georgia
*[[Germany]]
</div><div style="float: left; width: 33%">

* Ghana
* Greece
* Guatemala
* Guinea
* Guinea Bissau
* Guyana
* Haiti
* Hong Kong
*[[India]]
*[[Indonesia]]
*Iran
*Iraq
*Ireland
*Israel
* [[Italy]]
*Jamaica
*[[Japan]]
* Jordan
*[[Kenya]]
*[[Laos]]
* Lebanon
* [[Liberia]]
* Malawi
* [[Malaysia]]
* Mali
*[[Mexico]]
* Mongolia
* Morocco
*[[Myanmar]]
* [[Nepal]]
* Netherlands
*New Zealand
* Nigeria
* North Korea
* Norway

</div><div style="float: left; width: 33%">

* [[Pakistan]]
* Paraguay
* Peru
* Poland
* Romania
* [[Rwanda]]
* Russia
* [[Saudi Arabia]]
* Scotland
* [[Senegal]]
* Serbia
* Sierra Leone
* [[Singapore]]
* [[South Africa]]
*[[South Korea]]
* Spain
*[[Sri Lanka]]
* Sudan
* Suriname
* [[Swaziland]]
* [[Sweden]]
* [[Switzerland]]
* Syria
*[[Tanzania]]
**[[Zanzibar]]
*[[Thailand]]
* Trinidad and Tobago
*[[The Republic of the Philippines]]
*[[Tunisia]]
* Turkey
*[[Uganda]]
* Ukraine
*United Arab Emirates
*[[United States]]
* Uruguay
* Uzbekistan
* [[Venezuela]]
*[[Vietnam]]
*[[Zimbabwe]]

</div>

==Other Countries==
See a country that is not listed here? Email elearning@ibj.org.

South Korea

2011-04-19T12:36:28Z

Aellis:

==Background==

The kingdom of Korea was established around the 7th century and included what is today South and North Korea. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref> In 1905, the Korean peninsula was declared a protectorate of Japan and was annexed by the Japanese in 1910 (World Factbook). It was not until Japan’s surrender at the end of World War II in 1945 that the Republic of Korea (ROK) was created in the southern half of the peninsula and the communist People’s Democratic Republic of Korea (DPRK) was established in the north (World Factbook). Not long after, the United States and the United Nations fought alongside the South in the Korean War (1950-1953), a war intended to defend the South from its communist neighbor (World Factbook). The war ended in 1953 with the creation of a demilitarized zone at the 38th parallel. This demarcation line has since divided the peninsula between the ROK and the DPRK (World Factbook). Since the war, South Korea has continued to achieve rapid economic development in comparison to the North and is now considered a modern democracy (World Factbook). Tensions between the North and the South are still strong, however, and relations have been seriously damaged due to Northern attacks on Southern ships and civilians (World Factbook). The capitol of South Korea is Seoul and the current president is Lee Myung-bak (World Factbook). Almost 100% of the population is ethnic Korean, with the exception of 20,000 Chinese, and the national language is Korean (World Factbook). 26.3% of the population is Christian, 23.2% is Buddhist, and 49.3% have no religious identity. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref>

==Type of system==

The South Korean legal system is a combination of European civil law, Anglo-American law, and Chinese principles. <ref>CIA Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref> South Korea has six courts: the Supreme Court, the High Courts, the District Courts, the Patent Court, the Family Court, and the Administrative Court. The Supreme Court, the High Courts, and the District Courts are part of the basic three-tiered system. The Patent Court is on the same level as the High Courts, and the Family and Administrative Courts are on the same level as the District Courts. There is also a European-style Constitutional Court that rules on the constitutionality of laws, impeachments, the dissolution of political parties, etc. <ref>http://www.nyulawglobal.org/Globalex/South_Korea.htm#_Judicial_System</ref>

==Source of defendants’ rights==

The majority of the defendants’ rights are protected in the Constitution of the Republic of Korea. The Constitution states that all individuals have the right to dignity, proclaims that human rights are inviolable, prohibits unlawful arrests, detentions, and seizures, forbids the use of torture, guarantees the immediate right to legal counsel, and awards the right to a fair and speedy trial. <ref>Constitution of the Republic of Korea, Chapter II</ref>

==Pre-trial phase==

The Constitution of the Republic of Korea states that at the time of arrest, the suspect has the right to be informed of the reason for his arrest and his right to prompt legal counsel. The suspect’s family or relatives must also be informed of the arrest, the reason for the charges, and the time and place that the arrest took place. <ref>Constitution of the Republic of Korea, Article 12</ref> All arrests must be made with a warrant issued by a judge. If the arrest is made without a warrant, the prosecutor must file a request for a warrant within 48 hours, or the suspect must be released. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

The Constitution states that all people are protected from intrusions into their homes. In the case of a search and seizure, a warrant issued by a judge upon a prosecutor’s request must be presented. <ref>Constitution of the Republic of Korea, Article 16</ref> The Constitution also declares that no person may be unlawfully detained and that a warrant must be issued by a judge in all cases of arrest, detention, and search or seizure.<ref>Constitution of the Republic of Korea, Article 12</ref> The law also states that pre-trial detention may not exceed 20 days, with a possible extension of only 10 days. <ref>US Department of State Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

Once crime has been committed, a judicial police officer completes an investigation and transfers the case to a prosecutor. The prosecutor may then decide whether to continue investigation or to end the case. South Korean law states that the police may not interrogate a suspect for longer than six hours if he has voluntarily submitted to questioning. An individual also has the right to legal representation during the interrogation, unless the lawyer impedes the investigation in any way. <ref> US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

The Constitution of the Republic of Korea states that all individuals have the right to immediate legal counsel upon arrest or detention. In the event that the defendant cannot secure or afford his own legal representation, the government of Korea must provide him with a lawyer. <ref>Constitution of the Republic of Korea, Article 12</ref> Additionally, if the defendant is a minor, seventy years or older, or has a mental illness, the court is automatically required to provide them with a defense lawyer. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

==Court procedures==

Trials involving crimes that are punishable by capital punishment, life imprisonment, or a sentence of one-year imprisonment or more are tried by a panel of three judges. All other cases are tried by a single judge. The prosecutor, as an agent of the government, introduces evidence to the court, questions the defendant, examines the witnesses, and carries out other duties. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

All South Korean trials are open to the public and have public jury systems, although jury verdicts are not final. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref> South Korean trials provide defendants with a number of rights, including the presumption of innocence, protection from self incrimination, the right to a speedy trial, and protection from double jeopardy. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

Both the defense and the prosecution have the right to call witnesses to the stand and to question them. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref> The defense has the right to access relevant evidence that is held by the police. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl.lrs/hrrpt/2010</ref>

In order to become a lawyer in South Korea, a person must pass the National Judicial Examination and participate in a two year course at the Judicial Research and Training Institute. After completion of these two components, one may become a judge, prosecutor, or privately practicing attorney. <ref>www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

The Constitution of the Republic of Korea states that anyone who receives bodily injuries due to a crime may receive compensation from the state. <ref>Constitution of the Republic of Korea, Article 30</ref> The victims is also allowed the right to make a statement at the trial of the offender. <ref>Constitution of the Republic of Korea, Article 27</ref>

Both the defendant and the prosecution have the right to appeal to an appellate court. Appeals of trials heard before a three judge panel are heard by the High Court. All other appeals are heard by the appellate division of the District Court. The prosecutor and the defendant have the right to appeal to the Supreme Court when they are not satisfied with the verdicts of the lower courts. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

==References==

<references/>

<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>

*South Korea has a total prison population of 47,514 with 98 out of every 100,000 people in prison
*31.8% of South Korean prisoners are pre-trial detainees, 5.4% are women, and 1% are juveniles
*South Korea has a total of 50 prison institutions: thirty-six correctional institutions, eleven detention centers, and three branch office
*The official capacity of the South Korean prison system is 44,430 and capacity is currently at 106.9%

{{Languages|South Korea}}

__NOTOC__

South Korea

2011-04-14T13:00:43Z

Aellis:

==Background==

The kingdom of Korea was established around the 7th century and included what is today South and North Korea. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref> In 1905, the Korean peninsula was declared a protectorate of Japan and was annexed by the Japanese in 1910 (World Factbook). It was not until Japan’s surrender at the end of World War II in 1945 that the Republic of Korea (ROK) was created in the southern half of the peninsula and the communist People’s Democratic Republic of Korea (DPRK) was established in the north (World Factbook). Not long after, the United States and the United Nations fought alongside the South in the Korean War (1950-1953), a war intended to defend the South from its communist neighbor (World Factbook). The war ended in 1953 with the creation of a demilitarized zone at the 38th parallel. This demarcation line has since divided the peninsula between the ROK and the DPRK (World Factbook). Since the war, South Korea has continued to achieve rapid economic development in comparison to the North and is now considered a modern democracy (World Factbook). Tensions between the North and the South are still strong, however, and relations have been seriously damaged due to Northern attacks on Southern ships and civilians (World Factbook). The capitol of South Korea is Seoul and the current president is Lee Myung-bak (World Factbook). Almost 100% of the population is ethnic Korean, with the exception of 20,000 Chinese, and the national language is Korean (World Factbook). 26.3% of the population is Christian, 23.2% is Buddhist, and 49.3% have no religious identity. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref>

==Type of system==

The South Korean legal system is a combination of European civil law, Anglo-American law, and Chinese principles. <ref>CIA Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref> South Korea has six courts: the Supreme Court, the High Courts, the District Courts, the Patent Court, the Family Court, and the Administrative Court. The Supreme Court, the High Courts, and the District Courts are part of the basic three-tiered system. The Patent Court is on the same level as the High Courts, and the Family and Administrative Courts are on the same level as the District Courts. There is also a European-style Constitutional Court that rules on the constitutionality of laws, impeachments, the dissolution of political parties, etc. <ref>http://www.nyulawglobal.org/Globalex/South_Korea.htm#_Judicial_System</ref>

==Source of defendants’ rights==

The majority of the defendants’ rights are protected in the Constitution of the Republic of Korea. The Constitution states that all individuals have the right to dignity, proclaims that human rights are inviolable, prohibits unlawful arrests, detentions, and seizures, forbids the use of torture, guarantees the immediate right to legal counsel, and awards the right to a fair and speedy trial. <ref>Constitution of the Republic of Korea, Chapter II</ref>

==Pre-trial phase==

The Constitution of the Republic of Korea states that at the time of arrest, the suspect has the right to be informed of the reason for his arrest and his right to prompt legal counsel. The suspect’s family or relatives must also be informed of the arrest, the reason for the charges, and the time and place that the arrest took place. <ref>Constitution of the Republic of Korea, Article 12</ref> All arrests must be made with a warrant issued by a judge. If the arrest is made without a warrant, the prosecutor must file a request for a warrant within 48 hours, or the suspect must be released. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

The Constitution states that all people are protected from intrusions into their homes. In the case of a search and seizure, a warrant issued by a judge upon a prosecutor’s request must be presented. <ref>Constitution of the Republic of Korea, Article 16</ref> The Constitution also declares that no person may be unlawfully detained and that a warrant must be issued by a judge in all cases of arrest, detention, and search or seizure.<ref>Constitution of the Republic of Korea, Article 12</ref> The law also states that pre-trial detention may not exceed 20 days, with a possible extension of only 10 days. <ref>US Department of State Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

Once crime has been committed, a judicial police officer completes an investigation and transfers the case to a prosecutor. The prosecutor may then decide whether to continue investigation or to end the case. South Korean law states that the police may not interrogate a suspect for longer than six hours if he has voluntarily submitted to questioning. An individual also has the right to legal representation during the interrogation, unless the lawyer impedes the investigation in any way. <ref> US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

The Constitution of the Republic of Korea states that all individuals have the right to immediate legal counsel upon arrest or detention. In the event that the defendant cannot secure or afford his own legal representation, the government of Korea must provide him with a lawyer. <ref>Constitution of the Republic of Korea, Article 12</ref> Additionally, if the defendant is a minor, seventy years or older, or has a mental illness, the court is automatically required to provide them with a defense lawyer. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

==Court procedures==

Trials involving crimes that are punishable by capital punishment, life imprisonment, or a sentence of one-year imprisonment or more are tried by a panel of three judges. All other cases are tried by a single judge. The prosecutor, as an agent of the government, introduces evidence to the court, questions the defendant, examines the witnesses, and carries out other duties. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

All South Korean trials are open to the public and have public jury systems, although jury verdicts are not final. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref> South Korean trials provide defendants with a number of rights, including the presumption of innocence, protection from self incrimination, the right to a speedy trial, and protection from double jeopardy. <US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

Both the defense and the prosecution have the right to call witnesses to the stand and to question them. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref> The defense has the right to access relevant evidence that is held by the police. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl.lrs/hrrpt/2010</ref>

In order to become a lawyer in South Korea, a person must pass the National Judicial Examination and participate in a two year course at the Judicial Research and Training Institute. After completion of these two components, one may become a judge, prosecutor, or privately practicing attorney. <ref>www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

The Constitution of the Republic of Korea states that anyone who receives bodily injuries due to a crime may receive compensation from the state. <ref>Constitution of the Republic of Korea, Article 30</ref> The victims is also allowed the right to make a statement at the trial of the offender. <ref>Constitution of the Republic of Korea, Article 27</ref>

Both the defendant and the prosecution have the right to appeal to an appellate court. Appeals of trials heard before a three judge panel are heard by the High Court. All other appeals are heard by the appellate division of the District Court. The prosecutor and the defendant have the right to appeal to the Supreme Court when they are not satisfied with the verdicts of the lower courts. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

==References==

<references/>

<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>

*South Korea has a total prison population of 47,514 with 98 out of every 100,000 people in prison
*31.8% of South Korean prisoners are pre-trial detainees, 5.4% are women, and 1% are juveniles
*South Korea has a total of 50 prison institutions: thirty-six correctional institutions, eleven detention centers, and three branch office
*The official capacity of the South Korean prison system is 44,430 and capacity is currently at 106.9%

{{Languages|South Korea}}

__NOTOC__

South Korea

2011-04-14T12:57:49Z

Aellis:

==Background==

The kingdom of Korea was established around the 7th century and included what is today South and North Korea. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref> In 1905, the Korean peninsula was declared a protectorate of Japan and was annexed by the Japanese in 1910 (World Factbook). It was not until Japan’s surrender at the end of World War II in 1945 that the Republic of Korea (ROK) was created in the southern half of the peninsula and the communist People’s Democratic Republic of Korea (DPRK) was established in the north (World Factbook). Not long after, the United States and the United Nations fought alongside the South in the Korean War (1950-1953), a war intended to defend the South from its communist neighbor (World Factbook). The war ended in 1953 with the creation of a demilitarized zone at the 38th parallel. This demarcation line has since divided the peninsula between the ROK and the DPRK (World Factbook). Since the war, South Korea has continued to achieve rapid economic development in comparison to the North and is now considered a modern democracy (World Factbook). Tensions between the North and the South are still strong, however, and relations have been seriously damaged due to Northern attacks on Southern ships and civilians (World Factbook). The capitol of South Korea is Seoul and the current president is Lee Myung-bak (World Factbook). Almost 100% of the population is ethnic Korean, with the exception of 20,000 Chinese, and the national language is Korean (World Factbook). 26.3% of the population is Christian, 23.2% is Buddhist, and 49.3% have no religious identity. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref>

==Type of system==

The South Korean legal system is a combination of European civil law, Anglo-American law, and Chinese principles. <ref>CIA Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref> South Korea has six courts: the Supreme Court, the High Courts, the District Courts, the Patent Court, the Family Court, and the Administrative Court. The Supreme Court, the High Courts, and the District Courts are part of the basic three-tiered system. The Patent Court is on the same level as the High Courts, and the Family and Administrative Courts are on the same level as the District Courts. There is also a European-style Constitutional Court that rules on the constitutionality of laws, impeachments, the dissolution of political parties, etc. <ref>http://www.nyulawglobal.org/Globalex/South_Korea.htm#_Judicial_System</ref>

==Source of defendants’ rights==

The majority of the defendants’ rights are protected in the Constitution of the Republic of Korea. The Constitution states that all individuals have the right to dignity, proclaims that human rights are inviolable, prohibits unlawful arrests, detentions, and seizures, forbids the use of torture, guarantees the immediate right to legal counsel, and awards the right to a fair and speedy trial. <ref>Constitution of the Republic of Korea, Chapter II</ref>

==Pre-trial phase==

The Constitution of the Republic of Korea states that at the time of arrest, the suspect has the right to be informed of the reason for his arrest and his right to prompt legal counsel. The suspect’s family or relatives must also be informed of the arrest, the reason for the charges, and the time and place that the arrest took place. <ref>Constitution of the Republic of Korea, Article 12</ref> All arrests must be made with a warrant issued by a judge. If the arrest is made without a warrant, the prosecutor must file a request for a warrant within 48 hours, or the suspect must be released. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

The Constitution states that all people are protected from intrusions into their homes. In the case of a search and seizure, a warrant issued by a judge upon a prosecutor’s request must be presented. <ref>Constitution of the Republic of Korea, Article 16</ref> The Constitution also declares that no person may be unlawfully detained and that a warrant must be issued by a judge in all cases of arrest, detention, and search or seizure.<ref>Constitution of the Republic of Korea, Article 12</ref> The law also states that pre-trial detention may not exceed 20 days, with a possible extension of only 10 days. <ref>US Department of State Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

Once crime has been committed, a judicial police officer completes an investigation and transfers the case to a prosecutor. The prosecutor may then decide whether to continue investigation or to end the case. South Korean law states that the police may not interrogate a suspect for longer than six hours if he has voluntarily submitted to questioning. An individual also has the right to legal representation during the interrogation, unless the lawyer impedes the investigation in any way. <ref> US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

The Constitution of the Republic of Korea states that all individuals have the right to immediate legal counsel upon arrest or detention. In the event that the defendant cannot secure or afford his own legal representation, the government of Korea must provide him with a lawyer. <ref>Constitution of the Republic of Korea, Article 12</ref> Additionally, if the defendant is a minor, seventy years or older, or has a mental illness, the court is automatically required to provide them with a defense lawyer. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

==Court procedures==

Trials involving crimes that are punishable by capital punishment, life imprisonment, or a sentence of one-year imprisonment or more are tried by a panel of three judges. All other cases are tried by a single judge. The prosecutor, as an agent of the government, introduces evidence to the court, questions the defendant, examines the witnesses, and carries out other duties. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

All South Korean trials are open to the public and have public jury systems, although jury verdicts are not final. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref> South Korean trials provide defendants with a number of rights, including the presumption of innocence, protection from self incrimination, the right to a speedy trial, and protection from double jeopardy. <US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

Both the defense and the prosecution have the right to call witnesses to the stand and to question them. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref> The defense has the right to access relevant evidence that is held by the police. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl.lrs/hrrpt/2010</ref>

In order to become a lawyer in South Korea, a person must pass the National Judicial Examination and participate in a two year course at the Judicial Research and Training Institute. After completion of these two components, one may become a judge, prosecutor, or privately practicing attorney. <ref>www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

The Constitution of the Republic of Korea states that anyone who receives bodily injuries due to a crime may receive compensation from the state. <ref>Constitution of the Republic of Korea, Article 30</ref> The victims is also allowed the right to make a statement at the trial of the offender. <ref>Constitution of the Republic of Korea, Article 27</ref>

Both the defendant and the prosecution have the right to appeal to an appellate court. Appeals of trials heard before a three judge panel are heard by the High Court. All other appeals are heard by the appellate division of the District Court. The prosecutor and the defendant have the right to appeal to the Supreme Court when they are not satisfied with the verdicts of the lower courts. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

==References==

<references/>

South Korea

2011-04-14T12:56:00Z

Aellis: Created page with " ==Background== The kingdom of Korea was established around the 7th century and included what is today South and North Korea. <ref>CIA World Factbook, available at www.cia..."

==Background==

The kingdom of Korea was established around the 7th century and included what is today South and North Korea. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref> In 1905, the Korean peninsula was declared a protectorate of Japan and was annexed by the Japanese in 1910 (World Factbook). It was not until Japan’s surrender at the end of World War II in 1945 that the Republic of Korea (ROK) was created in the southern half of the peninsula and the communist People’s Democratic Republic of Korea (DPRK) was established in the north (World Factbook). Not long after, the United States and the United Nations fought alongside the South in the Korean War (1950-1953), a war intended to defend the South from its communist neighbor (World Factbook). The war ended in 1953 with the creation of a demilitarized zone at the 38th parallel. This demarcation line has since divided the peninsula between the ROK and the DPRK (World Factbook). Since the war, South Korea has continued to achieve rapid economic development in comparison to the North and is now considered a modern democracy (World Factbook). Tensions between the North and the South are still strong, however, and relations have been seriously damaged due to Northern attacks on Southern ships and civilians (World Factbook). The capitol of South Korea is Seoul and the current president is Lee Myung-bak (World Factbook). Almost 100% of the population is ethnic Korean, with the exception of 20,000 Chinese, and the national language is Korean (World Factbook). 26.3% of the population is Christian, 23.2% is Buddhist, and 49.3% have no religious identity. <ref>CIA World Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref>

==Type of system==

The South Korean legal system is a combination of European civil law, Anglo-American law, and Chinese principles. <ref>CIA Factbook, available at www.cia.gov/library/publications/the-world-factbook</ref> South Korea has six courts: the Supreme Court, the High Courts, the District Courts, the Patent Court, the Family Court, and the Administrative Court. The Supreme Court, the High Courts, and the District Courts are part of the basic three-tiered system. The Patent Court is on the same level as the High Courts, and the Family and Administrative Courts are on the same level as the District Courts. There is also a European-style Constitutional Court that rules on the constitutionality of laws, impeachments, the dissolution of political parties, etc. <ref>http://www.nyulawglobal.org/Globalex/South_Korea.htm#_Judicial_System</ref>

==Source of defendants’ rights==

The majority of the defendants’ rights are protected in the Constitution of the Republic of Korea. The Constitution states that all individuals have the right to dignity, proclaims that human rights are inviolable, prohibits unlawful arrests, detentions, and seizures, forbids the use of torture, guarantees the immediate right to legal counsel, and awards the right to a fair and speedy trial. <ref>Constitution of the Republic of Korea, Chapter II</ref>

==Pre-trial phase==

The Constitution of the Republic of Korea states that at the time of arrest, the suspect has the right to be informed of the reason for his arrest and his right to prompt legal counsel. The suspect’s family or relatives must also be informed of the arrest, the reason for the charges, and the time and place that the arrest took place. <ref>Constitution of the Republic of Korea, Article 12</ref> All arrests must be made with a warrant issued by a judge. If the arrest is made without a warrant, the prosecutor must file a request for a warrant within 48 hours, or the suspect must be released. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

The Constitution states that all people are protected from intrusions into their homes. In the case of a search and seizure, a warrant issued by a judge upon a prosecutor’s request must be presented. <ref>Constitution of the Republic of Korea, Article 16</ref> The Constitution also declares that no person may be unlawfully detained and that a warrant must be issued by a judge in all cases of arrest, detention, and search or seizure.<ref>Constitution of the Republic of Korea, Article 12</ref> The law also states that pre-trial detention may not exceed 20 days, with a possible extension of only 10 days. <ref>US Department of State Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

Once crime has been committed, a judicial police officer completes an investigation and transfers the case to a prosecutor. The prosecutor may then decide whether to continue investigation or to end the case. South Korean law states that the police may not interrogate a suspect for longer than six hours if he has voluntarily submitted to questioning. An individual also has the right to legal representation during the interrogation, unless the lawyer impedes the investigation in any way. <ref> US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

The Constitution of the Republic of Korea states that all individuals have the right to immediate legal counsel upon arrest or detention. In the event that the defendant cannot secure or afford his own legal representation, the government of Korea must provide him with a lawyer. <ref>Constitution of the Republic of Korea, Article 12</ref> Additionally, if the defendant is a minor, seventy years or older, or has a mental illness, the court is automatically required to provide them with a defense lawyer. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp,/ref>

==Court procedures==

Trials involving crimes that are punishable by capital punishment, life imprisonment, or a sentence of one-year imprisonment or more are tried by a panel of three judges. All other cases are tried by a single judge. The prosecutor, as an agent of the government, introduces evidence to the court, questions the defendant, examines the witnesses, and carries out other duties. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

All South Korean trials are open to the public and have public jury systems, although jury verdicts are not final. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref> South Korean trials provide defendants with a number of rights, including the presumption of innocence, protection from self incrimination, the right to a speedy trial, and protection from double jeopardy. <US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref>

Both the defense and the prosecution have the right to call witnesses to the stand and to question them. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl/lrs/hrrpt/2010</ref> The defense has the right to access relevant evidence that is held by the police. <ref>US State Department Human Rights Report, available at www.state.gov/g/drl.lrs/hrrpt/2010</ref>

In order to become a lawyer in South Korea, a person must pass the National Judicial Examination and participate in a two year course at the Judicial Research and Training Institute. After completion of these two components, one may become a judge, prosecutor, or privately practicing attorney. <ref>www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

The Constitution of the Republic of Korea states that anyone who receives bodily injuries due to a crime may receive compensation from the state. <ref>Constitution of the Republic of Korea, Article 30</ref> The victims is also allowed the right to make a statement at the trial of the offender. <ref>Constitution of the Republic of Korea, Article 27</ref>

Both the defendant and the prosecution have the right to appeal to an appellate court. Appeals of trials heard before a three judge panel are heard by the High Court. All other appeals are heard by the appellate division of the District Court. The prosecutor and the defendant have the right to appeal to the Supreme Court when they are not satisfied with the verdicts of the lower courts. <ref>http://www.moj.go.kr/HP/ENG/eng_02/eng_2040.jsp</ref>

==References==

<references/>

Criminal Justice Systems Around the World

2011-04-14T12:53:26Z

Aellis:

Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].

==Country Pages==
<div style="float: left; width: 33%">

* Afghanistan
* Algeria
* Angola
* [[Argentina]]
* Armenia
* Australia
* [[Azerbaijan]]
* [[Bangladesh]]
* Belgium
* Benin
* Bolivia
* [[Brazil]]
* [[Brunei]]
* [[Burundi]]
* [[Cameroon]]
*[[Cambodia]]
* [[Canada]]
* Central African Republic
* Chad
* [[Chile]]
*[[China]]
* Colombia
* Côte d'Ivoire
* [[Cuba]]
* Cyprus
* [[Democratic Republic of Congo]]
* Ecuador
* [[Egypt]]
* El Salvador
*[[England and Wales]]
* Ethiopia
* Finland
* [[France]]
** French Guiana
* Georgia
*[[Germany]]
</div><div style="float: left; width: 33%">

* Ghana
* Greece
* Guatemala
* Guinea
* Guinea Bissau
* Guyana
* Haiti
* Hong Kong
*[[India]]
*[[Indonesia]]
*Iran
*Iraq
*Ireland
*Israel
* [[Italy]]
*Jamaica
*[[Japan]]
* Jordan
*[[Kenya]]
*[[Laos]]
* Lebanon
* [[Liberia]]
* Malawi
* [[Malaysia]]
* Mali
*[[Mexico]]
* Mongolia
* Morocco
*[[Myanmar]]
* [[Nepal]]
* Netherlands
*New Zealand
* Nigeria
* North Korea
* Norway

</div><div style="float: left; width: 33%">

* [[Pakistan]]
* Paraguay
* Peru
* Poland
* Romania
* [[Rwanda]]
* Russia
* [[Saudi Arabia]]
* Scotland
* Senegal
* Serbia
* Sierra Leone
* [[Singapore]]
* [[South Africa]]
*[[South Korea]]
* Spain
*[[Sri Lanka]]
* Sudan
* Suriname
* [[Swaziland]]
* [[Sweden]]
* [[Switzerland]]
* Syria
*[[Tanzania]]
**[[Zanzibar]]
*[[Thailand]]
* Trinidad and Tobago
*[[The Republic of the Philippines]]
*[[Tunisia]]
* Turkey
*[[Uganda]]
* Ukraine
*United Arab Emirates
*[[United States]]
* Uruguay
* Uzbekistan
* [[Venezuela]]
*[[Vietnam]]
*[[Zimbabwe]]

</div>

==Other Countries==
See a country that is not listed here? Email elearning@ibj.org.

Tunisia

2011-03-31T11:46:15Z

Aellis:

==Background==

The capitol of the Tunisian Republic is located in Tunis, an important port city that has long linked Northern Africa to the European continent (CIA Factbook available at http://www.cia.gov/library/publications/the-world-factbook). Due to its integral location, Tunisia has long been fought over by the European powers (CIA Factbook) (CIA Factbook). In 1881, France defeated Italy for control over Tunisia and declared the territory a protectorate of France (CIA Factbook). It wasn’t until the anti-imperialist era after World Wars I and II that France finally recognized Tunisia as an independent state in 1956 (CIA Factbook). The country’s first president, Habib Bourguiba, quickly established one party rule in the country and went on to control Tunisia for 31 years (CIA Factbook). His regime can best be characterized by the repression of Islamists and the establishment of women’s rights that are unparalleled in other Arab countries even today (CIA Factbook). In 1987, Bourguiba was deposed in a bloodless coup that placed Zine el Abidine Ben Ali in power (CIA Factbook). Under Ben Ali, Tunisia saw the repression of human rights, civil liberties, and political freedom (CIA Factbook). In December 2011, Tunisia experienced a series of violent uprisings protesting high food prices, corruption, unemployment, and poverty (CIA Factbook). These riots culminated in the resignation of President Ben Ali and the formation of the new “national unity government” headed by interim President Fouad M’Bazaa (CIA Factbook). Like many Middle Eastern countries, Tunisia has a high population of young people with a median age of 30 years old (CIA Factbook). 98% of the Tunisian population is of Arabic descent, while 1% is European and 1% is Jewish (CIA Factbook). Arabic is the official language of Tunisia, but many Tunisians speak French as a relic of the country’s colonial past (CIA Factbook). 98% of the population identifies as Muslim, while 1% identifies as Christian and 1% is Jewish (CIA Factbook available at http://www.cia.gov/library/publications/the-world-factbook).

==Type of system==

Tunisia has a French civil law system, with some aspects of Islamic law. In matters of family and inheritance disputes, when civil and Islamic law conflict judges often enforce Islamic law over civil law. <ref>http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081</ref> Tunisia has a four tiered hierarchy of the courts: the District Courts, the Courts of First Instance, the Courts of Appeal, and the Court of Cassation. In the District Courts, a single judge hears minor civil cases. In the Courts of First Instance, a panel of three judges hears appeals from the District Courts. This court also has original jurisdiction over more serious criminal cases. The Courts of Appeal hear appeals from the Courts of First Instance, and the Court of Cassation is the final court of appeal for all lower courts in the normal court system. The Court of Cassation is divided into one criminal and three civil divisions. <ref>http://carnegieendowment.org/arabpoliticalsystems</ref>

==Source of defendants’ right==

The majority of the defendants’ rights are guaranteed by the Tunisian Constitution or the Tunisian Criminal Procedure Code. Article 5 of the Tunisian Constitution guarantees all individuals “fundamental freedoms and human rights”, upholds the rule of law and the protection of human dignity, and ensures the inviolability of the person. <ref>Constitution of Tunisia, Article 5</ref> Furthermore, Article 6 states that all citizens are equal before the law and have the same rights and obligations. <ref>Constitution of Tunisia, Article 6</ref> Article 12 additionally states that police custody must be subject to judicial control and that preventative and arbitrary detention are prohibited. <ref>Constitution of Tunisia, Article 12</ref> Article 13 goes even further and ensures that those in police custody must be treated humanely and have their dignity respected according to the conditions of the law. <ref>Constitution of Tunisia, Article 13</ref> The Tunisian Penal Code also provides a thorough definition of torture and the subsequent consequences for its use. Finally, Tunisia has ratified the Convention on the Elimination of all Forms of Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). <ref>http://carnegieendowment.org/arabpoliticalsystems</ref>

==Pre-trial phase==

Article 13a of the Criminal Procedure Code states that the arresting police officer must inform the suspect of the charges brought before him in a language that he understands. The officer must also notify the suspect of the time and location of his trial and of his right to receive a medical examination before and after his detention. In addition, the arresting officer must notify the detainee’s relatives of his whereabouts and of the charges brought against him. <Tunisian Criminal Procedure Code, Article 13a</ref>

A 1999 amendment to the Criminal Procedure Code states that a suspect may not be held for more than three days. If the prosecutor has significant evidence that the suspect must be detained for a longer period of time, he may extend the detention to six days. Human rights workers and lawyers, however, report that police officers often falsify the date of arrest in order to prolong detentiontime. <ref>http://carnegieendowment.org/arabpoliticalsystems</ref> Additionally, Article 12 of the Tunisian Constitution states that police custody must be subject to judicial control and that preventative detention be exercised only after judicial instruction. <ref>Tunisian Constitution, Article 12</ref> . Article 84 of the Criminal Code states that preventative detention is an exceptional measure. <ref>Tunisian Criminal Procedure Code, Article 84</ref>Article 85 of the Criminal Code states that those accused of egregious crimes may be subjected to preventative detention in order to ensure maximum security. This detention may not exceed six months, however. <ref>Tunisian Criminal Procedure Code, Article 85</ref>

Article 69 of the Criminal Code states that in the event that the defendant requests that the court appoint him counsel, the court must oblige. The same article states that if the accused refuses to choose an attorney, or if the attorney does not appear, the judge merely precedes with the case.<ref>Tunisian Criminal Procedure Code, Article 69</ref>

==Court procedures==

For crimes that carry a sentence of more than five years or that involve national security, preventative security may last six months, with two possible court ordered four month extensions. For crimes that carry sentences of less than five years, there is an initial detention of six months that may be extended to three months. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009</ref>

Tunisian law maintains that all individuals are innocent until proven guilty. Trials in the Court of First Instance and the Court of Appeals are open to the public and government officials have allowed foreign diplomats and journalists to observe trials. Tunisia does not have trial by jury. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081</ref>

Tunisian law provides the accused the right to be present at trial, to have access to legal counsel, to question witnesses against him, and to prevent witnesses or evidence. Judges, however, rarely respect these rights. Defendants do not have the right to a speedy trial and there is no time limit on trials. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009</ref> Article 69 of the Tunisian Criminal Code states that even if the accused confesses to a crime the judge still has the responsibility to investigate the evidence. <ref>Tunisian Criminal Procedure Code, Article 69</ref>

Confessions obtained under torture are systemically used as evidence against defendants. Reports also indicate that judges did not allow lawyers access to government held evidence or records. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009</ref> Article 59 of the Tunisian Criminal Procedure Code states that the judge has the responsibility to hear the testimony of all individuals whom he believes will be helpful to the case. <ref>Tunisian Criminal Procedure Code, Article 59</ref> In reality, however, judges often decline the defendant’s request to call witnesses. This means that many people are convicted without being provided their basic confrontation rights. For cases in which an individual has been charged under the 2003 Anti-Terror Law, the government has the ability to withhold the identity of all witnesses. <ref>http://www.hrw.org/en/reports/2007/09/04/ill-fated-homecomings</ref>

The Tunisian judiciary is not independent from the executive branch, and thus obtaining a fair trial in Tunisia is very difficult. The executive branch influences the judiciary through the appointment, transfer, and tenure of judges. Also, the President of Tunisia is the head of the Supreme Judicial Council, the same body that is responsible for appointing all judges. Although the judge does not have the right to question the defendant without his lawyer present, judges seldom notify lawyers of the questioning. Additionally, the judge has the right to hear all of the defendant’s witnesses, but in most cases the judge will decline this right and convict the defendant. In many circumstances judges will refuse to hear a defendant’s allegations of police abuse and will order their statements to be stricken from the record. <ref>http://carnegieendowment.org/arabpoliticalsystems</ref>

==References==

<references/>

<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>

*The total prison population of Tunisia is 31,000, with every 297 per 100,000 people in prison.
*Approximately 22.7% of the Tunisian prison population is comprised of pre-trial detainees
*Tunisia currently has 29 prison institutions and 7 juvenile facilities
{{Languages|Tunisia}}

__NOTOC__

Tunisia

2011-03-31T11:44:41Z

Aellis:

Tunisia

2011-03-31T11:41:58Z

Aellis:

Tunisia

2011-03-31T10:31:31Z

Aellis:

==Background==

The capitol of the Tunisian Republic is located in Tunis, an important port city that has long linked Northern Africa to the European continent (CIA Factbook available at http://www.cia.gov/library/publications/the-world-factbook/geos/ts). Due to its integral location, Tunisia has long been fought over by the European powers (CIA Factbook) (CIA Factbook). In 1881, France defeated Italy for control over Tunisia and declared the territory a protectorate of France (CIA Factbook). It wasn’t until the anti-imperialist era after World Wars I and II that France finally recognized Tunisia as an independent state in 1956 (CIA Factbook). The country’s first president, Habib Bourguiba, quickly established one party rule in the country and went on to control Tunisia for 31 years (CIA Factbook). His regime can best be characterized by the repression of Islamists and the establishment of women’s rights that are unparalleled in other Arab countries even today (CIA Factbook). In 1987, Bourguiba was deposed in a bloodless coup that placed Zine el Abidine Ben Ali in power (CIA Factbook). Under Ben Ali, Tunisia saw the repression of human rights, civil liberties, and political freedom (CIA Factbook). In December 2011, Tunisia experienced a series of violent uprisings protesting high food prices, corruption, unemployment, and poverty (CIA Factbook). These riots culminated in the resignation of President Ben Ali and the formation of the new “national unity government” headed by interim President Fouad M’Bazaa (CIA Factbook). Like many Middle Eastern countries, Tunisia has a high population of young people with a median age of 30 years old (CIA Factbook). 98% of the Tunisian population is of Arabic descent, while 1% is European and 1% is Jewish (CIA Factbook). Arabic is the official language of Tunisia, but many Tunisians speak French as a relic of the country’s colonial past (CIA Factbook). 98% of the population identifies as Muslim, while 1% identifies as Christian and 1% is Jewish (CIA Factbook available at http://www.cia.gov/library/publications/the-world-factbook/geos/ts).

==Type of system==

Tunisia has a French civil law system, with some aspects of Islamic law. In matters of family and inheritance disputes, when civil and Islamic law conflict judges often enforce Islamic law over civil law. <ref>http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081</ref> Tunisia has a four tiered hierarchy of the courts: the District Courts, the Courts of First Instance, the Courts of Appeal, and the Court of Cassation. In the District Courts, a single judge hears minor civil cases. In the Courts of First Instance, a panel of three judges hears appeals from the District Courts. This court also has original jurisdiction over more serious criminal cases. The Courts of Appeal hear appeals from the Courts of First Instance, and the Court of Cassation is the final court of appeal for all lower courts in the normal court system. The Court of Cassation is divided into one criminal and three civil divisions. <ref>http://carnegieendowment.org/arabpoliticalsystems</ref>

==Source of defendants’ right==

The majority of the defendants’ rights are guaranteed by the Tunisian Constitution or the Tunisian Criminal Procedure Code. Article 5 of the Tunisian Constitution guarantees all individuals “fundamental freedoms and human rights”, upholds the rule of law and the protection of human dignity, and ensures the inviolability of the person. <ref>Constitution of Tunisia, Article 5</ref> Furthermore, Article 6 states that all citizens are equal before the law and have the same rights and obligations. <ref>Constitution of Tunisia, Article 6</ref> Article 12 additionally states that police custody must be subject to judicial control and that preventative and arbitrary detention are prohibited. <ref>Constitution of Tunisia, Article 12</ref> Article 13 goes even further and ensures that those in police custody must be treated humanely and have their dignity respected according to the conditions of the law. <ref>Constitution of Tunisia, Article 13</ref> The Tunisian Penal Code also provides a thorough definition of torture and the subsequent consequences for its use. Finally, Tunisia has ratified the Convention on the Elimination of all Forms of Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). <ref>http://carnegieendowment.org/arabpoliticalsystems</ref>

==Pre-trial phase==

Article 13a of the Criminal Procedure Code states that the arresting police officer must inform the suspect of the charges brought before him in a language that he understands. The officer must also notify the suspect of the time and location of his trial and of his right to receive a medical examination before and after his detention. In addition, the arresting officer must notify the detainee’s relatives of his whereabouts and of the charges brought against him. <Tunisian Criminal Procedure Code, Article 13a</ref>

A 1999 amendment to the Criminal Procedure Code states that a suspect may not be held for more than three days. If the prosecutor has significant evidence that the suspect must be detained for a longer period of time, he may extend the detention to six days. Human rights workers and lawyers, however, report that police officers often falsify the date of arrest in order to prolong detentiontime. <ref>http://carnegieendowment.org/arabpoliticalsystems</ref> Additionally, Article 12 of the Tunisian Constitution states that police custody must be subject to judicial control and that preventative detention be exercised only after judicial instruction. <ref>Tunisian Constitution, Article 12</ref> . Article 84 of the Criminal Code states that preventative detention is an exceptional measure. <ref>Tunisian Criminal Procedure Code, Article 84</ref>Article 85 of the Criminal Code states that those accused of egregious crimes may be subjected to preventative detention in order to ensure maximum security. This detention may not exceed six months, however. <ref>Tunisian Criminal Procedure Code, Article 85</ref>

Article 69 of the Criminal Code states that in the event that the defendant requests that the court appoint him counsel, the court must oblige. The same article states that if the accused refuses to choose an attorney, or if the attorney does not appear, the judge merely precedes with the case.<ref>Tunisian Criminal Procedure Code, Article 69</ref>

==Court procedures==

For crimes that carry a sentence of more than five years or that involve national security, preventative security may last six months, with two possible court ordered four month extensions. For crimes that carry sentences of less than five years, there is an initial detention of six months that may be extended to three months. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081</ref>

Tunisian law maintains that all individuals are innocent until proven guilty. Trials in the Court of First Instance and the Court of Appeals are open to the public and government officials have allowed foreign diplomats and journalists to observe trials. Tunisia does not have trial by jury. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081</ref>

Tunisian law provides the accused the right to be present at trial, to have access to legal counsel, to question witnesses against him, and to prevent witnesses or evidence. Judges, however, rarely respect these rights. Defendants do not have the right to a speedy trial and there is no time limit on trials. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081</ref> Article 69 of the Tunisian Criminal Code states that even if the accused confesses to a crime the judge still has the responsibility to investigate the evidence. <ref>Tunisian Criminal Procedure Code, Article 69</ref>

Confessions obtained under torture are systemically used as evidence against defendants. Reports also indicate that judges did not allow lawyers access to government held evidence or records. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081</ref> Article 59 of the Tunisian Criminal Procedure Code states that the judge has the responsibility to hear the testimony of all individuals whom he believes will be helpful to the case. <ref>Tunisian Criminal Procedure Code, Article 59</ref> In reality, however, judges often decline the defendant’s request to call witnesses. This means that many people are convicted without being provided their basic confrontation rights. For cases in which an individual has been charged under the 2003 Anti-Terror Law, the government has the ability to withhold the identity of all witnesses. <ref>http://www.hrw.org/en/reports/2007/09/04/ill-fated-homecomings</ref>

The Tunisian judiciary is not independent from the executive branch, and thus obtaining a fair trial in Tunisia is very difficult. The executive branch influences the judiciary through the appointment, transfer, and tenure of judges. Also, the President of Tunisia is the head of the Supreme Judicial Council, the same body that is responsible for appointing all judges. Although the judge does not have the right to question the defendant without his lawyer present, judges seldom notify lawyers of the questioning. Additionally, the judge has the right to hear all of the defendant’s witnesses, but in most cases the judge will decline this right and convict the defendant. In many circumstances judges will refuse to hear a defendant’s allegations of police abuse and will order their statements to be stricken from the record. <ref>http://carnegieendowment.org/arabpoliticalsystems</ref>

==References==

<references/>

Tunisia

2011-03-31T10:29:30Z

Aellis: Created page with " ==Background== The capitol of the Tunisian Republic is located in Tunis, an important port city that has long linked Northern Africa to the European continent (CIA Factbo..."

==Background==

The capitol of the Tunisian Republic is located in Tunis, an important port city that has long linked Northern Africa to the European continent (CIA Factbook available at http://www.cia.gov/library/publications/the-world-factbook/geos/ts.html). Due to its integral location, Tunisia has long been fought over by the European powers (CIA Factbook) (CIA Factbook). In 1881, France defeated Italy for control over Tunisia and declared the territory a protectorate of France (CIA Factbook). It wasn’t until the anti-imperialist era after World Wars I and II that France finally recognized Tunisia as an independent state in 1956 (CIA Factbook). The country’s first president, Habib Bourguiba, quickly established one party rule in the country and went on to control Tunisia for 31 years (CIA Factbook). His regime can best be characterized by the repression of Islamists and the establishment of women’s rights that are unparalleled in other Arab countries even today (CIA Factbook). In 1987, Bourguiba was deposed in a bloodless coup that placed Zine el Abidine Ben Ali in power (CIA Factbook). Under Ben Ali, Tunisia saw the repression of human rights, civil liberties, and political freedom (CIA Factbook). In December 2011, Tunisia experienced a series of violent uprisings protesting high food prices, corruption, unemployment, and poverty (CIA Factbook). These riots culminated in the resignation of President Ben Ali and the formation of the new “national unity government” headed by interim President Fouad M’Bazaa (CIA Factbook). Like many Middle Eastern countries, Tunisia has a high population of young people with a median age of 30 years old (CIA Factbook). 98% of the Tunisian population is of Arabic descent, while 1% is European and 1% is Jewish (CIA Factbook). Arabic is the official language of Tunisia, but many Tunisians speak French as a relic of the country’s colonial past (CIA Factbook). 98% of the population identifies as Muslim, while 1% identifies as Christian and 1% is Jewish (CIA Factbook available at http://www.cia.gov/library/publications/the-world-factbook/geos/ts.html).

==Type of system==

Tunisia has a French civil law system, with some aspects of Islamic law. In matters of family and inheritance disputes, when civil and Islamic law conflict judges often enforce Islamic law over civil law. <ref>http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081.htm</ref> Tunisia has a four tiered hierarchy of the courts: the District Courts, the Courts of First Instance, the Courts of Appeal, and the Court of Cassation. In the District Courts, a single judge hears minor civil cases. In the Courts of First Instance, a panel of three judges hears appeals from the District Courts. This court also has original jurisdiction over more serious criminal cases. The Courts of Appeal hear appeals from the Courts of First Instance, and the Court of Cassation is the final court of appeal for all lower courts in the normal court system. The Court of Cassation is divided into one criminal and three civil divisions. <ref>http://carnegieendowment.org/arabpoliticalsystems</ref>

==Source of defendants’ right==

The majority of the defendants’ rights are guaranteed by the Tunisian Constitution or the Tunisian Criminal Procedure Code. Article 5 of the Tunisian Constitution guarantees all individuals “fundamental freedoms and human rights”, upholds the rule of law and the protection of human dignity, and ensures the inviolability of the person. <ref>Constitution of Tunisia, Article 5</ref> Furthermore, Article 6 states that all citizens are equal before the law and have the same rights and obligations. <ref>Constitution of Tunisia, Article 6</ref> Article 12 additionally states that police custody must be subject to judicial control and that preventative and arbitrary detention are prohibited. <ref>Constitution of Tunisia, Article 12</ref> Article 13 goes even further and ensures that those in police custody must be treated humanely and have their dignity respected according to the conditions of the law. <ref>Constitution of Tunisia, Article 13</ref> The Tunisian Penal Code also provides a thorough definition of torture and the subsequent consequences for its use. Finally, Tunisia has ratified the Convention on the Elimination of all Forms of Torture and other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) and the International Covenant on Civil and Political Rights (ICCPR). <ref>http://carnegieendowment.org/arabpoliticalsystems</ref>

==Pre-trial phase==

Article 13a of the Criminal Procedure Code states that the arresting police officer must inform the suspect of the charges brought before him in a language that he understands. The officer must also notify the suspect of the time and location of his trial and of his right to receive a medical examination before and after his detention. In addition, the arresting officer must notify the detainee’s relatives of his whereabouts and of the charges brought against him. <Tunisian Criminal Procedure Code, Article 13a</ref>

A 1999 amendment to the Criminal Procedure Code states that a suspect may not be held for more than three days. If the prosecutor has significant evidence that the suspect must be detained for a longer period of time, he may extend the detention to six days. Human rights workers and lawyers, however, report that police officers often falsify the date of arrest in order to prolong detentiontime. <ref>http://carnegieendowment.org/arabpoliticalsystems</ref> Additionally, Article 12 of the Tunisian Constitution states that police custody must be subject to judicial control and that preventative detention be exercised only after judicial instruction. <ref>Tunisian Constitution, Article 12</ref> . Article 84 of the Criminal Code states that preventative detention is an exceptional measure. <ref>Tunisian Criminal Procedure Code, Article 84</ref>Article 85 of the Criminal Code states that those accused of egregious crimes may be subjected to preventative detention in order to ensure maximum security. This detention may not exceed six months, however. <ref>Tunisian Criminal Procedure Code, Article 85</ref>

Article 69 of the Criminal Code states that in the event that the defendant requests that the court appoint him counsel, the court must oblige. The same article states that if the accused refuses to choose an attorney, or if the attorney does not appear, the judge merely precedes with the case.<ref>Tunisian Criminal Procedure Code, Article 69</ref>

==Court procedures==

For crimes that carry a sentence of more than five years or that involve national security, preventative security may last six months, with two possible court ordered four month extensions. For crimes that carry sentences of less than five years, there is an initial detention of six months that may be extended to three months. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081.htm</ref>

Tunisian law maintains that all individuals are innocent until proven guilty. Trials in the Court of First Instance and the Court of Appeals are open to the public and government officials have allowed foreign diplomats and journalists to observe trials. Tunisia does not have trial by jury. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081.htm</ref>

Tunisian law provides the accused the right to be present at trial, to have access to legal counsel, to question witnesses against him, and to prevent witnesses or evidence. Judges, however, rarely respect these rights. Defendants do not have the right to a speedy trial and there is no time limit on trials. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081.htm</ref> Article 69 of the Tunisian Criminal Code states that even if the accused confesses to a crime the judge still has the responsibility to investigate the evidence. <ref>Tunisian Criminal Procedure Code, Article 69</ref>

Confessions obtained under torture are systemically used as evidence against defendants. Reports also indicate that judges did not allow lawyers access to government held evidence or records. <ref>US State Department Human Rights Report available at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136081.htm</ref> Article 59 of the Tunisian Criminal Procedure Code states that the judge has the responsibility to hear the testimony of all individuals whom he believes will be helpful to the case. <ref>Tunisian Criminal Procedure Code, Article 59</ref> In reality, however, judges often decline the defendant’s request to call witnesses. This means that many people are convicted without being provided their basic confrontation rights. For cases in which an individual has been charged under the 2003 Anti-Terror Law, the government has the ability to withhold the identity of all witnesses. <ref>http://www.hrw.org/en/reports/2007/09/04/ill-fated-homecomings</ref>

The Tunisian judiciary is not independent from the executive branch, and thus obtaining a fair trial in Tunisia is very difficult. The executive branch influences the judiciary through the appointment, transfer, and tenure of judges. Also, the President of Tunisia is the head of the Supreme Judicial Council, the same body that is responsible for appointing all judges. Although the judge does not have the right to question the defendant without his lawyer present, judges seldom notify lawyers of the questioning. Additionally, the judge has the right to hear all of the defendant’s witnesses, but in most cases the judge will decline this right and convict the defendant. In many circumstances judges will refuse to hear a defendant’s allegations of police abuse and will order their statements to be stricken from the record. <ref>http://carnegieendowment.org/arabpoliticalsystems</ref>

==References==

<references/>

Criminal Justice Systems Around the World

2011-03-31T10:25:51Z

Aellis:

Criminal justice systems can be loosely classified as either common, civil, Islamic or socialist law in nature. However, today many jurisdictions have adopted hybrid models that combine elements of various legal systems. Many of these systems share a common set of [[Core Values | core values]]. In addition, most criminal justice systems have adopted a [[Legality Principle | legality principle]]. Almost every criminal justice system is made of of similar [[Actors in the Criminal Justice System | actors]].

==Country Pages==
<div style="float: left; width: 33%">

* Afghanistan
* Algeria
* Angola
* [[Argentina]]
* Armenia
* Australia
* [[Azerbaijan]]
* [[Bangladesh]]
* Belgium
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* [[Canada]]
* Central African Republic
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*[[England and Wales]]
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** French Guiana
* Georgia
*[[Germany]]
</div><div style="float: left; width: 33%">

* Ghana
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* Guyana
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*[[India]]
*[[Indonesia]]
*Iran
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* [[Italy]]
*Jamaica
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* Jordan
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*[[Laos]]
* Lebanon
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* Mali
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* Mongolia
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* Netherlands
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</div><div style="float: left; width: 33%">

* [[Pakistan]]
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* Russia
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* Scotland
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* [[Singapore]]
* [[South Africa]]
* Spain
*[[Sri Lanka]]
* Sudan
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* [[Swaziland]]
* [[Sweden]]
* [[Switzerland]]
* Syria
*[[Tanzania]]
**[[Zanzibar]]
*[[Thailand]]
* Trinidad and Tobago
*[[The Republic of the Philippines]]
*[[Tunisia]]
* Turkey
*[[Uganda]]
* Ukraine
*United Arab Emirates
*[[United States]]
* Uruguay
* Uzbekistan
* [[Venezuela]]
*[[Vietnam]]
*[[Zimbabwe]]

</div>

==Other Countries==
See a country that is not listed here? Email elearning@ibj.org.

Federal Rules of Criminal Procedure - Rule 55. Records

2011-03-11T14:08:20Z

Aellis:

The clerk of the district court must keep records of criminal proceedings in the form prescribed by the Director of the Administrative Office of the United States Courts. The clerk must enter in the records every court order or judgment and the date of entry.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 53. Courtroom Photographing and Broadcasting Prohibited

2011-03-11T14:07:58Z

Aellis:

Except as otherwise provided by a statute or these rules, the court must not permit the taking of photographs in the courtroom during judicial proceedings or the broadcasting of judicial proceedings from the courtroom.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 52. Harmless and Plain Error

2011-03-11T14:07:37Z

Aellis:

(a) Harmless Error.

Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.

(b) Plain Error.

A plain error that affects substantial rights may be considered even though it was not brought to the court's attention.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 51. Preserving Claimed Error

2011-03-11T14:07:13Z

Aellis:

(a) Exceptions Unnecessary.

Exceptions to rulings or orders of the court are unnecessary.

(b) Preserving a Claim of Error.

A party may preserve a claim of error by informing the court -- when the court ruling or order is made or sought -- of the action the party wishes the court to take, or the party's objection to the court's action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party. A ruling or order that admits or excludes evidence is governed by Federal Rule of Evidence 103.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 50. Prompt Disposition

2011-03-11T14:06:53Z

Aellis:

Scheduling preference must be given to criminal proceedings as far as practicable.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 49.1. Privacy Protection For Filings Made with the Court

2011-03-11T14:06:27Z

Aellis:

(a) Redacted Filings.

Unless the court orders otherwise, in an electronic or paper filing with the court that contains an individual’s social-security number, taxpayer-identification number, or birth date, the name of an individual known to be a minor, a financial-account number, or the home address of an individual, a party or nonparty making the filing may include only:

(1) the last four digits of the social-security number and taxpayer-identification number;

(2) the year of the individual’s birth;

(3) the minor’s initials;

(4) the last four digits of the financial-account number; and

(5) the city and state of the home address.

(b) Exemptions from the Redaction Requirement.

The redaction requirement does not apply to the following:

(1) a financial-account number or real property address that identifies the property allegedly subject to forfeiture in a forfeiture proceeding;

(2) the record of an administrative or agency proceeding;

(3) the official record of a state-court proceeding;

(4) the record of a court or tribunal, if that record as not subject to the redaction requirement when originally filed;

(5) a filing covered by Rule 49.1(d);

(6) a pro se filing in an action brought under 28 U.S.C. §§ 2241, 2254, or 2255;

(7) a court filing that is related to a criminal matter or investigation and that is prepared before the filing of a criminal charge or is not filed as part of any docketed criminal case;

(8) an arrest or search warrant; and

(9) a charging document and an affidavit filed in support of any charging document.

(c) Immigration Cases.

A filing in an action brought under 28 U.S.C. § 2241 that relates to the petitioner’s immigration rights is governed by Federal Rule of Civil Procedure 5.2.

(d) Filings Made Under Seal.

The court may order that a filing be made under seal without redaction. The court may later unseal the filing or order the person who made the filing to file a redacted version for the public record.

(e) Protective Orders.

For good cause, the court may by order in a case:

(1) require redaction of additional information; or

(2) limit or prohibit a nonparty’s remote electronic access to a document filed with the court.

(f) Option for Additional Unredacted Filing Under Seal.

A person making a redacted filing may also file an unredacted copy under seal. The court must retain the unredacted copy as part of the record.

(g) Option for Filing a Reference List.

A filing that contains redacted information may be filed together with a reference list that identifies each item of redacted information and specifies an appropriate identifier that uniquely corresponds to each item listed. The list must be filed under seal and may be amended as of right. Any reference in the case to a listed identifier will be construed to refer to the corresponding item of information.

(h) Waiver of Protection of Identifiers.

A person waives the protection of Rule 49.1(a) as to the person’s own information by filing it without redaction and not under seal.

[Model Form for Use in 28 U.S.C. § 2254 Cases Involving a Rule 9 Issue under Section 2254 of Title 28, United States Code]

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 49. Serving and Filing Papers

2011-03-11T14:06:00Z

Aellis:

(a) When Required.

A party must serve on every other party any written motion (other than one to be heard ex parte), written notice, designation of the record on appeal, or similar paper.

(b) How Made.

Service must be made in the manner provided for a civil action. When these rules or a court order requires or permits service on a party represented by an attorney, service must be made on the attorney instead of the party, unless the court orders otherwise.

(c) Notice of a Court Order.

When the court issues an order on any post-arraignment motion, the clerk must provide notice in a manner provided for in a civil action. Except as Federal Rule of Appellate Procedure 4(b) provides otherwise, the clerk's failure to give notice does not affect the time to appeal, or relieve -- or authorize the court to relieve -- a party's failure to appeal within the allowed time.

(d) Filing.

A party must file with the court a copy of any paper the party is required to serve. A paper must be filed in a manner provided for in a civil action.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 48. Dismissal

2011-03-11T14:05:30Z

Aellis:

(a) By the Government.

The government may, with leave of court, dismiss an indictment, information, or complaint. The government may not dismiss the prosecution during trial without the defendant's consent.

(b) By the Court.

The court may dismiss an indictment, information, or complaint if unnecessary delay occurs in:

(1) presenting a charge to a grand jury;

(2) filing an information against a defendant; or

(3) bringing a defendant to trial.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 47. Motions and Supporting Affidavits

2011-03-11T14:05:05Z

Aellis:

(a) In General.

A party applying to the court for an order must do so by motion.

(b) Form and Content of a Motion.

A motion -- except when made during a trial or hearing -- must be in writing, unless the court permits the party to make the motion by other means. A motion must state the grounds on which it is based and the relief or order sought. A motion may be supported by affidavit.

(c) Timing of a Motion.

A party must serve a written motion -- other than one that the court may hear ex parte -- and any hearing notice at least 5 days before the hearing date, unless a rule or court order sets a different period. For good cause, the court may set a different period upon ex parte application.

(d) Affidavit Supporting a Motion.

The moving party must serve any supporting affidavit with the motion. A responding party must serve any opposing affidavit at least one day before the hearing, unless the court permits later service.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 46. Release from Custody; Supervising Detention

2011-03-11T14:04:33Z

Aellis:

(a) Before Trial.

The provisions of 18 U.S.C. § § 3142 and 3144 govern pretrial release.

(b) During Trial.

A person released before trial continues on release during trial under the same terms and conditions. But the court may order different terms and conditions or terminate the release if necessary to ensure that the person will be present during trial or that the person's conduct will not obstruct the orderly and expeditious progress of the trial.

(c) Pending Sentencing or Appeal.

The provisions of 18 U.S.C. § 3143 govern release pending sentencing or appeal. The burden of establishing that the defendant will not flee or pose a danger to any other person or to the community rests with the defendant.

(d) Pending Hearing on a Violation of Probation or Supervised Release.

Rule 32.1(a)(6) governs release pending a hearing on a violation of probation or supervised release.

(e) Surety.

The court must not approve a bond unless any surety appears to be qualified. Every surety, except a legally approved corporate surety, must demonstrate by affidavit that its assets are adequate. The court may require the affidavit to describe the following:

(1) the property that the surety proposes to use as security;

(2) any encumbrance on that property;

(3) the number and amount of any other undischarged bonds and bail undertakings the surety has issued; and

(4) any other liability of the surety.

(f) Bail Forfeiture.

(1) Declaration.

The court must declare the bail forfeited if a condition of the bond is breached.

(2) Setting Aside.

The court may set aside in whole or in part a bail forfeiture upon any condition the court may impose if:

(A) the surety later surrenders into custody the person released on the surety's appearance bond; or

(B) it appears that justice does not require bail forfeiture.

(3) Enforcement.

(A) Default Judgment and Execution.

If it does not set aside a bail forfeiture, the court must, upon the government's motion, enter a default judgment.

(B) Jurisdiction and Service.

By entering into a bond, each surety submits to the district court's jurisdiction and irrevocably appoints the district clerk as its agent to receive service of any filings affecting its liability.

(C) Motion to Enforce.

The court may, upon the government's motion, enforce the surety's liability without an independent action. The government must serve any motion, and notice as the court prescribes, on the district clerk. If so served, the clerk must promptly mail a copy to the surety at its last known address.

(4) Remission.

After entering a judgment under Rule 46(f)(3), the court may remit in whole or in part the judgment under the same conditions specified in Rule 46(f)(2).

(g) Exoneration.

The court must exonerate the surety and release any bail when a bond condition has been satisfied or when the court has set aside or remitted the forfeiture. The court must exonerate a surety who deposits cash in the amount of the bond or timely surrenders the defendant into custody.

(h) Supervising Detention Pending Trial.

(1) In General.

To eliminate unnecessary detention, the court must supervise the detention within the district of any defendants awaiting trial and of any persons held as material witnesses.

(2) Reports.

An attorney for the government must report biweekly to the court, listing each material witness held in custody for more than 14 days pending indictment, arraignment, or trial. For each material witness listed in the report, an attorney for the government must state why the witness should not be released with or without a deposition being taken under Rule 15(a).

(i) Forfeiture of Property.

The court may dispose of a charged offense by ordering the forfeiture of 18 U.S.C. § 3142(c)(1)(B)(xi) property under 18 U.S.C. § 3146(d), if a fine in the amount of the property's value would be an appropriate sentence for the charged offense.

(j) Producing a Statement.

(1) In General.

Rule 26.2(a)"(d) and (f) applies at a detention hearing under 18 U.S.C. § 3142, unless the court for good cause rules otherwise.

(2) Sanctions for Not Producing a Statement.

If a party disobeys a Rule 26.2 order to produce a witness's statement, the court must not consider that witness's testimony at the detention hearing.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 45. Computing and Extending Time

2011-03-11T14:03:54Z

Aellis:

(a) Computing Time.

The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit.

When the period is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(2) Period Stated in Hours.

When the period is stated in hours:

(A) begin counting immediately on the occurrence of the event that triggers the period;

(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and

(C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

(3) Inaccessibility of the Clerk's Office.

Unless the court orders otherwise, if the clerk's office is inaccessible:

(A) on the last day for filing under Rule 45(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

(B) during the last hour for filing under Rule 45(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.

(4) "Last Day" Defined.

Unless a different time is set by a statute, local rule, or court order, the last day ends:

(A) for electronic filing, at midnight in the court's time zone; and

(B) for filing by other means, when the clerk's office is scheduled to close.

(5) “Next Day” Defined.

The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(6) “Legal Holiday” Defined.

“Legal holiday” means:

(A) the day set aside by statute for observing New Year’s Day, Martin Luther King Jr.’s Birthday, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or Christmas Day;

(B) any day declared a holiday by the President or Congress; and

(C) for periods that are measured after an event, any other day declared a holiday by the state where the district court is located.

(b) Extending

(1) In General.

When an act must or may be done within a specified period, the court on its own may extend the time, or for good cause may do so on a party’s motion made:

(A) before the originally prescribed or previously extended time expires; or

(B) after the time expires if the party failed to act because of excusable neglect.

(2) Exceptions.

The court may not extend the time to take any action under Rule 35, except as stated in that rule.

(c) Additional Time After Certain Kinds of Service.

Whenever a party must or may act within a specified period after service and service is made in the manner provided under Federal Rule of Civil Procedure 5(b)(2)(C), (D), (E), or (F), 3 days are added after the period would otherwise expire under subdivision (a).

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 44. Right to and Appointment of Counsel

2011-03-11T14:03:18Z

Aellis:

(a) Right to Appointed Counsel.

A defendant who is unable to obtain counsel is entitled to have counsel appointed to represent the defendant at every stage of the proceeding from initial appearance through appeal, unless the defendant waives this right.

(b) Appointment Procedure.

Federal law and local court rules govern the procedure for implementing the right to counsel.

(c) Inquiry Into Joint Representation.

(1) Joint Representation.
Joint representation occurs when:

(A) two or more defendants have been charged jointly under Rule 8(b) or have been joined for trial under Rule 13; and

(B) the defendants are represented by the same counsel, or counsel who are associated in law practice.

(2) Court's Responsibilities in Cases of Joint Representation.

The court must promptly inquire about the propriety of joint representation and must personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless there is good cause to believe that no conflict of interest is likely to arise, the court must take appropriate measures to protect each defendant's right to counsel.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 43. Defendant's Presence

2011-03-11T14:02:46Z

Aellis:

(a) When Required.

Unless this rule, Rule 5, or Rule 10 provides otherwise, the defendant must be present at:

(1) the initial appearance, the initial arraignment, and the plea;

(2) every trial stage, including jury impanelment and the return of the verdict; and

(3) sentencing.

(b) When Not Required.

A defendant need not be present under any of the following circumstances:

(1) Organizational Defendant.

The defendant is an organization represented by counsel who is present.

(2) Misdemeanor Offense.

The offense is punishable by fine or by imprisonment for not more than one year, or both, and with the defendant's written consent, the court permits arraignment, plea, trial, and sentencing to occur in the defendant's absence.

(3) Conference or Hearing on a Legal Question.

The proceeding involves only a conference or hearing on a question of law.

(4) Sentence Correction.

The proceeding involves the correction or reduction of sentence under Rule 35 or 18 U.S.C. § 3582(c).

(c) Waiving Continued Presence.

(1) In General.

A defendant who was initially present at trial, or who had pleaded guilty or nolo contendere, waives the right to be present under the following circumstances:

(A) when the defendant is voluntarily absent after the trial has begun, regardless of whether the court informed the defendant of an obligation to remain during trial;

(B) in a noncapital case, when the defendant is voluntarily absent during sentencing; or

(C) when the court warns the defendant that will remove the defendant from the courtroom for disruptive behavior, but the defendant persists in conduct that justifies removal from the courtroom.

(2) Waiver's Effect.

If the defendant waives the right to be present, the trial may proceed to completion, including the verdict's return and sentencing, during the defendant's absence.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 42. Criminal Contempt

2011-03-11T14:02:09Z

Aellis:

(a) Disposition After Notice.

Any person who commits criminal contempt may be punished for that contempt after prosecution on notice.

(1) Notice.

The court must give the person notice in open court, in an order to show cause, or in an arrest order. The notice must:

(A) state the time and place of the trial;

(B) allow the defendant a reasonable time to prepare a defense; and

(C) state the essential facts constituting the charged criminal contempt and describe it as such.

(2) Appointing a Prosecutor.

The court must request that the contempt be prosecuted by an attorney for the government, unless the interest of justice requires the appointment of another attorney. If the government declines the request, the court must appoint another attorney to prosecute the contempt.

(3) Trial and Disposition.

A person being prosecuted for criminal contempt is entitled to a jury trial in any case in which federal law so provides and must be released or detained as Rule 46 provides. If the criminal contempt involves disrespect toward or criticism of a judge, that judge is disqualified from presiding at the contempt trial or hearing unless the defendant consents. Upon a finding or verdict of guilty, the court must impose the punishment.

(b) Summary Disposition.

Notwithstanding any other provision of these rules, the court (other than a magistrate judge) may summarily punish a person who commits criminal contempt in its presence if the judge saw or heard the contemptuous conduct and so certifies; a magistrate judge may summarily punish a person as provided in 28 U.S.C. § 636(e). The contempt order must recite the facts, be signed by the judge, and be filed with the clerk.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 41. Search and Seizure

2011-03-11T14:01:31Z

Aellis:

(a) Scope and Definitions.

(1) Scope.

This rule does not modify any statute regulating search or seizure, or the issuance and execution of a search warrant in special circumstances.

(2) Definitions.

The following definitions apply under this rule:

(A) “Property” includes documents, books, papers, any other tangible objects, and information.

(B) “Daytime” means the hours between 6:00 a.m. and 10:00 p.m. according to local time.

(C) “Federal law enforcement officer” means a government agent (other than an attorney for the government) who is engaged in enforcing the criminal laws and is within any category of officers authorized by the Attorney General to request a search warrant.

(D) “Domestic terrorism” and “international terrorism” have the meanings set out in 18 U.S.C. § 2331.

(E) “Tracking device” has the meaning set out in 18 U.S.C. § 3117(b).

(b) Authority to Issue a Warrant.

At the request of a federal law enforcement officer or an attorney for the government:

(1) a magistrate judge with authority in the district—or if none is reasonably available, a judge of a state court of record in the district—has authority to issue a warrant to search for and seize a person or property located within the district;

(2) a magistrate judge with authority in the district has authority to issue a warrant for a person or property outside the district if the person or property is located within the district when the warrant is issued but might move or be moved outside the district before the warrant is executed;

(3) a magistrate judge—in an investigation of domestic terrorism or international terrorism—with authority in any district in which activities related to the terrorism may have occurred has authority to issue a warrant for a person or property within or outside that district;

(4) a magistrate judge with authority in the district has authority to issue a warrant to install within the district a tracking device; the warrant may authorize use of the device to track the movement of a person or property located within the district, outside the district, or both; and

(5) a magistrate judge having authority in any district where activities related to the crime may have occurred, or in the District of Columbia, may issue a warrant for property that is located outside the jurisdiction of any state or district, but within any of the following:

(A) a United States territory, possession, or commonwealth;

(B) the premises—no matter who owns them—of a United States diplomatic or consular mission in a foreign state, including any appurtenant building, part of a building, or land used for the mission’s purposes; or

(C) a residence and any appurtenant land owned or leased by the United States and used by United States personnel assigned to a United States diplomatic or consular mission in a foreign state.

(c) Persons or Property Subject to Search or Seizure.

A warrant may be issued for any of the following:

(1) evidence of a crime;

(2) contraband, fruits of crime, or other items illegally possessed;

(3) property designed for use, intended for use, or used in committing a crime; or

(4) a person to be arrested or a person who is unlawfully restrained.

(d) Obtaining a Warrant.

(1) In General.

After receiving an affidavit or other information, a magistrate judge — or if authorized by Rule 41(b), a judge of a state court of record — must issue the warrant if there is probable cause to search for and seize a person or property or to install and use a tracking device.

(2) Requesting a Warrant in the Presence of a Judge.

(A) Warrant on an Affidavit.

When a federal law enforcement officer or an attorney for the government presents an affidavit in support of a warrant, the judge may require the affiant to appear personally and may examine under oath the affiant and any witness the affiant produces.

(B) Warrant on Sworn Testimony.

The judge may wholly or partially dispense with a written affidavit and base a warrant on sworn testimony if doing so is reasonable under the circumstances.

(C) Recording Testimony.

Testimony taken in support of a warrant must be recorded by a court reporter or by a suitable recording device, and the judge must file the transcript or recording with the clerk, along with any affidavit.

(3) Requesting a Warrant by Telephonic or Other Means.

(A) In General.

A magistrate judge may issue a warrant based on information communicated by telephone or other appropriate means, including reliable electronic means.

(B) Recording Testimony.

Upon learning that an applicant is requesting a warrant under Rule 41(d)(3)(A), a magistrate judge must:

(i) place under oath the applicant and any person on whose testimony the application is based; and

(ii) make a verbatim record of the conversation with a suitable recording device, if available, or by a court reporter, or in writing.

(C) Certifying Testimony.

The magistrate judge must have any recording or court reporter’s notes transcribed, certify the transcription’s accuracy, and file a copy of the record and the transcription with the clerk. Any written verbatim record must be signed by the magistrate judge and filed with the clerk.

(D) Suppression Limited.

Absent a finding of bad faith, evidence obtained from a warrant issued under Rule 41(d)(3)(A) is not subject to suppression on the ground that issuing the warrant in that manner was unreasonable under the circumstances.

(e) Issuing the Warrant.

(1) In General.

The magistrate judge or a judge of a state court of record must issue the warrant to an officer authorized to execute it.

(2) Contents of the Warrant.

(A) Warrant to Search for and Seize a Person or Property.

Except for a tracking-device warrant, the warrant must identify the person or property to be searched, identify any person or property to be seized, and designate the magistrate judge to whom it must be returned. The warrant must command the officer to:

(i) execute the warrant within a specified time no longer than 14 days;

(ii) execute the warrant during the daytime, unless the judge for good cause expressly authorizes execution at another time; and

(iii) return the warrant to the magistrate judge designated in the warrant.

(B) Warrant Seeking Electronically Stored Information.

A warrant under Rule 41(e)(2)(A) may authorize the seizure of electronic storage media or the seizure or copying of electronically stored information. Unless otherwise specified, the warrant authorizes a later review of the media or information consistent with the warrant. The time for executing the warrant in Rule 41(e)(2)(A) and (f)(1)(A) refers to the seizure or on-site copying of the media or information, and not to any later off-site copying or review.

(C) Warrant for a Tracking Device.

A tracking-device warrant must identify the person or property to be tracked, designate the magistrate judge to whom it must be returned, and specify a reasonable length of time that the device may be used. The time must not exceed 45 days from the date the warrant was issued. The court may, for good cause, grant one or more extensions for a reasonable period not to exceed 45 days each. The warrant must command the officer to:

(i) complete any installation authorized by the warrant within a specified time no longer than 10 calendar days;

(ii) perform any installation authorized by the warrant during the daytime, unless the judge for good cause expressly authorizes installation at another time; and

(iii) return the warrant to the judge designated in the warrant.

(3) Warrant by Telephonic or Other Means.

If a magistrate judge decides to proceed under Rule 41(d)(3)(A), the following additional procedures apply:

(A) Preparing a Proposed Duplicate Original Warrant.

The applicant must prepare a “proposed duplicate original warrant” and must read or otherwise transmit the contents of that document verbatim to the magistrate judge.

(B) Preparing an Original Warrant.

If the applicant reads the contents of the proposed duplicate original warrant, the magistrate judge must enter those contents into an original warrant. If the applicant transmits the contents by reliable electronic means, that transmission may serve as the original warrant.

(C) Modification.

The magistrate judge may modify the original warrant. The judge must transmit any modified warrant to the applicant by reliable electronic means under Rule 41(e)(3)(D) or direct the applicant to modify the proposed duplicate original warrant accordingly.

(D) Signing the Warrant.

Upon determining to issue the warrant, the magistrate judge must immediately sign the original warrant, enter on its face the exact date and time it is issued, and transmit it by reliable electronic means to the applicant or direct the applicant to sign the judge’s name on the duplicate original warrant.

(f) Executing and Returning the Warrant.

(1) Warrant to Search for and Seize a Person or Property.

(A) Noting the Time.

The officer executing the warrant must enter on it the exact date and time it was executed.

(B) Inventory.

An officer present during the execution of the warrant must prepare and verify an inventory of any property seized. The officer must do so in the presence of another officer and the person from whom, or from whose premises, the property was taken. If either one is not present, the officer must prepare and verify the inventory in the presence of at least one other credible person. In a case involving the seizure of electronic storage media or the seizure or copying of electronically stored information. The inventory may be limited to describing the physical storage media that were seized or copied. The officer may retain a copy of the electronically stored information that was seized or copied.

(C) Receipt.

The officer executing the warrant must give a copy of the warrant and a receipt for the property taken to the person from whom, or from whose premises, the property was taken or leave a copy of the warrant and receipt at the place where the officer took the property.

(D) Return.

The officer executing the warrant must promptly return it—together with a copy of the inventory—to the magistrate judge designated on the warrant. The judge must, on request, give a copy of the inventory to the person from whom, or from whose premises, the property was taken and to the applicant for the warrant.

(2) Warrant for a Tracking Device.

(A) Noting the Time.

The officer executing a tracking-device warrant must enter on it the exact date and time the device was installed and the period during which it was used.

(B) Return.

Within 10 calendar days after the use of the tracking device has ended, the officer executing the warrant must return it to the judge designated in the warrant.

(C) Service.

Within 10 calendar days after the use of the tracking device has ended, the officer executing a tracking-device warrant must serve a copy of the warrant on the person who was tracked or whose property was tracked. Service may be accomplished by delivering a copy to the person who, or whose property, was tracked; or by leaving a copy at the person’s residence or usual place of abode with an individual of suitable age and discretion who resides at that location and by mailing a copy to the person’s last known address. Upon request of the government, the judge may delay notice as provided in Rule 41(f)(3).

(3) Delayed Notice.

Upon the government’s request, a magistrate judge—or if authorized by Rule 41(b), a judge of a state court of record—may delay any notice required by this rule if the delay is authorized by statute.

(g) Motion to Return Property.

A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property’s return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.

(h) Motion to Suppress.

A defendant may move to suppress evidence in the court where the trial will occur, as Rule 12 provides.

(i) Forwarding Papers to the Clerk.

The magistrate judge to whom the warrant is returned must attach to the warrant a copy of the return, of the inventory, and of all other related papers and must deliver them to the clerk in the district where the property was seized.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 40. Arrest for Failing to Appear in Another District

2011-03-11T14:00:33Z

Aellis:

(a) In General.

A person must be taken without unnecessary delay before a magistrate judge in the district of arrest if the person has been arrested under a warrant issued in another district for:

(i) failing to appear—as required by the terms of that person’s release under 18 U.S.C. §§ 3141–3156 or by a subpoena; or

(ii) violating conditions of release set in another district.

(b) Proceedings.

The judge must proceed under Rule 5(c)(3) as applicable.

(c) Release or Detention Order.

The judge may modify any previous release or detention order issued in another district, but must state in writing the reasons for doing so.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 38. Staying a Sentence or a Disability

2011-03-11T14:00:00Z

Aellis:

(a) Death Sentence.

The court must stay a death sentence if the defendant appeals the conviction or sentence.

(b) Imprisonment.

(1) Stay Granted.
If the defendant is released pending appeal, the court must stay a sentence of imprisonment.

(2) Stay Denied; Place of Confinement.

If the defendant is not released pending appeal, the court may recommend to the Attorney General that the defendant be confined near the place of the trial or appeal for a period reasonably necessary to permit the defendant to assist in preparing the appeal.

(c) Fine.

If the defendant appeals, the district court, or the court of appeals under Federal Rule of Appellate Procedure 8, may stay a sentence to pay a fine or a fine and costs. The court may stay the sentence on any terms considered appropriate and may require the defendant to:

(1) deposit all or part of the fine and costs into the district court's registry pending appeal;

(2) post a bond to pay the fine and costs; or

(3) submit to an examination concerning the defendant's assets and, if appropriate, order the defendant to refrain from dissipating assets.

(d) Probation.

If the defendant appeals, the court may stay a sentence of probation. The court must set the terms of any stay.

(e) Restitution and Notice to Victims.

(1) In General.

If the defendant appeals, the district court, or the court of appeals under Federal Rule of Appellate Procedure 8, may stay -- on any terms considered appropriate -- any sentence providing for restitution under 18 U.S.C. § 3556 or notice under 18 U.S.C. § 3555.

(2) Ensuring Compliance.

The court may issue any order reasonably necessary to ensure compliance with a restitution order or a notice order after disposition of an appeal, including:

(A) a restraining order;

(B) an injunction;

(C) an order requiring the defendant to deposit all or part of any monetary restitution into the district court's registry; or

(D) an order requiring the defendant to post a bond.

(f) Forfeiture.

A stay of a forfeiture order is governed by Rule 32.2(d).

(g) Disability.

If the defendant's conviction or sentence creates a civil or employment disability under federal law, the district court, or the court of appeals under Federal Rule of Appellate Procedure 8, may stay the disability pending appeal on any terms considered appropriate. The court may issue any order reasonably necessary to protect the interest represented by the disability pending appeal, including a restraining order or an injunction.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 36. Clerical Error

2011-03-11T13:59:23Z

Aellis:

After giving any notice it considers appropriate, the court may at any time correct a clerical error in a judgment, order, or other part of the record, or correct an error in the record arising from oversight or omission.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 35. Correcting or Reducing a Sentence

2011-03-11T13:58:55Z

Aellis:

(a) Correcting Clear Error.

Within 14 days after sentencing, the court may correct a sentence that resulted from arithmetical, technical, or other clear error.

(b) Reducing a Sentence for Substantial Assistance.

(1) In General.

Upon the government's motion made within one year of sentencing, the court may reduce a sentence if the defendant, after sentencing, provided substantial assistance in investigating or prosecuting another person.

(2) Later Motion.

Upon the government's motion made more than one year after sentencing, the court may reduce a sentence if the defendant's substantial assistance involved:

(A) information not known to the defendant until one year or more after sentencing;

(B) information provided by the defendant to the government within one year of sentencing, but which did not become useful to the government until more than one year after sentencing; or

(C) information the usefulness of which could not reasonably have been anticipated by the defendant until more than one year after sentencing and which was promptly provided to the government after its usefulness was reasonably apparent to the defendant.

(3) Evaluating Substantial Assistance.

In evaluating whether the defendant has provided substantial assistance, the court may consider the defendant's presentence assistance.

(4) Below Statutory Minimum.

When acting under Rule 35(b), the court may reduce the sentence to a level below the minimum sentence established by statute.

(c) “Sentencing” Defined.

As used in this rule, “sentencing” means the oral announcement of the sentence.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 34. Arresting Judgment

2011-03-11T13:58:19Z

Aellis:

(a) In General.

Upon the defendant's motion or on its own, the court must arrest judgment if:

(1) the indictment or information does not charge an offense; or

(2) the court does not have jurisdiction of the charged offense.

(b) Time to File.

The defendant must move to arrest judgment within 14 days after the court accepts a verdict or finding of guilty, or after a plea of guilty or nolo contendere.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 33. New Trial

2011-03-11T13:57:51Z

Aellis:

(a) Defendant's Motion.

Upon the defendant's motion, the court may vacate any judgment and grant a new trial if the interest of justice so requires. If the case was tried without a jury, the court may take additional testimony and enter a new judgment.

(b) Time to File.

(1) Newly Discovered Evidence.

Any motion for a new trial grounded on newly discovered evidence must be filed within 3 years after the verdict or finding of guilty. If an appeal is pending, the court may not grant a motion for a new trial until the appellate court remands the case.

(2) Other Grounds.

Any motion for a new trial grounded on any reason other than newly discovered evidence must be filed within 14 days after the verdict or finding of guilty.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 32.2. Criminal Forfeiture

2011-03-11T13:57:18Z

Aellis:

(a) Notice to the Defendant.

A court must not enter a judgment of forfeiture in a criminal proceeding unless the indictment or information contains notice to the defendant that the government will seek the forfeiture of property as part of any sentence in accordance with the applicable statute. The notice should not be desimated as a count of the indictment or information. The indictment or information need not identify the property subiect to forfeiture or specify the amount of any

(b) Entering a Preliminary Order of Forfeiture.

(1) Forfeiture Phase of the Trial.

(A) Forfeiture Determination

As soon as practicable after a verdict or finding of guilty, or after a plea of guilty or nolo contendere is accepted, on any count in an indictment or information regarding which criminal forfeiture is sought, the court must determine what property is subject to forfeiture under the applicable statute. If the government seeks forfeiture of specific property, the court must determine whether the government has established the requisite nexus between the property and the offense. If the government seeks a personal money judgment, the court must determine the amount of money that the defendant will be ordered to pay.

(B) Evidence and Hearing

The court’s determination may be based on evidence already in the record, including any written plea agreement, and on any additional evidence or information submitted by the parties and accepted by the court as relevant and reliable. If the forfeiture is contested, on evidence or information presented by the parties at a hearing after the verdict or finding of guilt.

(2) Preliminary Order.

(A) Contents of a Specific Order.

If the court finds that property is subject to forfeiture, it must promptly enter a preliminary order of forfeiture setting forth the amount of any money judgment, directing the forfeiture of specific property, and directing the forfeiture of any substitute property if the government has met the statutory criteria. The court must enter the order without regard to any third party's interest in the property. Determining whether a third party has such an interest must be deferred until any third party files a claim in an ancillary proceeding under Rule 32.2(c).

(B) Timing.

Unless doing so is impractical, the court must enter the preliminary order sufficiently in advance of sentencing to allow the parties to suggest revisions or modifications before the order becomes final as to the defendant under Rule 32.2(b)(4).

(C) General Order.

If, before sentencing, the court cannot identify all the specific property subject to forfeiture or calculate the total amount of the money judgment, the court may enter a forfeiture order that:

(i) lists any identified property;

(ii) describes other property in general terms; and

(iii) states that the order will be amended under Rule 32.2(e)(1) when additional specific property is identified or the amount of the money judgment has been calculated.

(3) Seizing Property.

The entry of a preliminary order of forfeiture authorizes the Attorney General (or a designee) to seize the specific property subject to forfeiture; to conduct any discovery the court considers proper in identifying, locating, or disposing of the property; and to commence proceedings that comply with any statutes governing third-party rights. The court may include in the order of forfeiture conditions reasonably necessary to preserve the property's value pending any appeal.

(4) Sentence and Judgment.

(A) When Final.

At sentencing or at any time before sentencing if the defendant consents the preliminary forfeiture order becomes final as to the defendant. If the order directs the defendant to forfeit specific property, it remains preliminary as to third parties until the ancillary proceeding is concluded under Rule 32.2(c).

(B) Notice and Inclusion in the Judgment.

The court must include the forfeiture when orally announcing the sentence or must otherwise ensure that the defendant knows of the forfeiture at sentencing. The court must also include the forfeiture order, directly or by reference, in the judgment, but the court's failure to do so may be corrected at any time under Rule 36.

(C) Time to Appeal.

The time for the defendant or the government to file an appeal from the forfeiture order, or from the court's failure to enter an order, begins to run when judgment is entered. If the court later amends or declines to amend a forfeiture order to include additional property under Rule 32.2(e), the defendant or the government may file an appeal regarding that property under Federal Rule of Appellate Procedure 4(b). The time for that appeal runs from the date when the order granting or denying the amendment becomes final.

(5) Jury Determination.

(A) Retaining the Jury.

In any case tried before a jury, if the indictment or information states that the government is seeking forfeiture, the court must determine before the jury begins deliberating whether either party requests that the jury be retained to determine the forfeitability of specific property if it returns a guilty verdict.

(B) Special Verdict Form.

If a party timely requests to have the jury determine forfeiture, the government must submit a proposed Special Verdict Form listing each property subject to forfeiture and asking the jury to determine whether the government has established the requisite nexus between the property and the offense committed by the defendant.

(6) Notice of the Forfeiture Order.

(A) Publishing and Sending Notice.

If the court orders the forfeiture of specific property, the government must publish notice of the order and send notice to any person who reasonably appears to be a potential claimant with standing to contest the forfeiture in the ancillary proceeding.

(B) Content of the Notice.

The notice must describe the forfeited property, state the times under the applicable statute when a petition contesting the forfeiture must be filed, and state the name and contact information for the government attorney to be served with the petition.

(C) Means of Publication; Exceptions to Publication Requirement.

Publication must take place as described in Supplemental Rule G(4)(a)(iii) of the Federal Rules of Civil Procedure, and may be by any means described in Supplemental Rule G(4)(a)(iv). Publication is unnecessary if any exception in Supplemental Rule G(4)(a)(i) applies.

(D) Means of Sending the Notice.

The notice may be sent in accordance with Supplemental Rules G(4)(b)(iii)-(v) of the Federal Rules of Civil Procedure.

(7) Interlocutory Sale.

At any time before entry of a final forfeiture order, the court, in accordance with Supplemental Rule G(7) of the Federal Rules of Civil Procedure, may order the interlocutory sale of property alleged to be forfeitable.

(c) Ancillary Proceeding; Entering a Final Order of Forfeiture.

(1) In General.

If, as prescribed by statute, a third party files a petition asserting an interest in the property to be forfeited, the court must conduct an ancillary proceeding, but no ancillary proceeding is required to the extent that the forfeiture consists of a money judgment.

(A) In the ancillary proceeding, the court may, on motion, dismiss the petition for lack of standing, for failure to state a claim, or for any other lawful reason. For purposes of the motion, the facts set forth in the petition are assumed to be true.

(B) After disposing of any motion filed under Rule 32.2(c)(1)(A) and before conducting a hearing on the petition, the court may permit the parties to conduct discovery in accordance with the Federal Rules of Civil Procedure if the court determines that discovery is necessary or desirable to resolve factual issues. When discovery ends, a party may move for summary judgment under Federal Rule of Civil Procedure 56.

(2) Entering a Final Order.

When the ancillary proceeding ends, the court must enter a final order of forfeiture by amending the preliminary order as necessary to account for any third-party rights. If no third party files a timely petition, the preliminary order becomes the final order of forfeiture if the court finds that the defendant (or any combination of defendants convicted in the case) had an interest in the property that is forfeitable under the applicable statute. The defendant may not object to the entry of the final order on the ground that the property belongs, in whole or in part, to a codefendant or third party; nor may a third party object to the final order on the ground that the third party had an interest in the property.

(3) Multiple Petitions.

If multiple third-party petitions are filed in the same case, an order dismissing or granting one petition is not appealable until rulings are made on all the petitions, unless the court determines that there is no just reason for delay.

(4) Ancillary Proceeding Not Part of Sentencing.

An ancillary proceeding is not part of sentencing.

(d) Stay Pending Appeal.

If a defendant appeals from a conviction or an order of forfeiture, the court may stay the order of forfeiture on terms appropriate to ensure that the property remains available pending appellate review. A stay does not delay the ancillary proceeding or the determination of a third party’s rights or interests. If the court rules in favor of any third party while an appeal is pending, the court may amend the order of forfeiture but must not transfer any property interest to a third party until the decision on appeal becomes final, unless the defendant consents in writing or on the record.

(e) Subsequently Located Property; Substitute Property.

(1) In General.

On the government’s motion, the court may at any time enter an order of forfeiture or amend an existing order of forfeiture to include property that:

(A) is subject to forfeiture under an existing order of forfeiture but was located and identified after that order was entered; or

(B) is substitute property that qualifies for forfeiture under an applicable statute.

(2) Procedure.

If the government shows that the property is subject to forfeiture under Rule 32.2(e)(1), the court must:

(A) enter an order forfeiting that property, or amend an existing preliminary or final order to include it; and

(B) if a third party files a petition claiming an interest in the property, conduct an ancillary proceeding under Rule 32.2(c).

(3) Jury Trial Limited.

There is no right to a jury trial under Rule 32.2(e).

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 32.1. Revoking or Modifying Probation or Supervised Release

2011-03-11T13:56:23Z

Aellis:

(a) Initial Appearance.

(1) Person In Custody.

A person held in custody for violating probation or supervised release must be taken without unnecessary delay before a magistrate judge.

(A) If the person is held in custody in the district where an alleged violation occurred, the initial appearance must be in that district.

(B) If the person is held in custody in a district other than where an alleged violation occurred, the initial appearance must be in that district, or in an adjacent district if the appearance can occur more promptly there.

(2) Upon a Summons.

When a person appears in response to a summons for violating probation or supervised release, a magistrate judge must proceed under this rule.

(3) Advice.

The judge must inform the person of the following:

(A) the alleged violation of probation or supervised release;

(B) the person’s right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and

(C) the person’s right, if held in custody, to a preliminary hearing under Rule 32.1(b)(1).

(4) Appearance in the District With Jurisdiction.

If the person is arrested or appears in the district that has jurisdiction to conduct a revocation hearing—either originally or by transfer of jurisdiction—the court must proceed under Rule 32.1(b)–(e).

(5) Appearance in a District Lacking Jurisdiction.

If the person is arrested or appears in a district that does not have jurisdiction to conduct a revocation hearing, the magistrate judge must:

(A) if the alleged violation occurred in the district of arrest, conduct a preliminary hearing under Rule 32.1(b) and either:

(i) transfer the person to the district that has jurisdiction, if the judge finds probable cause to believe that a violation occurred; or

(ii) dismiss the proceedings and so notify the court that has jurisdiction, if the judge finds no probable cause to believe that a violation occurred; or

(B) if the alleged violation did not occur in the district of arrest, transfer the person to the district that has jurisdiction if:

(i) the government produces certified copies of the judgment, warrant, and warrant application, or produces copies of those certified documents by reliable electronic means; and

(ii) the judge finds that the person is the same person named in the warrant.

(6) Release or Detention.

The magistrate judge may release or detain the person under 18 U.S.C. § 3143(a)(1) pending further proceedings. The burden of establishing by clear and convincing evidence that the person will not flee or pose a danger to any other person or to the community rests with the person.(a) pending further proceedings. The burden of establishing that the person will not flee or pose a danger to any other person or to the community rests with the person.

(b) Revocation.

(1) Preliminary Hearing.

(A) In General.

If a person is in custody for violating a condition of probation or supervised release, a magistrate judge must promptly conduct a hearing to determine whether there is probable cause to believe that a violation occurred. The person may waive the hearing.

(B) Requirements.

The hearing must be recorded by a court reporter or by a suitable recording device. The judge must give the person:

(i) notice of the hearing and its purpose, the alleged violation, and the person’s right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel;

(ii) an opportunity to appear at the hearing and present evidence; and

(iii) upon request, an opportunity to question any adverse witness, unless the judge determines that the interest of justice does not require the witness to appear.

(C) Referral.

If the judge finds probable cause, the judge must conduct a revocation hearing. If the judge does not find probable cause, the judge must dismiss the proceeding.

(2) Revocation Hearing.

Unless waived by the person, the court must hold the revocation hearing within a reasonable time in the district having jurisdiction. The person is entitled to:

(A) written notice of the alleged violation;

(B) disclosure of the evidence against the person;

(C) an opportunity to appear, present evidence, and question any adverse witness unless the court determines that the interest of justice does not require the witness to appear;

(D) notice of the person’s right to retain counsel or to request that counsel be appointed if the person cannot obtain counsel; and

(E) an opportunity to make a statement and present any information in mitigation.

(c) Modification.

(1) In General.

Before modifying the conditions of probation or supervised release, the court must hold a hearing, at which the person has the right to counsel and an opportunity to make a statement and present any information in mitigation.

(2) Exceptions.

A hearing is not required if:

(A) the person waives the hearing; or

(B) the relief sought is favorable to the person and does not extend the term of probation or of supervised release; and

(C) an attorney for the government has received notice of the relief sought, has had a reasonable opportunity to object, and has not done so.

(d) Disposition of the Case.

The court’s disposition of the case is governed by 18 U.S.C. § 3563 and § 3565 (probation) and § 3583 (supervised release).

(e) Producing a Statement.

Rule 26.2(a)–(d) and (f) applies at a hearing under this rule. If a party fails to comply with a Rule 26.2 order to produce a witness’s statement, the court must not consider that witness’s testimony.

----

See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 32. Sentencing and Judgment

2011-03-11T13:55:33Z

Aellis:

(a) [Reserved.]

(b) Time of Sentencing.

(1) In General.

The court must impose sentence without unnecessary delay.

(2) Changing Time Limits.

The court may, for good cause, change any time limits prescribed in this rule.

(c) Presentence Investigation.

(1) Required Investigation.

(A) In General.

The probation officer must conduct a presentence investigation and submit a report to the court before it imposes sentence unless:

(i) 18 U.S.C. § 3593(c) or another statute requires otherwise; or

(ii) the court finds that the information in the record enables it to meaningfully exercise its sentencing authority under 18 U.S.C. § 3553, and the court explains its finding on the record.

(B) Restitution.

If the law permits restitution, the probation officer must conduct an investigation and submit a report that contains sufficient information for the court to order restitution.

(2) Interviewing the Defendant.

The probation officer who interviews a defendant as part of a presentence investigation must, on request, give the defendant’s attorney notice and a reasonable opportunity to attend the interview.

(d) Presentence Report.

(1) Applying the Advisory Sentencing Guidelines.

The presentence report must:

(A) identify all applicable guidelines and policy statements of the Sentencing Commission;

(B) calculate the defendant’s offense level and criminal history category;

(C) state the resulting sentencing range and kinds of sentences available;

(D) identify any factor relevant to:

(i) the appropriate kind of sentence, or

(ii) the appropriate sentence within the applicable sentencing range; and

(E) identify any basis for departing from the applicable sentencing range.

(2) Additional Information.

The presentence report must also contain the following:

(A) the defendant’s history and characteristics, including:

(i) any prior criminal record;

(ii) the defendant’s financial condition; and

(iii) any circumstances affecting the defendant’s behavior that may be helpful in imposing sentence or in correctional treatment;

(B) information that assesses any financial, social, psychological, and medical impact on any victim;

(C) when appropriate, the nature and extent of nonprison programs and resources available to the defendant;

(D) when the law provides for restitution, information sufficient for a restitution order;

(E) if the court orders a study under 18 U.S.C. § 3552(b), any resulting report and recommendation; and

(F) any other information that the court requires, including information relevant to the factors under 18 U.S.C. § 3553(a).

(G) specifiy whether the government seeks forfeiture under Rule 32.2 and any other provision of law.

(3) Exclusions.

The presentence report must exclude the following:

(A) any diagnoses that, if disclosed, might seriously disrupt a rehabilitation program;

(B) any sources of information obtained upon a promise of confidentiality; and

(C) any other information that, if disclosed, might result in physical or other harm to the defendant or others.

(e) Disclosing the Report and Recommendation.

(1) Time to Disclose.

Unless the defendant has consented in writing, the probation officer must not submit a presentence report to the court or disclose its contents to anyone until the defendant has pleaded guilty or nolo contendere, or has been found guilty.

(2) Minimum Required Notice.

The probation officer must give the presentence report to the defendant, the defendant’s attorney, and an attorney for the government at least 35 days before sentencing unless the defendant waives this minimum period.

(3) Sentence Recommendation.

By local rule or by order in a case, the court may direct the probation officer not to disclose to anyone other than the court the officer’s recommendation on the sentence.

(f) Objecting to the Report.

(1) Time to Object.

Within 14 days after receiving the presentence report, the parties must state in writing any objections, including objections to material information, sentencing guideline ranges, and policy statements contained in or omitted from the report.

(2) Serving Objections.

An objecting party must provide a copy of its objections to the opposing party and to the probation officer.

(3) Action on Objections.

After receiving objections, the probation officer may meet with the parties to discuss the objections. The probation officer may then investigate further and revise the presentence report as appropriate.

(g) Submitting the Report.

At least 14 days before sentencing, the probation officer must submit to the court and to the parties the presentence report and an addendum containing any unresolved objections, the grounds for those objections, and the probation officer’s comments on them.

(h) Notice of Possible Departure from Sentencing Guidelines.

Before the court may depart from the applicable sentencing range on a ground not identified for departure either in the presentence report or in a party’s prehearing submission, the court must give the parties reasonable notice that it is contemplating such a departure. The notice must specify any ground on which the court is contemplating a departure.

(i) Sentencing.

(1) In General.

At sentencing, the court:

(A) must verify that the defendant and the defendant’s attorney have read and discussed the presentence report and any addendum to the report;

(B) must give to the defendant and an attorney for the government a written summary of—or summarize in camera —any information excluded from the presentence report under Rule 32(d)(3) on which the court will rely in sentencing, and give them a reasonable opportunity to comment on that information;

(C) must allow the parties’ attorneys to comment on the probation officer’s determinations and other matters relating to an appropriate sentence; and

(D) may, for good cause, allow a party to make a new objection at any time before sentence is imposed.

(2) Introducing Evidence; Producing a Statement.

The court may permit the parties to introduce evidence on the objections. If a witness testifies at sentencing, Rule 26.2(a)–(d) and (f) applies. If a party fails to comply with a Rule 26.2 order to produce a witness’s statement, the court must not consider that witness’s testimony.

(3) Court Determinations.

At sentencing, the court:

(A) may accept any undisputed portion of the presentence report as a finding of fact;

(B) must—for any disputed portion of the presentence report or other controverted matter—rule on the dispute or determine that a ruling is unnecessary either because the matter will not affect sentencing, or because the court will not consider the matter in sentencing; and

(C) must append a copy of the court’s determinations under this rule to any copy of the presentence report made available to the Bureau of Prisons.

(4) Opportunity to Speak.

(A) By a Party.

Before imposing sentence, the court must:

(i) provide the defendant’s attorney an opportunity to speak on the defendant’s behalf;

(ii) address the defendant personally in order to permit the defendant to speak or present any information to mitigate the sentence; and

(iii) provide an attorney for the government an opportunity to speak equivalent to that of the defendant’s attorney.

(B) By a Victim.

Before imposing sentence, the court must address any victim of the crime who is present at sentencing and must permit the victim to be reasonably heard.

(C) By a Victim of a Felony Offense.

Before imposing sentence, the court must address any victim of a felony offense, not involving violence or sexual abuse, who is present at sentencing and must permit the victim to speak or submit any information about the sentence. If the felony offense involved multiple victims, the court may limit the number of victims who will address the court.

(D) In Camera Proceedings.

Upon a party’s motion and for good cause, the court may hear in camera any statement made under Rule 32(i)(4).

(j) Defendant's Right to Appeal.

(1) Advice of a Right to Appeal.

(A) Appealing a Conviction.

If the defendant pleaded not guilty and was convicted, after sentencing the court must advise the defendant of the right to appeal the conviction.

(B) Appealing a Sentence.

After sentencing—regardless of the defendant’s plea—the court must advise the defendant of any right to appeal the sentence.

(C) Appeal Costs.

The court must advise a defendant who is unable to pay appeal costs of the right to ask for permission to appeal in forma pauperis.

(2) Clerk's Filing of Notice.

If the defendant so requests, the clerk must immediately prepare and file a notice of appeal on the defendant’s behalf.

(k) Judgment.

(1) In General.

In the judgment of conviction, the court must set forth the plea, the jury verdict or the court’s findings, the adjudication, and the sentence. If the defendant is found not guilty or is otherwise entitled to be discharged, the court must so order. The judge must sign the judgment, and the clerk must enter it.

(2) Criminal Forfeiture.

Forfeiture procedures are governed by Rule 32.2.

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See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 31. Jury Verdict

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Aellis:

(a) Return.

The jury must return its verdict to a judge in open court. The verdict must be unanimous.

(b) Partial Verdicts, Mistrial, and Retrial.

(1) Multiple Defendants.

If there are multiple defendants, the jury may return a verdict at any time during its deliberations as to any defendant about whom it has agreed.

(2) Multiple Counts.

If the jury cannot agree on all counts as to any defendant, the jury may return a verdict on those counts on which it has agreed.

(3) Mistrial and Retrial.

If the jury cannot agree on a verdict on one or more counts, the court may declare a mistrial on those counts. The government may retry any defendant on any count on which the jury could not agree.

(c) Lesser Offense or Attempt.

A defendant may be found guilty of any of the following:

(1) an offense necessarily included in the offense charged;

(2) an attempt to commit the offense charged; or

(3) an attempt to commit an offense necessarily included in the offense charged, if the attempt is an offense in its own right.

(d) Jury Poll.

After a verdict is returned but before the jury is discharged, the court must on a party's request, or may on its own, poll the jurors individually. If the poll reveals a lack of unanimity, the court may direct the jury to deliberate further or may declare a mistrial and discharge the jury.

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See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 30. Jury Instructions

2011-03-11T13:53:35Z

Aellis:

(a) In General.

Any party may request in writing that the court instruct the jury on the law as specified in the request. The request must be made at the close of the evidence or at any earlier time that the court reasonably sets. When the request is made, the requesting party must furnish a copy to every other party.

(b) Ruling on a Request.

The court must inform the parties before closing arguments how it intends to rule on the requested instructions.

(c) Time for Giving Instructions.

The court may instruct the jury before or after the arguments are completed, or at both times.

(d) Objections to Instructions.

A party who objects to any portion of the instructions or to a failure to give a requested instruction must inform the court of the specific objection and the grounds for the objection before the jury retires to deliberate. An opportunity must be given to object out of the jury's hearing and, on request, out of the jury's presence. Failure to object in accordance with this rule precludes appellate review, except as permitted under Rule 52(b).

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See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 29.1. Closing Argument

2011-03-11T13:53:07Z

Aellis:

Closing arguments proceed in the following order:

(a) the government argues;

(b) the defense argues; and

(c) the government rebuts.

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See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 29. Motion for a Judgment of Acquittal

2011-03-11T13:52:39Z

Aellis:

(a) Before Submission to the Jury.

After the government closes its evidence or after the close of all the evidence, the court on the defendant's motion must enter a judgment of acquittal of any offense for which the evidence is insufficient to sustain a conviction. The court may on its own consider whether the evidence is insufficient to sustain a conviction. If the court denies a motion for a judgment of acquittal at the close of the government's evidence, the defendant may offer evidence without having reserved the right to do so.

(b) Reserving Decision.

The court may reserve decision on the motion, proceed with the trial (where the motion is made before the close of all the evidence), submit the case to the jury, and decide the motion either before the jury returns a verdict or after it returns a verdict of guilty or is discharged without having returned a verdict. If the court reserves decision, it must decide the motion on the basis of the evidence at the time the ruling was reserved.

(c) After Jury Verdict or Discharge.

(1) Time for a Motion.

A defendant may move for a judgment of acquittal, or renew such a motion, within 14 days after a guilty verdict or after the court discharges the jury, whichever is later.

(2) Ruling on the Motion.

If the jury has returned a guilty verdict, the court may set aside the verdict and enter an acquittal. If the jury has failed to return a verdict, the court may enter a judgment of acquittal.

(3) No Prior Motion Required.

A defendant is not required to move for a judgment of acquittal before the court submits the case to the jury as a prerequisite for making such a motion after jury discharge.

(d) Conditional Ruling on a Motion for a New Trial.

(1) Motion for a New Trial.

If the court enters a judgment of acquittal after a guilty verdict, the court must also conditionally determine whether any motion for a new trial should be granted if the judgment of acquittal is later vacated or reversed. The court must specify the reasons for that determination.

(2) Finality.

The court's order conditionally granting a motion for a new trial does not affect the finality of the judgment of acquittal.

(3) Appeal.

(A) Grant of a Motion for a New Trial.

If the court conditionally grants a motion for a new trial and an appellate court later reverses the judgment of acquittal, the trial court must proceed with the new trial unless the appellate court orders otherwise.

(B) Denial of a Motion for a New Trial.

If the court conditionally denies a motion for a new trial, an appellee may assert that the denial was erroneous. If the appellate court later reverses the judgment of acquittal, the trial court must proceed as the appellate court directs.

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See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 28. Interpreters

2011-03-11T13:51:54Z

Aellis:

The court may select, appoint, and set the reasonable compensation for an interpreter. The compensation must be paid from funds provided by law or by the government, as the court may direct.

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See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 27. Proving an Official Record

2011-03-11T13:51:34Z

Aellis:

A party may prove an official record, an entry in such a record, or the lack of a record or entry in the same manner as in a civil action.

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See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 26.3. Mistrial

2011-03-11T13:51:11Z

Aellis:

Before ordering a mistrial, the court must give each defendant and the government an opportunity to comment on the propriety of the order, to state whether that party consents or objects, and to suggest alternatives.

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See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 26.2. Producing a Witness's Statement

2011-03-11T13:50:47Z

Aellis:

(a) Motion to Produce.

After a witness other than the defendant has testified on direct examination, the court, on motion of a party who did not call the witness, must order an attorney for the government or the defendant and the defendant's attorney to produce, for the examination and use of the moving party, any statement of the witness that is in their possession and that relates to the subject matter of the witness's testimony.

(b) Producing the Entire Statement.

If the entire statement relates to the subject matter of the witness's testimony, the court must order that the statement be delivered to the moving party.

(c) Producing a Redacted Statement.

If the party who called the witness claims that the statement contains information that is privileged or does not relate to the subject matter of the witness's testimony, the court must inspect the statement in camera. After excising any privileged or unrelated portions, the court must order delivery of the redacted statement to the moving party. If the defendant objects to an excision, the court must preserve the entire statement with the excised portion indicated, under seal, as part of the record.

(d) Recess to Examine a Statement.

The court may recess the proceedings to allow time for a party to examine the statement and prepare for its use.

(e) Sanction for Failure to Produce or Deliver a Statement.
If the party who called the witness disobeys an order to produce or deliver a statement, the court must strike the witness's testimony from the record. If an attorney for the government disobeys the order, the court must declare a mistrial if justice so requires.

(f) "Statement" Defined.

As used in this rule, a witness's "statement'' means:

(1) a written statement that the witness makes and signs, or otherwise adopts or approves;

(2) a substantially verbatim, contemporaneously recorded recital of the witness's oral statement that is contained in any recording or any transcription of a recording; or

(3) the witness's statement to a grand jury, however taken or recorded, or a transcription of such a statement.

(g) Scope.

This rule applies at trial, at a suppression hearing under Rule 12, and to the extent specified in the following rules:

(1) Rule 5.1(h) (preliminary hearing);

(2) Rule 32(i) (2)(sentencing);

(3) Rule 32.1(e) (hearing to revoke or modify probation or supervised release);

(4) Rule 46(j) (detention hearing); and

(5) Rule 8 of the Rules Governing Proceedings under 28 U.S.C. § 2255.

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See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 26.1. Foreign Law Determination

2011-03-11T13:50:13Z

Aellis:

A party intending to raise an issue of foreign law must provide the court and all parties with reasonable written notice. Issues of foreign law are questions of law, but in deciding such issues a court may consider any relevant material or source -- including testimony -- without regard to the Federal Rules of Evidence.

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See [[Federal Rules of Criminal Procedure]]

Federal Rules of Criminal Procedure - Rule 26. Taking Testimony

2011-03-11T13:49:51Z

Aellis:

In every trial the testimony of witnesses must be taken in open court, unless otherwise provided by a statute or by rules adopted under 28 U.S.C. 2072-2077.

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See [[Federal Rules of Criminal Procedure]]