Criminal Procedure Rights Research Articles

Pre-trial publicity: Freedom of the press versus fair trial rights in South Africa?

This article focuses on the impact upon the pending and trial criminal process by potentially prejudicial statements, or information of alleged fact, or opinion, published by the printed media, and its constitutional ramifications in both South African law and foreign law. The discussion centres on the conflict between the constitutional guarantee of a free press to report crime news in the written media, and the constitutional criminal procedural rights of an accused person to a fair trial. It investigates the sub judice rule as a mechanism to limit the prejudgement of issues in pending or imminent criminal litigation, which when offended, may constitute contempt of court ex facie curiae. The sub judice rule applied in South African criminal courts is compared to equivalent rules in Australia, United States, England and New Zealand, and the constitutionality of the South African sub judice rule is reconsidered.

Two Theories of Habeas Corpus

Determining the Writ of Habeas Corpus's appropriate role in the American criminal justice system has taken on new import because of controversy over the detention of accused terrorists. Unfortunately, the changes in habeas doctrine throughout the last century have mystified commentators. Without an understanding of where the writ has been, the courts are ill-equipped to chart its future. This article presents two unexplored theories that advance our understanding of habeas law. The first - the judicial-power theory - questions the accepted view that habeas guards individual liberty and interprets the writ as a device that the U.S. Supreme Court uses to enforce its right to proclaim the law. This interpretation of the writ explains each expansion and contraction of the doctrine more effectively than any existing theory. Despite its explanatory power, the judicial-power theory, like all prior theories, is incomplete because it assumes that habeas doctrine evolves in response to changing social attitudes external to the legal system. The second theory presented here explores how the ideology surrounding habeas has influenced those attitudes and legal doctrine. Habeas corpus embodies contradictory ideologies. A powerful liberty-supporting ideology has long helped to enable reformers to conceive of, and opponents to accept, new possibilities for expanding the rights of the accused. A counter-habeas ideology, however, sees the writ as a dangerous get-out-of-jail-free card that wrongly rewards those who deserve punishment. Ironically, this counter-habeas ideology has also advanced liberty interests by focusing law-enforcement-oriented attacks on the writ itself rather than on the substance of criminal procedure rights.

Media reporting and respect of human rights in criminal procedure

In this paper the cases from the practice of criminal courts in Serbia during 2004 are analyzed. On the basis of findings from monitoring of trials the author argues that incorrect media reporting has negative consequences on the right to fair trial political manipulation of media and biased and sensationalistic reporting are stressed. As a possible solution the author suggests education and restricted access to information during pre-trial procedure.

A Critical Perspective on Habeas Corpus History

Determining the appropriate role of habeas corpus in the American criminal justice system has taken on new import because of uncertainty over the proper means to prosecute and punish accused terrorists. Unfortunately, the existing histories of the Great Writ fail to explain the repeated expansions and contractions of habeas doctrine throughout the last century. Without an understanding of where habeas has been, the courts are ill-equipped to chart its future. This article criticizes prior habeas histories for their inability to explain the evolution of the doctrine. It then shows that greater understanding can be gained by discarding the myth that habeas is a guardian of individual liberty in favor of interpreting the writ as a device that the U.S. Supreme Court uses to enforce its right to proclaim the law. This interpretation of the writ explains each expansion and contraction of the doctrine more effectively than prior histories. Although liberty interests have likely played little role in the courts use of the writ as a remedy in specific cases, the ideology associated with habeas corpus has done much to further liberty interests. The final section of this article shows that, like prior histories of the writ, the one presented here essentially interprets doctrinal change as a response to external factors. That interpretation is true, but incomplete. To fully understand the development of habeas doctrine, one must also internalize the extent to which that doctrine, and the ideology surrounding it, helped create change. With respect to habeas, a powerful liberty-supporting ideology has long helped to enable reformers to conceive of, and opponents to accept, new possibilities for expanding the rights of the accused. Less obviously, a counter ideology that sees habeas as a dangerous get-out-of-jail-free card has, ironically, also advanced liberty interests. This ideology has focused the attacks of reformers who would narrow criminal procedure rights on the writ itself rather than the substance of those rights.

Quasi-Affirmative Rights in Constitutional Criminal Procedure

Constitutional criminal procedure is often seen as starkly libertarian, consisting exclusively or almost exclusively of negative rather than positive rights. But constitutional criminal procedure actually is replete with rights best understood as - affirmative conditions placed on actions that government cannot realistically be expected to forego. Although the traditional objections to affirmative rights also apply to quasi-affirmative rights, they apply less forcefully. This is particularly true in constitutional criminal procedure, where the pervasiveness of quasi-affirmative rights, the special severity of criminal penalties, and the reliance on evidentiary exclusion as a remedial device all make quasi-affirmative rights less objectionable than they may be elsewhere. Nonetheless, courts often fail to distinguish quasi-affirmative rights from affirmative rights. They appear to shy away from doctrinal paths in constitutional criminal procedure that seem to place any kind of affirmative obligation on government, even when the obligation in question is actually only quasi-affirmative. The result has been the underdevelopment of constitutional criminal procedure overall. This article presents four examples of quasi-affirmative rights in constitutional criminal procedure that courts have failed to develop, in each case largely because the right in question seems affirmative rather than negative. The first example involves the government's obligation to make provision for reasonably expeditious processing of warrant applications before claiming that exigent circumstances excused the failure to obtain a warrant in a particular case. The second concerns the government's duty to tape-record custodial interrogations of criminal suspects. The third has to do with the responsibility of police departments to promulgate rules reasonably constraining the discretion of individual officers in deciding whether and how to carry out searches and seizures. The fourth pertains to the obligation of the government to provide court-appointed counsel with some minimally adequate level of financial support. In each of these instances, judicial aversion to the proposed new right appears to have rested in significant part on an exaggerated sense of the jurisprudential difficulties it would raise. Recognizing the distinction between quasi-affirmative and affirmative rights may therefore make courts less reluctant to develop new quasi-affirmative rights in constitutional criminal procedure. It may also help courts to develop those rights in ways that minimize their dangers. The dangers are likely to be most effectively minimized by judicial strategies designed to promote ongoing dialog between the judiciary on the one hand and the political branches on the other. Two classes of such strategies seem particularly promising, and in fact are already in use in criminal procedure. The first consists of announcing rules that are in some sense reversible the by the political branches. The second relies on rules that, at least initially, require the government only to pay attention to a problem and to articulate the reasons for its response or lack thereof.

Identifying and (Re)formulating Prophylactic Rules, Safe Harbors, and Incidental Rights in Constitutional Criminal Procedure

The Miranda conundrum runs something like this. If the Miranda decision represents interpretation, and all unwarned statements taken during custodial interrogation are compelled within the meaning of the self-incrimination clause, the impeachment and fruits exceptions to Miranda should fall. If it is not interpretation, than the Court has no business reversing state criminal convictions for its violation. I offer here what I hope is a satisfying answer to this conundrum, on both descriptive and normative levels, that justifies not only Miranda but a host of similar Warren, Burger, and Rehnquist Court decisions as well. In Part I, I introduce and define the terms constitutional prophylactic rule, constitutional safe harbor rule, and constitutional incidental and attempt to legitimate their use. I further demonstrate that criminal procedure is so flush with such prophylactic and safe harbor rules and incidental rights that trying to eliminate them now, by either reversing a large number of criminal procedure cases or constitutionalizing all of those holdings, would do more harm than good. I propose that we accept the fact that these rules and rights are a fixed part of our landscape, and focus instead on minimizing their risks and maximizing their benefits. Thus, in Part II, I suggest that we can highlight their benefits; encouraging dialogue and cooperation between the federal judiciary and state and federal executive and legislative officers, fostering experimentation with new procedures that may work better, and providing the flexibility to respond to new empirical and social science data without reversing decisions; and cabin their risks; infringing on principles of federalism and separation of powers, hardening rules that should be flexible enough to respond to changing facts, and deflecting attention away from actual violations; by caution, deference, and what I call and truth-in-labeling. Caution requires the Court to refrain from creating prophylactic or safe harbor rules and incidental rights except where it clearly identifies the mandate of the clause at issue and/or the values underlying that clause, and then explains why a rule or right is necessary to protect or adjudicate that clause. Deference requires the Court to warn the other branches of the federal government and all branches of the state governments that some action is necessary, and act itself only if the other actors fail to offer alternative procedures that are within an acceptable range of functionality. Truth-in-labeling requires the Court to identify each doctrinal rule it creates as being either an explicit rule or remedy, or a prophylactic or safe harbor rule or incidental right, so that there is a clear signal that modification may be permissible. Finally, in Part III, I examine Chief Justice Rehnquist's embarrassing failure, in Dickerson v. United States, to acknowledge much less resolve the Miranda conundrum. Inexplicably, Miranda is no longer a prophylactic rule (dashing all hopes for dialogue with other branches and improved alternatives), though neither is it true interpretation. Thus, an opportunity for a Court description of the status and justification for the Miranda warnings, as well as an acknowledgment of the status and justification for the host of other Court-created rules and rights that do not precisely track the clause that they concern, was squandered.

Tracking Public Mood in the Supreme Court: Cross-Time Analyses of Criminal Procedure and Civil Rights Cases

Tracking Public Mood in the Supreme Court: Cross-Time Analyses of Criminal Procedure and Civil Rights Cases

Habermas, modernity and law

Introduction - Mathieu Deflem Law in Habermas's Theory of Communicative Action How Is Valid Law Possible? A Review of /f003Between Facts and Norms/f001 by J[um]urgen Habermas - David M Rasmussen Approaching the Production of Law through Habermas's Concept of Communicative Action - Pierre Guibentif Discourse Ethics and Human Rights in Criminal Procedure - Peter Bal On Reconstructive Legal and Political Theory - Bernhard Peters Postscript to /f003Between Facts and Norms - J[um]urgen Habermas Habermas, Modernity and Law - Mathieu Deflem A Bibliography

Discourse ethics and human rights in criminal procedure

L'A. s'interroge sur la legitimite de la loi, probleme deja souleve par Habermas et que l'A. applique ici au jugement legal concernant un crime. L'A. montre que le concept de droit est intimement lie a un systeme de valeurs et de references ethiques dont le discours legal est empreint

Waiving Rights in Criminal Procedure

Waiving Rights in Criminal Procedure

Human Rights in Criminal Procedure: A Comparative Study. Edited by J. A. Andrews. The Hague, Boston, London: Martinus Nijhoff Publishers, 1982. Pp. 451. Index. Dfl.195; $85.

Human Rights in Criminal Procedure: A Comparative Study. Edited by J. A. Andrews. The Hague, Boston, London: Martinus Nijhoff Publishers, 1982. Pp. 451. Index. Dfl.195; $85.

Human Rights in Criminal Procedure: A Comparative Study. Edited by J. A. Andrews. The Hague/Boston/London: Martinus Nijhoff Publishers, 1982. Pp. 451. Dfl. 195.00/U.S. $85.00.

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.

Human Rights in Criminal Procedure. Edited by John A. Andrews. The Hague: Martinus Nijhoff, 1982. Pp. 452 (U.S. $85.00).

Human Rights in Criminal Procedure. Edited by John A. Andrews. The Hague: Martinus Nijhoff, 1982. Pp. 452 (U.S. $85.00).

Human Rights in Criminal Procedure: a comparative study. Edited by J. A. Andrews. [The Hague; Martinus Nijhoff. 1982. 452pp. Dfl.195/$85

An abstract is not available for this content so a preview has been provided. Please use the Get access link above for information on how to access this content.

Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure

Away from Waiver: A Rationale for the Forfeiture of Constitutional Rights in Criminal Procedure

Protecting children from their families and themselves: State laws and the constitution

State laws provide a variety of means to protect children from self-inflicted or parentally-inflicted harm. In recent years, the Supreme Court has imposed stringent procedural requirements on juvenile delinquency laws. In the past year, however, the Court has refused to extend these procedural stringencies to analogous child-protective state laws. This article explores generally the rationale for court application, by constitutional mandate, of procedural safeguards to a broad range of child-protective legislation. The article suggests that some criminal-procedure rights are vitally important to protect children and their parents from inappropriate state interventions, but that wholesale application of all criminal rights, as if these laws were no different from criminal laws, unduly restricts proper application of these laws. Guidelines for determining what criminal rights should and should not be applied to child-protective legislation generally are suggested.