Fair Trial Rights Research Articles

The International Criminal Tribunal for the Former Yugoslavia and Fair Trial Rights: A Closer Look

In a recent article lamenting the perception of partiality created by an activist judge of the International Criminal Tribunal for the former Yugoslavia (ICTY), one commentator observed the general lack of scrutiny to which the ICTY is being held in its treatment of the rights of the accused. He noted that it “is a court without legal critics: no complaint about its conduct may be made to the Human Rights Committee in Geneva or to the European Court [of Human Rights], and human rights lobbies have tended to look the other way.” Indeed, it is in a position that many governments, fatigued by what many of them consider to be cumbersome reporting obligations and troublesome individual complaints procedures under the United Nations treaty body system, would envy.

Free press and fair trial: The role of behavioral research.

The growth of mass media has complicated the relatioship between the courts and the media. Free press and fair trial rights are kept in balance by the use of judicial restraints and remedies such asvoir dire, change of venue, and gag orders. This balance has shifted back and forth during the past two decades. Current case law and legal codes are inconsistent and provide insufficient guidance to judges in their use of restraints and remedies. Nor is there a body of empirical research on the impact of news coverage and juror behavior capable of informing the courts at this time. In this paper, we review and critically assess the empirical social science literature as it pertains to the legal issues involving free press and fair trial. We argue that carefully conducted empirical research could provide important information to the courts. We suggest research directions and methodological caveats to increase legal relevance and scientific validity.

Prior Restraints on Freedom of Expression by Defendants and Defense Attorneys: Ratio Decidendi v. Obiter Dictum

Nebraska Press Association v. Stuart' presents Supreme Court's most strenuous disapproval of prior restraints on press to date. Despite its concern for first amendment rights of press, however, Court showed no such solicitude for free speech rights of defendants and their attorneys. Instead, two major opinions2 in Nebraska Press Association both contain unsupported, conclusory language suggesting that special protection afforded press might somehow be inapplicable to restraints against defendants and defense attorneys.3 The implication is that in order to secure their rights to fair trials defendants may have to sacrifice their first amendment rights in process. That conclusion involves assumption that a defendant's exercise of free speech is capable -of denying state a fair trial. Even when defendant has been object of pervasive adverse publicity, however, Supreme Court has recognized that reversal of a conviction on ground that a fair trial has been denied is rarely required.4 Accordingly, a situation in which a defendant could generate publicity sufficient to prejudice case against prosecution scarcely can be imagined. More importantly, fears of defense-generated publicity ignore fundamental purpose of many of important constitutional guarantees: protecting individual from state, not reverse. The sixth amendment is concerned explicitly with fair trial rights of the accused, and fifth and fourteenth amendment rights to due process are

A Plea for Punishment

It would be natural to describe the Queen's procedure as the rejection of the basic individual right of fair trial; indeed had Alice lived in the present decade, one might with reason have drawn the matter to the attention of the International Commission of Jurists. And yet there is a respectable body of current opinion which makes demands which are not really very different in their essentials from those of the Queen, demands made by penal reformers for treatment first and no trial at all. Psychiatric care may now be substituted for execution in some cases, but this reflects only a difference of opinion on the relative efficacy of the two methods of treatment. And the Queen could at least claim for her proposal the absolute certainty of preventing further crimes by the same offender.The point of making this comparison between the Queen and the reformers is to raise again the question of punishment and responsibility, to claim that the very notions of crime, trial and punishment are in themselves such an important factor in the treatment of antisocial behaviour that we cannot afford to let them wither away. Some social and penal reformers may be aghast at such a claim, fearing that any such wilful deviation from the prevailing trend would lead eventually to the reintroduction of a purely retributive system; and in their eyes retribution conjures up, somewhat irrationally, pictures of pointless, brutal and in human punishments. Such fears are unfounded. It is not the efficacy of the various particular types of punishment which is at issue, but the efficacy of the whole conceptual scheme which some reformers seek to abolish.