Overview
Every saint has a past and every sinner a future. Criminal law takes cognizance of this universal truth and every accused is provided with ample rights while deciding whether he/she has committed any offence. Prosecution guidelines provide for certain procedural niceties to be extended to a person accused of crime. After all, the law intends to punish the crime, not the criminal. Adversarial system views crime as a wrongdoing against the state and not against a particular person. The interests of the state are represented by the prosecuting attorney. As such, law views the offender sympathetically and treats him/her as innocent until proved guilty and passes the burden of proving the case to the prosecution. The defendant has a right to be presumed innocent unless and until the State has proven each and every element of the crime beyond a reasonable doubt. Thus, for instance, if a culpable mental state is required to prove a crime, the prosecution must prove that it existed at the time of commission of the offence.
Constitutional Rights
The United States Constitution guarantees a wide array of rights to the criminal defendant from the time of arrest through the trial proceedings. These include: the right to be free from any unreasonable search and seizure, to remain silent, to be tried before a judge or a jury, to summon witnesses and compel their attendance to testify on behalf of the defendant, and to confront and cross-examine any witness the State may call. The defendant in a criminal case has a right to a speedy trial and to be represented by an attorney and is entitled to have an attorney appointed by the court, if the defendant is unable to afford one. The defendant also has a right to consult an attorney or family members before pleading guilty or not guilty before the court.
The criminal proceedings begin by the initiation of a complaint by the purportedly injured person, the complainant. The police investigate about the complaint. A formal charging document called a complaint or an indictment brought by a grand jury is filed with a court in the proper jurisdiction.
The Right to Speedy Trial
The Sixth Amendment of the Constitution guarantees a criminal defendant the right to a speedy and public trial, in both state and federal courts, which means that the proceedings are to be completed within a reasonable time after the person being arrested. The defendant has a right to be informed of the nature and cause of the accusation. The Sixth Amendment also guarantees a criminal defendant the right to be tried before an “impartial jury,” which will consider the evidence against the defendant and decide whether to find him/her guilty. In almost all states, the concurrence of twelve jurors is necessary in order to find a defendant “guilty or not guilty.”
Right to be Free from Unreasonable Search and Seizure
Fourth Amendment to the U.S. Constitution guarantees the defendant the right to be free from any unreasonable search and seizure. The quintessence of the Amendment is that “every man’s house is his castle” and the rights to be secured in their persons, houses, papers, and other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause.”
Privilege against Self-incrimination
The defendant is entitled to a right under the Fifth Amendment to the U.S. Constitution to remain silent during the trial. In other words, the accused person can refuse to answer any questions or make any statements, if such answers or statements establish that the person committed a crime or is in any way connected to some criminal activity. As already mentioned above, the burden of proof of a crime is on the prosecution. However, no one including the prosecutor, the judge, and even the defendant’s lawyer can force the defendant to be a witness against himself/ herself if the person declines to do so. Furthermore, when a defendant exercises his or her right not to testify, the jury is not permitted to take such denial into consideration when deciding the question of liability. Thus, this is a prominent privilege to the criminal defendant. Nevertheless, the defendant cannot selectively answer questions that go against him/her. Once a defendant decides to testify at trial, he/she cannot ordinarily choose to answer some questions but not others. It is to be noted that the Fifth Amendment privilege does not apply when a defendant is fingerprinted, or made to provide a DNA sample in connection with a criminal accusation. Like a criminal defendant, witnesses are also entitled to refuse to answer certain questions by asserting their Fifth Amendment rights. However, this right is not extensive as that of the criminal defendants.
Conclusion
A criminal defendant is presumed to be innocent and accorded all humane considerations during the trial. Justice is not a one sided notion favoring the victim, but it looks at the accused person from a reformative angle. The punishments accorded to the criminal defendant are meant to reform the person and not a retributive measure. As such, in the pursuit of justice, law takes in to consideration, the rights of the accused.
Mr. Smith is a renowned Florida criminal defense attorney . The knowledge, experience, and killer instincts J. Layne Smith has honed over years of civil and administrative trials in insurance related cases makes him force when defending white collar crimes. Simply put, prosecutors do not have the background and depth of understanding Mr. Smith has, and he uses that advantage to the fullest extent, for your benefit.
Overview
Every saint has a past and every sinner a future. Criminal law takes cognizance of this universal truth and every accused is provided with ample rights while deciding whether he/she has committed any offence. Prosecution guidelines provide for certain procedural niceties to be extended to a person accused of crime. After all, the law intends to punish the crime, not the criminal. Adversarial system views crime as a wrongdoing against the state and not against a particular person. The interests of the state are represented by the prosecuting attorney. As such, law views the offender sympathetically and treats him/her as innocent until proved guilty and passes the burden of proving the case to the prosecution. The defendant has a right to be presumed innocent unless and until the State has proven each and every element of the crime beyond a reasonable doubt. Thus, for instance, if a culpable mental state is required to prove a crime, the prosecution must prove that it existed at the time of commission of the offence.
Constitutional Rights
The United States Constitution guarantees a wide array of rights to the criminal defendant from the time of arrest through the trial proceedings. These include: the right to be free from any unreasonable search and seizure, to remain silent, to be tried before a judge or a jury, to summon witnesses and compel their attendance to testify on behalf of the defendant, and to confront and cross-examine any witness the State may call. The defendant in a criminal case has a right to a speedy trial and to be represented by an attorney and is entitled to have an attorney appointed by the court, if the defendant is unable to afford one. The defendant also has a right to consult an attorney or family members before pleading guilty or not guilty before the court.
The criminal proceedings begin by the initiation of a complaint by the purportedly injured person, the complainant. The police investigate about the complaint. A formal charging document called a complaint or an indictment brought by a grand jury is filed with a court in the proper jurisdiction.
The Right to Speedy Trial
The Sixth Amendment of the Constitution guarantees a criminal defendant the right to a speedy and public trial, in both state and federal courts, which means that the proceedings are to be completed within a reasonable time after the person being arrested. The defendant has a right to be informed of the nature and cause of the accusation. The Sixth Amendment also guarantees a criminal defendant the right to be tried before an “impartial jury,” which will consider the evidence against the defendant and decide whether to find him/her guilty. In almost all states, the concurrence of twelve jurors is necessary in order to find a defendant “guilty or not guilty.”
Right to be Free from Unreasonable Search and Seizure
Fourth Amendment to the U.S. Constitution guarantees the defendant the right to be free from any unreasonable search and seizure. The quintessence of the Amendment is that “every man’s house is his castle” and the rights to be secured in their persons, houses, papers, and other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause.”
Privilege against Self-incrimination
The defendant is entitled to a right under the Fifth Amendment to the U.S. Constitution to remain silent during the trial. In other words, the accused person can refuse to answer any questions or make any statements, if such answers or statements establish that the person committed a crime or is in any way connected to some criminal activity. As already mentioned above, the burden of proof of a crime is on the prosecution. However, no one including the prosecutor, the judge, and even the defendant’s lawyer can force the defendant to be a witness against himself/ herself if the person declines to do so. Furthermore, when a defendant exercises his or her right not to testify, the jury is not permitted to take such denial into consideration when deciding the question of liability. Thus, this is a prominent privilege to the criminal defendant. Nevertheless, the defendant cannot selectively answer questions that go against him/her. Once a defendant decides to testify at trial, he/she cannot ordinarily choose to answer some questions but not others. It is to be noted that the Fifth Amendment privilege does not apply when a defendant is fingerprinted, or made to provide a DNA sample in connection with a criminal accusation. Like a criminal defendant, witnesses are also entitled to refuse to answer certain questions by asserting their Fifth Amendment rights. However, this right is not extensive as that of the criminal defendants.
Conclusion
A criminal defendant is presumed to be innocent and accorded all humane considerations during the trial. Justice is not a one sided notion favoring the victim, but it looks at the accused person from a reformative angle. The punishments accorded to the criminal defendant are meant to reform the person and not a retributive measure. As such, in the pursuit of justice, law takes in to consideration, the rights of the accused.
By: Layne Smith
Criminal Law : Your Constitutional Rights
Sovereignty and Human Rights
SOVEREIGNTY AND HUMAN RIGHTS
Rafael Augusto De Conti[1]
www.rafaeldeconti.pro.br
Even in a globalized world, is not difficult to check the necessity of the sovereignty’s concept. The application of the criminal law and the sovereign power of expulsion of individuals who enters illegally into the borders of a State show this necessity.
However, the applicability of the sovereign concept shall be seen in a perspective not absolute because the own source of the concept. And is possible to see this since the concept was structured by Bodin and Hobbes, what happened only after the long maturation of disputes between the secular power and temporal power in the Middle Ages.
The sovereign power is established, basically, to protect individuals, residing its source in this protection. Thus, your use needs to respect the human rights, and not matter if they are thought by the rational aspect or the historical aspect.
With regard to the rational aspect, we can say that the relation between the natural law (essential to ensure what we called human rights) and the civil law is of mutualism, i.e., one law depends of the other law to enforce its purpose.
For example, if by one side, the judge only applies a civil law effectively when does in a fair way between the litigation parts, being this way of application of the civil law a commandment dictated by our reason, by the other side, the necessity of any person has a impartial trial only can be, in fact, satisfied by a civil law established and guaranteed by a sovereign power.
Already in relation to the historical aspect, the situation of stateless people at the beginning of the twentieth century shows us that it is impossible to guarantee human rights (envisioned by the rationalist view or by the view of historical assertion view) without guaranteeing the right of citizenship.
Based on these dialectic concepts between human rights and sovereignty, it is reasonable to conclude that who take decisions based on the sovereign power is strictly prohibited to not taking into consideration the human rights, failing which, at worst, can not require compliance with its decision, not permitting, in this way, the own use of sovereignty. RDC. October, 2008.
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[1] Bachelor in Philosophy by the Philosophy Department of University of São Paulo (USP) and Bachelor in Law by the Law School of Mackenzie University (Mackenzie). Lawyer in São Paulo, acting, principally, in Brazilian Corporate and Finance Law. Researcher at USP (Master Degree) in Ethical and Political Philosophy, with emphasis in Sovereignty and Humans Rights Theories (October, 2008);
Bacharel em Filosofia pelo Departamento de Filosofia da Universidade de São Paulo (USP) e Bacharel em Direito pela Faculdade de Direito da Universidade Mackenzie (Mackenzie). Advogado em São Paulo, atuando, principalmente, em Direito Brasileiro Societário e Financeiro. Pesquisador da USP (Mestrado) em Ética e Filosofia Política, com ênfase em Teorias da Soberania e Direitos Humanos (outubro, 2008).
SOBERANIA E DIREITOS HUMANOS
Mesmo em um mundo globalizado, não é difícil verificar a necessidade do conceito de soberania. A aplicação da lei penal e o poder soberano de expulsão de indivíduos que adentram ilegalmente as fronteiras de um Estado evidenciam tal necessidade.
No entanto, a aplicabilidade do conceito de soberania deve ser vislumbrada de modo relativo em face da própria fonte do conceito. E isto é possível apreender desde que tal conceito foi estruturado por Bodin e Hobbes, o que só se deu após a longa maturação das disputas entre o poder secular e o poder temporal na Idade Média.
O poder soberano é instituído, basicamente, para proteger indivíduos, residindo nesta proteção a sua fonte. Deste modo, o seu uso deve se assentar no respeito aos direitos humanos, sejam estes pensados sob seu aspecto racional ou histórico.
No que diz respeito ao aspecto racional, podemos dizer que a relação entre lei natural (imprescindível para garantir o que denominados de direitos humanos) e lei civil é de mutualismo, ou seja, que uma lei depende da outra para fazer cumprir sua finalidade.
Por exemplo, se, por um lado, o juiz só aplica uma lei civil eficazmente quando o faz de modo equânime entre as partes litigantes, sendo tal modo de aplicação da lei civil um mandamento ditado por nossa razão, por outro lado, a necessidade de toda e qualquer pessoa ter um julgamento imparcial só pode ser de fato satisfeita por uma lei civil instituída e garantida por um poder soberano.
Já em relação ao aspecto histórico, a situação dos apátridas no início do século XX nos indica que é impossível garantir os direitos humanos (sendo estes vislumbrados pela óptica racionalista ou de sua afirmação histórica) sem se garantir o direito de cidadania.
Partindo-se destas noções dialéticas entre direitos humanos e soberania, é razoável concluir que aquele que toma decisões pautado no poder soberano está terminantemente proibido de não levar em consideração os direitos humanos, sob pena de, no limite, não poder exigir o cumprimento de sua decisão, inviabilizando, assim, o próprio uso da soberania. RDC. Outubro, 2008.
By: Rafael Augusto De Conti