- This topic has 0 replies, 1 voice, and was last updated 1 year, 9 months ago by
.
-
Posts
-
The proposed right:
No person shall be imprisoned, punished, or exiled without a fair trial. No person shall be deprived of their life, liberty, or property without a lawful process. No person shall be arrested, tried, or convicted without being informed of the charges or accusations against them. No accused person shall be denied a speedy trial. No accused person shall be denied a public trial. No accused person shall be denied an opportunity to assemble an impartial jury. No accused person shall be denied the opportunity to confront witnesses at the trial. No accused person shall be denied the assistance of competent counsel for their defense. No accused person shall be compelled to testify against themselves. No accused person shall be required to post bail while awaiting trial. No person shall be tried for the same offense more than once. No person shall be charged with a felony offense without first being indicted by a grand jury.
Intent:
To define the meaning of a fair trial so that people know when a defendant’s right to a fair trial has been violated and can advocate for that defendant.
Discussion:
Not being refused a speedy and public trial means that a defendant can have a speedy and public trial if they request these, but the trials are not required to be that way if the defendant doesn’t request it.
The opportunity to confront a witness means that witnesses named by the accused may be compelled to appear in court and testify. This is a balance of limiting their liberty if they don’t want to appear in court, with protecting the right of someone to a fair trial, if the witness has important information that can exonerate the defendant then in order to protect the right of the defendant to a fair trial, witnesses have an obligation to share the information they have or what they saw or heard.
An appeal is not considered a separate trial, but a continuation of the original trial.
Military members have the same rights in military trials, although the way those trials are conducted might be different, and the jury might be different size than a civil trial.
The part that says “must not demand bail” means there is no bail system. A judge either believes the accused to be a danger to the public or a flight risk and orders an accused person to stay under arrest pending trial, or the judge doesn’t believe this and releases a person pending their trial, but must not demand bail for a person to be free. This eliminates a two-tier justice system where people under the similar conditions have different freedoms based on whether they have money to post bail or not. A judge may allow a person to be released but confiscate their passport or driver’s license to limit their travel, or order them to have a wrist or ankle cuff that reports their location to the government or identifies them to any public transportation officer or law enforcement officer as pending trial so they will not be allowed to leave the state, or if found in another state immediately arrested.
The right to fair trial prohibits discrimination against a defendant based on characteristics they cannot control such as their sex, the color of their skin, or their place of birth.
Comparison to the United States:
In the United States, this right corresponds to the Fifth and Sixth Amendments to the Constitution.
In the United States Constitution, the Fifth Amendment states “No person all be… compelled in any criminal case to be a witness against himself”. This is important because if the government is allowed to compel a person to testify against themselves, it creates the possibility of forced confessions and the state can become lazy and coerce people to testify against themselves even for a crime they didn’t commit instead of obtaining evidence and convincing a jury.
Comparison to the United Nations:
Article 7 of the United Nations Universal Declaration of Human Rights states “All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.” The first sentence of that relates to the right to fair trial, but as a whole this article relates more to the right to justice and right to equal opportunity.
Article 9 of the United Nations Universal Declaration of Human Rights states “No one shall be subjected to arbitrary arrest, detention or exile.” This relates to the right to fair trial because an arbitrary arrest, detention, or exile implies a punishment that is done without a fair legal process to ascertain its necessity.
Article 10 of the United Nations Universal Declaration of Human Rights states “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.” This relates to the right to fair trial.
Article 11 of the United Nations Universal Declaration of Human Rights states “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.” This relates to the right to fair trial, because if a person is presumed guilty during a trial this may unfairly influence the outcome.
Article 11 of the United Nations Universal Declaration of Human Rights states “No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.” This relates to the right to justice because if a person does something that was legal at the time they did it, they should not have to fear that it will later become illegal and they will be retroactively liable. Similarly, the laws setting punishment for crimes are a kind of contract among the people, so whatever the punishment was at the time the crime occurred is the maximum that can be inflicted when the person who did it is found guilty at a later time. To change “the deal” retroactively would be an injustice and if that were allowed, nobody would ever be safe knowing that their actions are legal or knowing the worst possible consequence of their illegal actions since the law can always change in the future.
Article 15 of the United Nations Universal Declaration of Human Rights states “No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality.” The right to fair trial protects people from such arbitrary punishment. If the crime is so grave that justice demands either exile or death, and the law allows these punishments, a person must be convicted in a fair trial for the court to order these punishments.
This does mean that criminal geniuses who find ways to hurt people that are not covered by the extensive set of rights we adopt or by existing laws might get away with it somewhat the first time it happens. The legislature should be quick to enact laws setting penalties for crimes that were not previously anticipated. The legislature should also look forward and anticipate potential crimes that will be possible with new technology. For example when carriages and cars were invented, a legislature could anticipate someone running into another driver, a pedestrian, or a building or other improvement and could set punishments in advance of that happening even the first time.
No requirement to convict
Mike Fox, a legal fellow at the Cato Institute, wrote the following interesting argument:
… codify the institution of jury independence in statute by requiring federal judges to inform jurors of their historical powers and duties, including the prerogative to not only acquit against the evidence but also to ask questions and draw inferences based on how their questions are answered or ignored. Additionally, the act would ensure that judges apprise jurors that they are not obliged to accept the judge’s interpretation of the law. Had this law been in effect at the time, St. Louis could have asked, reasoned and acted — potentially saving Turner’s life.
At the founding, criminal jurors weren’t relegated to the role of mere fact-finders, as they are today. Historically, the institution of jury independence, which includes but is not limited to the power to acquit against the evidence, played a vital role in assessing the wisdom, fairness and legitimacy of a given prosecution. Founding-era jurors were tasked not just with finding facts but also with preventing injustice. Jurors could acquit factually guilty defendants if they perceived a law as immoral as applied to a specific case or if they considered the sentence disproportionate to the wrongfulness of the crime. Independent jurors can blunt the force of immoral laws and arbitrary prosecutions by refusing to subject their neighbors to unjust laws or overtly cruel punishment.
An interesting question is whether this idea should also be reflected in the right to fair trial, because a right to fair trial is not only about the trial itself, but also about the plaintiff’s motivations and the consequences to the defendant if found guilty.
OPEN QUESTION:
In a civil lawsuit, in some cases the accused should have a right to a trial as described above. Open question — in what cases? In the United States Constitution, the Seventh Amendment states that in suits for value over $20 the accused has a right to trial by jury. Such specific numbers should not be present in the Constitution or in law because the value of money changes over time. Instead, we might use a percentage. For example, in a civil lawsuit where the plaintiff seeks damages in excess of 1% of the defendant’s annual earnings from all sources, the defendant has a right to a trial by jury. Another possibility is that defendants always have a right to trial by jury regardless of the amount of damages being sought. Yet another possibility is that there are no civil lawsuits — a person either caused harm to another person and will undergo a criminal trial, or the dispute will be resolved by arbitration.
- You must be logged in to reply to this topic.