Search Results

The Privilege Against Self-incrimination

Stefan Trechsel

in Human Rights in Criminal Proceedings

The privilege against self-incrimination is certainly one of the most complex guarantees in the entire body of fundamental rights applicable in the context of criminal proceedings. However, such ... More

The privilege against self-incrimination is certainly one of the most complex guarantees in the entire body of fundamental rights applicable in the context of criminal proceedings. However, such guarantee is absent in the European Convention on Human Rights (ECHR). The term ‘privilege’, or ‘privilege against self-incrimination’, refers to the situation of someone who enjoys enhanced protection. To simplify the linguistic expression, the term ‘privilege’ is applied unless the discussion focuses more precisely on a specific aspect of the guarantee. This chapter discusses the origins and character of the gurantee related to the privilege against self-incrimination, the right to silence and the privilege against self-incrimination, right to silence and freedom of expression, direct and indirect effects of the guarantee, the rationale and scope of the guarantee, the direct effect of the privilege, the right to remain silent, the right not to hand over documents, and exceptions.Less

Criminal Procedure

Michael S. Pardo and Dennis Patterson

in Minds, Brains, and Law: The Conceptual Foundations of Law and Neuroscience

This chapter examines the three primary constitutional provisions that limit the gathering and use of neuroscientific evidence by the government: the Fourth Amendment, the Fifth Amendment privilege ... More

This chapter examines the three primary constitutional provisions that limit the gathering and use of neuroscientific evidence by the government: the Fourth Amendment, the Fifth Amendment privilege against self-incrimination, and Due Process. It argues that the way in which the evidence is conceptualized matters a great deal to the amount of constitutional protection it is likely to receive. Uncertainty about how to characterize evidence produced by new technology is an enduring problem in law, and neuroscientific evidence is no exception.Less

From Altercation to Adversary Trial

John H. Langbein

in The Origins of Adversary Criminal Trial

The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in ... More

The judges attempted to admit defense counsel at trial for the limited purpose of assisting the defendant to probe accusing evidence, expecting that the defendant would otherwise continue to speak in his or her own defense. By articulating and pressing for the enforcement of the prosecutorial burdens of production and proof, defense counsel largely silenced the defendant, leading to the beyond-reasonable-doubt standard of proof, and the privilege against self-incrimination. The adversary dynamic changed the very theory of the criminal trial. Whereas the old altercation trial had been understood as an opportunity for the accused to speak in person to the charges and the evidence against him, adversary criminal trial became an opportunity for defense counsel to test the prosecution case.Less

Narcoanalysis 1

A.G. Noorani and South Asia Human Rights Documentation Centre

in Challenges to Civil Rights Guarantees in India

After almost a decade of upholding the use of narcoanalysis by criminal investigation agencies, the Indian judiciary has finally recognised and condemned its abusive nature. In Smt. Selvi & Ors v. ... More

After almost a decade of upholding the use of narcoanalysis by criminal investigation agencies, the Indian judiciary has finally recognised and condemned its abusive nature. In Smt. Selvi & Ors v. State of Karnataka, the Supreme Court called for a ban on all involuntary administration of narcoanalysis and the withholding in court of all evidence directly obtained from even voluntary administration of the tests. The scientific validity of narcoanalysis and the reliability of its results have long been controversial. This chapter shows that the use of narcoanalysis is not only ineffective in obtaining truthful information, but also violates fundamental civil rights protected by international law and the Indian Constitution. It also argues that the test violates the rights against self-incrimination and the right to life and personal liberty.Less

Criminal Process: The Right to Counsel, Unreasonable Searches and Seizures, and the Privilege against Self-Incrimination

Kent Greenawalt

in Interpreting the Constitution

This chapter covers three different aspects of the rights of criminal suspects, asking how far the government may intrude on people’s lives in order to prevent and solve crimes. Among the central ... More

This chapter covers three different aspects of the rights of criminal suspects, asking how far the government may intrude on people’s lives in order to prevent and solve crimes. Among the central themes is the idea that some of the constitutional standards involve an assessment of competing considerations, and to some extent this is true even for the privilege against self-incrimination. Certain rights are now properly perceived more expansively than at the time of adoption, and modern social circumstances, such as the threat of terrorism, may properly have some effect on the scope of rights. Among the interesting variations with respect to searches and seizures are how far the severity of a crime matters for needed probability, what is the appropriate basis for “stop and frisk,” how far racial categorization is a problem here, and whether automobiles and airplanes should be treated differently from other circumstances.Less

Interrogation Standards of the Fifth and Fourteenth Amendments Applied to Both Citizens and Noncitizens

Amos N. Guiora

in Constitutional Limits on Coercive Interrogation

Why should constitutional protections be extended to any noncitizen in the first place? Some argue that any alien (legal or illegal) residing in the United States is entitled to full constitutional ... More

Why should constitutional protections be extended to any noncitizen in the first place? Some argue that any alien (legal or illegal) residing in the United States is entitled to full constitutional guarantees and protections. The Supreme court addressed this in the Dred Scott case, holding that the Fifth Amendment was not limited to the geographic boundaries of the states, but rather such protections were extended to all incorporated territories of the United States. In the 150 years since Dred Scott, the Court has discussed two distinct lines of demarcation relevant for determining detainee rights. These two jurisprudential lines are: distinguishing between individuals and inside and outside of the United States, and distinguishing between citizens and noncitizens.Less

Investigatory Powers

Peter Alldridge

in Criminal Justice and Taxation

The chapter considers to what extent tax investigations are like, and how they are unlike, police investigations. It examines the powers available to HMRC in the investigation of evasion offences. ... More

The chapter considers to what extent tax investigations are like, and how they are unlike, police investigations. It examines the powers available to HMRC in the investigation of evasion offences. The bifurcated regime operated clearly in the enforcement activities of Customs and Excise and the Inland Revenue from the earliest times. At the time (early 1980s) of the Keith Committee, before the Police and Criminal Evidence Act 1984 (PACE) and before the significance of the civil/criminal distinction (in terms of the European Convention on Human Rights) was recognized in English law, police powers were ill-defined and did not allow for a clear comparison to be made between the sorts of rules that might circumscribe the investigations if the objectives were solely (a) to investigate crime or (b) to establish the tax position of the taxpayer. Over time, the investigatory powers have become increasingly closely assimilated to the PACE powers.Less

Law’s Struggle with Violence: Ambivalence in the “Routine” Jurisprudence of Interrogations in the United States

Jinee Lokaneeta

in Transnational Torture: Law, Violence, and State Power in the United States and India

This chapter examines the U.S. legal discourse on torture by tracing the history of constitutional mechanisms that serve as protections from torture: the due process clause (Fourteenth and Fifth ... More

This chapter examines the U.S. legal discourse on torture by tracing the history of constitutional mechanisms that serve as protections from torture: the due process clause (Fourteenth and Fifth Amendments), the prohibition against cruel and unusual punishment (Eighth Amendment), and the guarantee of the right against self-incrimination (Fifth Amendment). In particular, it analyzes the jurisprudence concerning the Fifth and the Fourteenth Amendments of the U.S. Constitution and highlights the ambiguities regarding excess violence expressed in routine discourses, especially in situations of necessity. The chapter first presents a chronology of “progress” against torture by focusing on Supreme Court cases that have addressed the issue of torture and excess violence in interrogations, including Miranda v. Arizona. It then considers the Wickersham Commission Report, which looked into the prevalence of the third degree in the 1930s, along with the politics of denial by President George W. Bush and other U.S. officials that torture was ever authorized for the “war on terror.” It also comments on the Supreme Court's acknowledgment of the continued struggle of law with excess violence.Less

1 Law’s Struggle with Violence: Ambivalence in the “Routine” Jurisprudence of Interrogations in the United States

Jinee Lokaneeta

in Transnational Torture: Law, Violence, and State Power in the United States and India

This chapter examines the U.S. legal discourse on torture by tracing the history of constitutional mechanisms that serve as protections from torture: the due process clause (Fourteenth and Fifth ... More

This chapter examines the U.S. legal discourse on torture by tracing the history of constitutional mechanisms that serve as protections from torture: the due process clause (Fourteenth and Fifth Amendments), the prohibition against cruel and unusual punishment (Eighth Amendment), and the guarantee of the right against self-incrimination (Fifth Amendment). In particular, it analyzes the jurisprudence concerning the Fifth and the Fourteenth Amendments of the U.S. Constitution and highlights the ambiguities regarding excess violence expressed in routine discourses, especially in situations of necessity. The chapter first presents a chronology of “progress” against torture by focusing on Supreme Court cases that have addressed the issue of torture and excess violence in interrogations, including Miranda v. Arizona. It then considers the Wickersham Commission Report, which looked into the prevalence of the third degree in the 1930s, along with the politics of denial by President George W. Bush and other U.S. officials that torture was ever authorized for the “war on terror.” It also comments on the Supreme Court's acknowledgment of the continued struggle of law with excess violence. Less

The Bill of Rights: 1947–1958

Constance Jordan (ed.)

in Reason and Imagination: The Selected Correspondence of Learned Hand

In the period 1947–1958, the following topics in law and politics concern Hand and his correspondents: libel, searches, the standard by which to assess good moral character, the privilege against ... More

In the period 1947–1958, the following topics in law and politics concern Hand and his correspondents: libel, searches, the standard by which to assess good moral character, the privilege against self-incrimination, the distinction between property rights and personal rights, and Hand's decision in convicting Eugene Dennis and others charged under the Smith Act. From 1952, Hand focuses on three topics: judicial review, natural law, and the Supreme Court's rulings in the cases involving segregation. To Charles Wyzanski, Hand argues that judicial review risks substituting judicial preferences for the interpretation of statute and precedent. To Walter Lippmann, Hand rejects the idea that natural law has any place in jurisprudence. In correspondence with Frankfurter, Hand supports the Court's decision in Brown by invoking the Equal Protection Clause.Less

Silence is Golden—or is it? *

Tom Bingham

in The Business of Judging: Selected Essays and Speeches

When a person is suspected of committing a crime he is likely to be questioned by the police, when he may choose either to answer the police ... More

When a person is suspected of committing a crime he is likely to be questioned by the police, when he may choose either to answer the police questions or to remain silent. If prosecuted, he has a right at trial to give sworn evidence on his own behalf, but he may again choose not to do so. In neither instance, whether at the police station or in court, can he be forced to speak. However, a question arises: can his failure to answer the police questions or testify at trial be held against him as evidence of his guilt, and if so in what circumstances? This is a very controversial and sensitive question. The Royal Commission took one view; the government of the day took another. Professional opinion was, and remains, divided. This chapter examines the right to silence and how it differs from the right not to incriminate oneself, the well-known privilege against self-incrimination.Less

Information Work

Martin Innes

in Investigating Murder: Detective Work and the Police Response to Criminal Homicide

Crime investigation is fundamentally a form of information work. It is concerned with the identification, interpretation, and ordering of information with the objective of ascertaining whether a ... More

Crime investigation is fundamentally a form of information work. It is concerned with the identification, interpretation, and ordering of information with the objective of ascertaining whether a crime has occurred, and if so, who was involved, and how. This chapter focuses on the functions of information in relation to the investigative process. It discusses five kinds of principle sources of information for a homicide enquiry: physical trace materials, co-present eyewitnesses, non-co-present witnesses, self-incrimination, and police intelligence.Less

Article 48 CFR

Tobias Lock

in The EU Treaties and the Charter of Fundamental Rights: A Commentary

Article 48 CFR contains important (criminal) procedural guarantees. It reflects the rights contained in Article 6(2) and (3) ECHR. By virtue of Article 52 (3) CFR its meaning and scope are thus the ... More

Article 48 CFR contains important (criminal) procedural guarantees. It reflects the rights contained in Article 6(2) and (3) ECHR. By virtue of Article 52 (3) CFR its meaning and scope are thus the same. This means that the more detailed rights laid down in Article 6(3) ECHR must be read into the rights to defence guaranteed by Article 48(2) CFR. Less

Investigation

Hamish Anderson

in The Framework of Corporate Insolvency Law

An office-holder cannot discharge his functions without a full understanding of the affairs, business, and property of the company. However, a significant prior professional relationship is ... More

An office-holder cannot discharge his functions without a full understanding of the affairs, business, and property of the company. However, a significant prior professional relationship is regarded as posing a clear threat to the objectivity of an insolvency practitioner such as to make it inappropriate to accept appointment as an office-holder in insolvency proceedings relating to the company. The requirement for an office-holder to be independent of the company therefore means that he may have little or even none of the requisite knowledge prior to his appointment. Less

Evidence Gathering

James Ayliffe

in Transaction Avoidance in Insolvencies

The Insolvency Act 1986 recognizes that an office holder, as a stranger to the affairs of the debtor, may encounter problems in trying to unravel the debtor’s past dealings, something which can be ... More

The Insolvency Act 1986 recognizes that an office holder, as a stranger to the affairs of the debtor, may encounter problems in trying to unravel the debtor’s past dealings, something which can be exploited by those who have entered into voidable transactions. In personal insolvency the debtor, his spouse, and his associates may well wish to conceal information about the debtor’s dealings in order to protect the transactions that the office holder is seeking to attack. Similarly, in corporate insolvency, the officers of the company and others who are involved in the company’s affairs may wish to suppress information. This situation is not helped by the fact that some of the avoidance provisions, in particular those dealing with preferences and transactions defrauding creditors, contain elements which may be difficult for the office holder to prove. Less

The Presumption of Innocence in the Trial Setting

Richard L. Lippke

in Taming the Presumption of Innocence

The chapter examines the presumption of innocence in its most natural setting, that of the criminal trial. The chapter distinguishes the perspective on the accused with which jurors (or judges, in ... More

The chapter examines the presumption of innocence in its most natural setting, that of the criminal trial. The chapter distinguishes the perspective on the accused with which jurors (or judges, in bench trials) begin trials and how jurors approach the evidence proffered by the prosecution or defense. Both are important though rarely distinguished. Different perspectives on the accused are then examined with a view to determining which one will provide the most rigorous test of the government’s case against accused persons. The chapter maintains that the strongest test of the government’s accusations is provided by a presumption of the material innocence of the accused on the part of jurors at the outset of trials. How to understand that presumption and various objections to it are explored.Less

Order to produce evidence

Winfried Tilmann

in Unified Patent Protection in Europe: A Commentary

At the request of a party which has presented reasonably available evidence sufficient to support its claims and has, in substantiating those claims, specified evidence which lies in the control of ... More

At the request of a party which has presented reasonably available evidence sufficient to support its claims and has, in substantiating those claims, specified evidence which lies in the control of the opposing party or a third party, the Court may order the opposing party or a third party to present such evidence, subject to the protection of confidential information. Such order shall not result in an obligation of self-incrimination. Less

Just the Facts

in Theater of the Mind: Imagination, Aesthetics, and American Radio Drama

Radio plays with crime as their theme relied on two conventions that reflected a persistent cultural fascination with coercion—direct address and acts of testimony—both of which conventions helped ... More

Radio plays with crime as their theme relied on two conventions that reflected a persistent cultural fascination with coercion—direct address and acts of testimony—both of which conventions helped many Americans process the modalities of authority, the pursuit of evidence, and the dynamics of self-incrimination at a time when these ideas were relevant. Radio drama was not only asking how mass communication transmits belief in the mind; it was also lionizing those who disclose it enthusiastically to officials. By analyzing the prevailing patterns of communication in the 1950s crime story, this chapter argues that radio shows about communication essentially became “loyalty programs.” Just as radio reinvented spatial and temporal forms to deal with Cold War anxiety, notions about communication also changed, especially in crime programs from the end of World War II into the 1950s.Less

Police Interrogation and Coercion in Domestic American History: Lessons for the War on Terror

Richard A. Leo and K. Alexa Koenig

in Confronting Torture: Essays on the Ethics, Legality, History, and Psychology of Torture Today

Many US police departments used physical and psychological coercion in their interrogation methods from the late nineteenth century to the present, though there has been a marked transition from the ... More

Many US police departments used physical and psychological coercion in their interrogation methods from the late nineteenth century to the present, though there has been a marked transition from the more physical to more psychological and deceptive methods. The use of the “third degree” as a method of securing confessions was fairly standard practice in many different police departments, seeing its heyday in the 1920s and 1930s. This chapter elucidates a number of factors that combined around that time to rein in the use of physical coercion by police departments, including several high-profile scandals in which innocents were convicted on the basis of false confessions, the report of the Wickersham Commission excoriating the use of the technique as ineffective, and developments in constitutional law strengthening the rights of the accused to due process and against self-incrimination. The chapter concludes by drawing some lessons from the American domestic experiment with the third degree in the early part of the 20th century for the use of torture in contemporary military interrogation practices in the War on Terror in the 21st century.Less

The Suspected Adulteress

Calum Carmichael

in Sex and Religion in the Bible

This chapter discusses the importance of biblical law on the suspected adulteress. It explains the reasons why the law relating to sexual adulteress has received so much attention. First, the topic ... More

This chapter discusses the importance of biblical law on the suspected adulteress. It explains the reasons why the law relating to sexual adulteress has received so much attention. First, the topic of sexual wrongdoing is always likely to attract interest. Second, with no witness to testify, trials will always involve self-incrimination, which is detrimental from a legal perspective. Third, there has been little or no light shed on what prompts a lawgiver to present the law in the first place. Fourth, from the point of view of comparative law, we find a rule in Hammurabi Code wherein a wife is accused by a husband but there is a lack of evidence, so therefore she has to swear an oath to clear herself.Less