1.2.6
Lesson 6 Defendants' Rights in the Criminal Justic...
Lesson 6 Defendants' Rights in the Criminal Justice System 第六课 被告人的主要权利
Ⅰ. Text & Its Translation
There are two fundamental aspects of the U.S. criminal justice system(1)—the presumption that the defendant is innocent and the burden on the prosecution(2) to prove guilt beyond a reasonable doubt. Furthermore, criminal defendants have other rights too.
1. The Defendant's Right to Remain Silent
The Fifth Amendment to the U.S. Constitution provides that a defendant cannot be compelled in any criminal case to be a witness against himself. In short, the defendant has the right to “sit mute”. The prosecutor cannot call the defendant as a witness, nor can a judge or defense attorney force the defendant to testify if the defendant chooses to remain silent. By contrast, a defendant may be called as a witness in a civil case.
A defendant in a criminal trial may choose whether or not to give evidence in the proceedings. Further, there is no general duty to assist the police with their inquiries. Although certain financial investigatory bodies have the power to require a person to answer questions and impose a penalty if a person refuses, if a person gives evidence in such proceedings, the prosecution cannot adduce such evidence in a criminal trial.
The Supreme Court ruled that the government cannot punish a criminal defendant for exercising his right to silence, by allowing the prosecutor to ask the jury to draw an inference of guilt from the defendant's refusal to testify in his own defense.(3) The Court overturned as unconstitutional under the federal constitution a provision of the California state constitution that explicitly granted such power to prosecutors.
2. The Defendant's Right to Confront(4) Witness
The “confrontation clause”(5) of the Sixth Amendment gives defendants the right to “be confronted by the witnesses against” them. Implicit in this right is the right to cross—examine witnesses—that is, the right to require the witnesses to come to court, “look the defendant in the eye”, and subject themselves to questioning by the defense. The Sixth Amendment prevents secret trials, and except for limited exceptions, forbids prosecutors from proving a defendant's guilt with written statements from absent witnesses.
Like most of the protections given criminal defendants in the Constitution, the right of confronting witness has its origins in English common law. Until the sixteenth century, the right of confronting witness was nearly absent from the Anglo-American legal tradition. Then, with the introduction of the right to trial by an impartial jury and the firm establishment of the presumption of innocence, the right of confrontation came to be seen as an integral part of the proper defense rights of the accused.
Through crossexamination, defendants are allowed to test the reliability and credibility of witnesses. However, the right of crossexamination also has limits. For example, defendants may be denied the right to ask questions that are irrelevant, collateral, confusing, repetitive, or prejudicial.
3. The Defendant's Right to a Public Trial(6)
The Sixth Amendment guarantees public trials in criminal cases. This is an important right, because the presence in courtrooms of a defendant's family and friends, ordinary citizens and the press can help ensure that the government observes other important rights associated with trials.
In a few situations, normally involving children, the court will close the court to the public. For example, judges can bar the public from attending cases when defendants are charged with sexual assaults(7) against children. In recent years, legislators have been concerned about defendants who escape punishment for sexually molesting(8) young children because the children are afraid to testify in the defendant's presence. To address this problem, many states have enacted special rules that authorize judges—in certain situations—to allow children to testify via closed circuit television. The defendant can see the child on a television monitor, but the child cannot see the defendant. The defense attorney can be personally present where the child is testifying and can cross-examine the child.
4. The Defendant's Right to be Represented by an Attorney
The Sixth Amendment to the U.S. Constitution provides that “in all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense.” A judge must appoint an attorney for indigent defendants(defendants who cannot afford to hire attorneys) at government expense only if the defendants might be actually imprisoned for a period of more than six months for the crime. As a practical matter, judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is a possibility.
In a series of cases, the U.S. Supreme Court ruled that American indigents do have a right to counsel, but only in criminal cases. The federal government and some states have offices of public defenders which assist indigent defendants, while other states have systems for outsourcing the work to private lawyers. A judge normally appoints the attorney for an indigent defendant at the defendant's first court appearance. For most defendants, the first court appearance is either an arraignment(9) or a bail(10) hearing.
The job of defense counsel at trial is to prepare and offer a vigorous defense on behalf of the accused.A proper defense often involves the presentation of evidence and the examination of witness, all of which requires careful thought and planning. Good attorneys, like quality craftspeople everywhere, may find themselves emotionally committed to the outcome of trials in which they are involved.
The personification of justice balancing the scales of truth and fairness dates back to the Goddess Maat(11), and later Isis(12), of ancient Egypt. The Hellenic(13) deities Themis(14) and Dike were later goddesses of justice. Themis was the embodiment of divine order, law, and custom, in her aspect as the personification of the divine rightness of law.
However, a more direct connection is to Themis' daughter Dike, who was portrayed carrying scales: “If some god had been holding level the balance of Dike” is an image in a surviving fragment of the poetry.
Dike is described as almost indistinguishable from Astraea(Astraia) who is depicted with a torch, wings, and Zeus' thunderbolts.
Ancient Rome adopted the image of a female goddess of justice, which it called Justitia. Since Roman times, Justitia has frequently been depicted carrying scales and a sword, and wearing a blindfold. Her modern iconography frequently adorns courthouses and courtrooms, and conflates the attributes of several goddesses who embodied Right Rule for Greeks and Romans, blending Roman blindfolded Fortuna(15)(fate) with Hellenistic Greek Tyche(16)(luck), and swordcarrying Nemesis(17)(vengeance).
Justitia is most often depicted with a set of scales typically suspended from her left hand, upon which she measures the strengths of a case's support and opposition. She is also often seen carrying a double-edged sword in her right hand, symbolizing the power of Reason and Justice, which may be wielded either for or against any party.
Since the 15th century, Lady Justice has often been depicted wearing a blindfold. The blindfold represents objectivity, in that justice is or should be meted out objectively, without fear or favor, regardless of identity, money, power, or weakness; blind justice and impartiality. The earliest Roman coins depicted Justitia with the sword in one hand and the scale in the other, but with her eyes uncovered. Justitia was only commonly represented as “blind” since about the end of the 15th century.
Instead of using the Janus approach, many sculptures simply leave out the blindfold altogether. For example, atop the Old Bailey courthouse in London, a statue of Lady Justice stands without a blindfold; the courthouse brochures explain that this is because Lady Justice was originally not blindfolded, and because her “maidenly form” is supposed to guarantee her impartiality which renders the blindfold redundant. Another variation is to depict a blindfolded Lady Justice as a human scale, weighing competing claims in each hand.
Ⅳ. EXERCISES Ⅳ．练习
1. Answer the following questions.
（1）What are the typical defendant's rights in modern criminal procedure?
（2）How do you understand “the defendant's right to remain silent”?
（3）According to the text, what are the two fundamental aspects of U.S. Criminal Justice System?
（4）In which amendments does Bill of Rights provide the procedural rights of defendants?
2. Translate the following terms into English.
（1）合理怀疑
（2）双重追诉
（3）快速审判
（4）公诉方
（5）金融调查机构
3. Translate the following terms into Chinese.
（1）criminal procedure
（2）criminal justice system
（3）confrontation clause
（4）sexual assault
（5）cross-examination
（6）public trial
（7）indigent defendants
4. Match the given terms with the proper explanation.
A. bail
B. confrontation clause
C. criminal justice system
D. double jeopardy
E. jury trial
（1）The collective institutions through which an accused offender passes until the accusations have been disposed of or the assessed punishment concluded.
（2）The Sixth Amendment provision guaranteeing a criminal defendant's right to directly confront an accusing witness and to crossexamine that witness.
（3）A trial in which the factual issues are determined by a jury, not by the judge.
（4）The fact of being prosecuted twice for substantially the same offense. Double Jeopardy is prohibited by the Fifth Amendment.
（5）Traditionally, it is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail(and possibly be brought up on charges of the crime of failure to appear).
5. Choose the suitable words from the box and fill in the blanks.
The Fifth Amendment protects witnesses from being forced to incriminate themselves. To “plead the Fifth” is to (1) to answer a question because the response could provide (2) evidence of an illegal conduct punished by fines, penalties or forfeiture. Historically, the legal protection against (3) was directly related to the question of torture for extracting information and confessions. In the late 16th and early 17th century in England, anyone refusing to take the oath ex officio mero(confessions or swearing of innocence, usually before hearing any charges) was considered (4). Coercion and (5) were commonly used to compel “cooperation”. Puritans, who were at the time fleeing to the New World, began a practice of refusing to cooperate with (6). These protections were brought to America by Puritans, and were later incorporated into the United States Constitution through the Bill of Rights.
6. True or False. Please mark T for true sentences or F for false sentences.
（1）_____The Sixth Amendment to the U.S. Constitution provides that a defendant cannot be compelled in any criminal case to be a witness against himself.
（2）_____The prosecutor can call the defendant as a witness, and a judge or defense attorney can force the defendant to testify if the defendant chooses to remain silent.
（3）_____The “confrontation clause” of the Seventh Amendment of United States Constitution gives defendants the right to “be confronted by the witnesses against” them.
（4）_____As a practical matter, judges routinely appoint attorneys for indigents in nearly all cases in which a jail sentence is a possibility.
7. Translate the following sentences into Chinese.
（1）The procedure for how charges are filed varies from jurisdiction to jurisdiction. Some jurisdictions give the police greater discretion in charging defendants with specific crimes, while others place more power with the prosecutor's office.
（2）A defense consists of evidence and arguments offered by a defendant and his or her attorneys to show why that person should not be held liable for a criminal charge.
（3）Under the law, defense of third persons always requires that the defender be free from fault and that he or she act to aid an innocent person who is in the process of being victimized.
（4）Procedural defenses make the claim that defendants were in some manner discriminated against in the justice process or that some important aspect of official procedure was not properly followed and that, as a result, they should be released from any criminal liability.
(2) prosecution：控诉方，检察机关。The prosecution is the legal party responsible for presenting the case in a criminal trial against an individual accused of breaking the law.
(3) Griffin v.California 380 U.S. 609(1965).
(4) confront：使对质；使对证。confrontation：对质；对证。A fundamental right of a defendant in a criminal action to come face to face with an adverse witness in the court's presence so the defendant has a fair chance to object to the testimony of the witness and the opportunity to crossexamine the witness. 在刑事诉讼中，指被告人有权与对方证人对质。《美国宪法》第六条修正案规定的这一被告人权利使被告人能面对证人，能对其证词提出反对意见，或使证人能辨别被告人。对质权的实质不在于使被告人能见到证人，而是保障被告人具有质询对方证人的宪法权利。
(5) confrontation clause：对质条款。指美国宪法第六条修正案，该条保障刑事被告人有权直接与控方证人对质，并向该证人进行交叉询问(crossexamination)。“In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.”
(6) public trial：公开审判。Public trial or open trial is a trial open to public, as opposed to the secret trial.
(7) sexual assault：性侵犯，指性交以外的各种非法性行为。例如，以身体伤害相威胁，或以造成恐惧、羞辱或精神痛苦相胁迫，而猥亵妇女、儿童或其他男子的行为。
(8) molest：骚扰，猥亵。To subject to unwanted or improper sexual activity.
(9) arraignment：传讯。Arraignment is a formal reading of a criminal complaint in the presence of the defendant to inform the defendant of the charges against him or her.
(10) bail：保释。Bail is some form of property deposited or pledged to a court to persuade it to release a suspect from jail, on the understanding that the suspect will return for trial or forfeit the bail(and possibly be brought up on charges of the crime of failure to appear).