Legal Rights Before and After Arrest - Research Paper Example

? Legal Rights Before and After Arrest Legal Rights Before and After Arrest Introduction According to the most commonly heard definition, a crime is that activity that calls for prosecution under the law books of the land. However, a deeper analysis proves that this definition is too superficial, and in fact, it is not an easy task to define the boundaries of law. The first problem, according to Rosiers and Bittle (2004) is that law does have a strong social basis. In other words, the law of a land is shaped by the ideals of the society in which it operates. As a result, new and new crimes appear in the statute books from time to time, and again, the law of a land gets significantly different from the law of another geographical area, and thirdly, though an action does not violate law in a particular country, if it violates the international law, the person again is liable to be punished. What Constitutes Crime? Principle IV of the Principles of International Law recognized in the Charter of the Nurnberg Tribunal and in the Judgment of the Tribunal, 1950, states as follows: “the fact that a person acted pursuant to order of his government or of a superior does not relieve him from responsibility under international law, provided a moral choice was in fact possible to him” (Principles of International Law, 1950). In addition, Principle II of the same proclaims that even if the internal law does not punish a person, the person is still liable to be punished under international law. Here, it is surprising to note that the International Law gives way to morality, and it does not mention what is meant by morality. In a world where both monogamy and polygamy exist together; where capitalism and communism exist together, and where both non-violence and cannibalism are practiced, it is surprising to note that the legal fraternity still thinks about morality. From, this point, it is possible to think that crime in a society is defined based on the power relations that exist in the society at that point of time, and hence, an act that is considered as a crime at one time may not be considered as crime at a different time. In simple words, crime is contextual. It is because of this nature of crime that Henry and Lanier (2001) opined that what is considered as crime ‘at one place and time, culture or location’ may not necessarily be considered as a crime ‘at another time, in another culture, or even across the street’ (Henry & Lanier, 2001, p. 7). Durkheim, one of the founding figures of sociology, rightly interprets the concept of crime, and according to him, law cannot be considered as something that exists in abstraction or a plain-fact situation. It starts from developing the concept of crime, identifying some event as a crime, responding to that crime, and the action taken by the state agencies to punish the criminal. According to Durkheim (1982, p. 71), these all depend on the cultural world that exists at that time. Considering this fact, Wayne Morrison points out that considering some action as a crime depends on the role of that action in the context it was committed. In order to clarify the claim, she describes the incident of the yacht Mignonette. As the yacht collapsed in mid sea, in the year 1884, the crew had to escape in a small open boat with no food and water. After nearly three weeks of wandering in the sea without food, one of the crews killed a cabin boy who was reportedly delirious and all the crew drank his blood and fed on is body. After a few days, all were taken ashore by a passing boat. The judge who heard the case made a wonderful statement that it was the duty of the captain of a ship to take care of his passengers, and the sentence given to the men was six month’s imprisonment. In fact, it was common for seafarers in similar conditions to cast lots and the one with the shortest lot to be killed and eaten, and hence the men were not guilty according to the existing law. Here, one thing becomes evident; there is a considerable amount of risk involved if one decides to abide by the common definition that a crime is an act that is capable of being followed by criminal proceedings and ends in punishment. For example, Tappan (1947) defines crime as a kind of intentional act or omission that violates the existing law of the land, without defense or justification, and is considered by the law of the land as felony or misdemeanor. However, America saw how this definition goes wrong when it was shaken by the sexual acts committed by Bill Clinton and Monica Lewinsky in the White House. The problem faced in the impeachment hearings was that it was impossible to decide whether his actions constituted a crime or misdemeanor. As what he did was an ‘oral sex act’ and as the statute books do not mention oral sex as a form of ‘sexual relations’, Clinton was acquitted. Here, by utilizing the term ‘sexual intercourse’ in its textbook definition, he was able to evade the law. Thus, one reaches the conclusion that crime cannot simply be considered as a violation of the written words in the statute book. In the opinion of Hillyard (2004), understanding this deficiency, there are people who think that it is high time to give up the notion that crime is just a violation of the written statutes, but it should be considered as any act that constitutes social harm, or violates human rights. The problems caused by the narrowed view of crime are discussed in detail by Wayne Morrison. She narrates the North Carolina Chicken Processing Plant fire of 1991 in which 25 workers, mainly black single mothers, were burned to death. Evidently, the incident revealed the pathetic working environment that existed in the US for which a number of government officials too were responsible. However, there was no trial as the owner pleaded guilty of manslaughter, and the fact that various governmental agencies had not visited the plant in the past 11 years was ignored. Evidently, admitting crime as ‘an act that causes public harm’ will result in better analysis of the issue. In total, it becomes evident that there are various positions on the nature of the crime. According to the concept of social construction, crimes do not remain stable over geographical areas and time; only acts exist. The way an action is considered as a crime is dependent on the time and culture in which it is committed. According to the religious version, crime is against the will of God. In this case too, the concept of crime varies from religion to religion. According to the concept of state-legality, crime is an act or an omission that is against the rules of the state. However, the modern society is well aware of these contradictions and of the need to construct a framework for defining crime that is not tied by religion, culture or geography. In the US, crime can be considered as the violation of US federal legislation though there are various other statutes and directives too. The extensive list of federal crimes is enlisted in Title 18 of the United States Code. Constitutional Rights Before and After Arrest In fact, the Fourth, Fifth, and Sixth Amendments to the US Constitutions detail the rights of the criminally accused people before and after arrest. It is pointed out that for a police officer, to make an arrest, there should be a sufficient amount of information that arouses suspicion. However, the arresting body cannot keep the suspect for more than 72 hours. In addition, the person has the right to have the arrest registered within three hours and to have a copy of the record on arrest duly signed. Admittedly, the arrested person should be duly informed about the reason for arrest, and he deserves the right to confidentially meet his attorney without any time limit. As Yerevan (2007) points out, the person has the right to inform his relatives about the place of his detention and the grounds for his retention; in addition, the suspect can resort to reconciliation with the injured and thus reach a refusal from criminal prosecution in case of reconciliation. The constitutional rights of a person who is arrested are contained in the Fifth and Sixth Amendments to the US Constitution. These main rights which are usually termed ‘Miranda Warnings’ are the right to remain silent, the right to have a lawyer present, and the right to get a lawyer appointed if the suspect cannot afford one. After arrest, if a warrant is not issued by a judge, the arrested deserves the right to get released immediately. If there is a warrant issued, still, there are ways to get released. The first way is to request the judge for personal recognizance that involves the suspect signing a document promising to appear when required. The second way is to have another person; a relative, a friend, guardian, or any other person giving guarantee that they would make the suspect appear when required. The third way is to remit ten percent of the bond amount as a security for the release. Instead of this, the suspect can also remit the full amount of bond in cash, or property (Rights of the criminally accused, 2004). In addition, the accused has the right to hear the charges against him in proper time. In addition, the defendant reserves the right to get information about the names and addresses of the witnesses and any reports, expert witnesses, and examination of any exhibits which are going to be used against him at trial. Moreover, the defendant has the right to file motions to suppress certain evidences out of trial. For example, the police questioning report gained without reading the Miranda Warnings, the things seized without a warrant and so on. After the pre-trial process, the defendant has the right to have a plea of guilty, especially when there is the possibility of common defense like disability. Common Law Defenses According to Scheb (2010, p. 382), Some very common legal defenses seen are lack of mental capacity, diminished mental capacity, alibi, necessity, duress, statute of limitations, former jeopardy, self defense or defense of others, infancy, consent, volenti non fit injuria, entrapment, mistake, and lack of jurisdiction. In fact, the use of insanity as a defense has a long history in the United States, but the trial of John Hinckley and the verdict ‘not guilty by reason of insanity’ in the President Ronald Reagan shooting case made the legal experts review the insanity defenses. Presently, in many of the states in the US, it is for the defendant to provide adequate and convincing evidence to prove ones insanity, and if it takes place, it is for the prosecution to establish the defendant’s sanity by proof. It has now become a practice in states to have verdicts of ‘guilty but mentally ill’. Presently, ‘insanity’ enjoys notoriety as the defense of the wealthy as they spend huge amounts to produce adequate evidence to prove insanity. Necessity too is used as a defense in many cases. In one case, the court held that a husband gets the protection of necessity defense if he drives without a valid license to get medical help for his wife. In addition, as Carlan, Nored & Downey (2011, p. 160) point out, the same allowed an AIDS infected husband and wife to keep marijuana in possession for medical necessity. Duress is used as a defense but it is applied only when the defense is able to prove that there was thereat of imminent physical harm or death. While some states only accept physical harm as duress, other states allow close relatives and some even allow any such third party. In addition, in cases where the defense is able to prove that committing the criminal act was a necessity, or that was the only way available in the given circumstances, necessity can be used as an effective coon defense. Conclusion In total, it becomes evident that though the constitution defines crime with a narrow outlook, the proceedings involved in arrest and trial give a lot of scope for the non-guilty to evade the clutches of law. In other words, though the definition of crime does not indicate humanitarianism, the arrest and trial procedures evidently give a lot of room for humanitarian treatment. References Carlan, P., Nored, L & Downey, R. A. (2011). An Introduction to Criminal Law. US: Jones & Bartlett Learning. Durkheim, E. (1982). The Rules of Sociological Method. US: Free Press. Henry, S & Lanier, M. M. (2001). What is Crime?: Controversies Over the Nature of Crime and What to Do About It?. UK: Rowman & Littlefield Publishers. Hillyard, P. (2004). Beyond Criminology: Taking Harm Seriously. UK: Pluto Press. Principles of international law recognized in the charter of the Nurnberg tribunal and in the judgment of the tribunal. (1950). Yearbook of the International Law Commission. United Nations, 2, 1-3. Rosiers, N. D & Bittle, S. (2004). What is Crime?: Defining Criminal Conduct in Contemporary Society. Law Commission of Canada (Edn). Britain: UBC Press. Rights of criminal accused. (September 2004). Missouri Protection & Advocacy services, 1-9. Retrieved from http://www.moadvocacy.org/Manuals/LegalRights/RightsCriminallyAccused.pdf Scheb, J. M. (2010). Criminal Law and Procedure. USA: Cengage Learning. Tappan, P. W. (1947). Who is the criminal?. American Sociological Review. Jstor, 12(1), 96. Yerevan. (2007). Rights of arrested persons. USAID, 1-8. Retrieved from http://apps.americanbar.org/rol/publications/armenia_rights_of_arrested_persons.pdf Read More