Criminal justice system rights comparison for defendants and victims

¶ … victims and defendants rights extended by the Criminal Justice System. Followed by introduction is the comparison of both sides detailing the rights of victims and defendants by the Criminal Justice System. Conclusion given at the end shows that the Criminal Justice System has more rights to the defendants; however, rights for victims are also increasing in several states.

It has been during the last two decades that the rights of crime victims started to be known in the law. Earlier, none of the crime victims had rights during the criminal justice process. For example, they did not have any right that could notify them of court trial or the arrest or release of the defendant. Further to that they had no right to be presented during the trial or other hearings, or to make a statement to the court at sentencing or at other proceedings (Emmet County).

But now, nations have approved many laws that give protection of their rights. Additionally, around 32 nations have included crime victims' rights in their state constitutions. While this constitutional rights for victims stay a principal objective of the crime victims' movement (Emmet County).

Generally, the amendments have allowed victims rights to: be communicated about the proceedings and events, like the discharge of the defendant; attend the trial and other hearings; sit in judgment at serious points in the criminal justice system, for instance sentencing or parole hearings; and finally be rewarded compensation from a convicted offender. However, few countries amendments include lesser rights, while others have broader ones (OJP, 2001).

On the other hand, the possibility of defendants' rights amendments also differs from country to country as many are restricted to victims of felonies or victims of violent offenses, while, a few extend specifically to victims of juvenile offenders. However, most countries give the legislature final authority to describe the scope of the amendment (Philip, 2001).

In general, the defendant's rights to: remain silent, right to confront witnesses, special confrontation rules for child sexual assault cases, right to a public trial, jury trial, be represented by an attorney, right to adequate representation, right to a speedy trial and be placed in double jeopardy (Philip, 2001).

The above introduction on victims and defendants shows that countries are progressing in getting them rights. However, still more rights are offered to the defendants by the criminal justice system.

Crime Victims Rights in Criminal Justice System

Below are some constitutional rights given to the victims by the criminal justice system.

Victims Constitutional Rights

The advocates of victim have been working in order to give crime victims' rights constitutional protection that could elevate the strength, permanence, and enforceability of victims' rights. Additionally, a constitutional amendment at the federal level would also provide a measure of consistency to the rights of crime victims (Philip, 2001).

To list few rights of crime victims such as:

To be treated with justice and respect for their self-respect and solitude during the criminal justice process.

Through the criminal justice process, he/she is fairly protected from the accused.

The right to make a statement to the court at sentencing (NCVC, 1998).

To be informed about the sentence, verdict, imprisonment and release of the charge.

The right to compensation

The name of the person in the office of prosecutor office along with the information about his/her case

Crime victims also have the right to notice of:

The right to have present at all the proceedings of court, subject to the system of proof, an advocate or other support person of the victim's preference.

Emergency as well as medical services from the police agency who is investigating the case (NCVC, 1998)

The right to the appropriate disposition of the case followed by the arrest of the accused.

The right to be there at the trial and all other hearings of the court on the similar basis as the accused, except the victim is to give evidence and the court determines that the victim's proof would be affected materially if the victim hears other evidence at the trial.

All scheduled court proceedings, which also includes sentencing

The right to be notified of court hearings (NCVC, 1998).

To be informed with the prosecution.

In addition, a crime victim may also:

Before the trial and before the jury is selected, the victim can discuss with the prosecutor

Make either an oral statement to the pre-sentence investigator, or have a written influential statement to be included in the pre-sentence investigation report

At the time of sentencing make an oral statement to the judge (NCVC, 1998)

Strength

The guaranteed constitutional rights are much stronger as compared to rights that are just set out in law. Thus, no country law is applicable if it infringes a provision of a nation's constitution as well none of the state laws or state constitutional provision or federal law has the right to break a provision of the United States Constitution (NCVC 1999).

Protecting the rights of crime victims in any nation and federal constitutions places those rights on almost same level with the rights of criminal defendants. However, there are few instances where the rights may be argued to conflict, for instance, where a victim's right to be present at the trial is said to disturb with a defendant's right to a justice trial (NCVC 1999). However, the defendant's right would not be in any case be overshadowed by the rights of crime victims; as courts would be obligated to evaluate any argued or actual conflict of rights on a case-by-case basis in order to balance the benefit of both (NCVC 1999).

In addition, victims' rights would also be reinforced by the increased awareness that comes with constitutional protection as not just judges, defense attorneys, prosecutors and other actors in the criminal justice system would be more informed about victims' rights, but even the general public would also be accustomed with the rights of crime victims (NCVC 1999).

Permanence

Victim advocates also work to include victims' rights into constitutions in order to give them the rights a degree of permanence. Ordinary law can be altered at any point of time by the legislature. However, in compare, it is comparatively difficult to modify the constitution of a country or the United States. Thus, once crime victims' rights are included into a constitution, they are probably to stay there for an indefinite period (NCVC 1999).

Enforceability

Generally providing victims' rights constitutional protections makes those rights enforceable. Therefore, if an official or a state agency disobeys a constitutional right, a court usually has the right to order that official or agency to meet the terms with the constitution (NCVC 1999).

Uniformity

Furthermore to the abovementioned reasons for the rights given to crime victims, an added reason victim advocates seek to place victims' rights in the United States Constitution is "uniformity." As every nation has legal rights for crime victims, as well as and more than half have state constitutional provisions, these rights differ greatly in capacity and strength. Thus, a victims' rights amendment to the United States Constitution would give a basic base of rights for every crime victims (NCVC 1999).

The Process

In many countries, each house of the legislature by a 2/3 majority passes a constitutional amendment. This is usually done at least twice, regularly with a legislative election between votes. Also, identical language is approved every time; where the amendment is then presented to the voters for ratification at a general election. Hence, in many states the procedure of adopting a constitutional amendment takes quite a few years (NCVC 1999).

Defendant's Rights

The Defendant's Right to Remain Silent

The United Sates Constitution in the criminal justice system provides that a defendant cannot "be compelled in any criminal case to be a witness against himself." In other words, the defendant has the right to "sit mute." Hence, the prosecutor cannot call defendant as a witness, nor can a judge or defense attorney compel the defendant to be a witness if the defendant decide to be silent (City of Jackson).

The Defendant's Right to Confront Witnesses

Another right of the defendant given by the "confrontation clause" of the Sixth Amendment is right to "be confronted by the witnesses against" them. This right is the right to cross-examine witnesses, in other words, the right to demand the witnesses to be at the court, "look the defendant in the eye," and subject themselves to questioning by the defense. This right of defendant prevents clandestine trials, but excluding limited exceptions, forbids prosecutors from showing a defendant's guilt with written statements from missing witnesses (City of Jackson).

Special Confrontation Rules for Child Sexual Assault Cases

Legislators in recent years have been apprehended about defendants who get away with the punishment for sexually assaulting young children as they are scared to be a witness in the defendant's presence. Thus, to tackle this issue, many countries have passed particular rules that authorize judges in particular situations to permit children to be a witness by means of closed circuit television (City of Jackson).

Through this, the defendant is able to see the child on a television monitor, and at the same time is unable to see the defendant, while, the defense attorney is in person present where the child testifies and cross-examine the child (City of Jackson).

The Defendant's Right to a Public Trial

This right in the criminal justice system guarantees public trials in criminal cases. This is one of the most important rights since the presence of a defendant's family and friends, ordinary citizens and the press in courtrooms could guarantee that the government observes other important rights related with trials case (Barbara, 2003).

However, in few cases, which usually involve children, the court closes the court to the public. For instance, judges block the public from attending cases when defendants are accused with sexual molesting against children. Besides, the judge may bar witnesses from the courtroom when it seems that they may prepare one another case (Barbara, 2003).

The Defendant's Right to a Jury Trial

This right allows a person accused of a crime the right to be evaluated by a jury. However, this right has been interpreted for long to mean a twelve- person jury that should come at a common decision to find the defendant guilty or not guilty. In many countries, lack of agreement is called a "hung jury," where the defendant goes free unless the prosecutor chooses to retry the case. However, in Oregon and Louisiana, the selected juries may find guilty or not guilty on a vote of ten to two (City of Jackson).

Random selection of the potential jurors must be made from the community, and a process that permits the judge and lawyers to screen out partial jurors and have actual jury at the court. Moreover, a lawyer may remove numerous potential jurors just because he thinks that these people would not be compassionate to his side instead these decisions named "peremptory challenges" may not be supported on the juror's personal characteristics like sex, race, national origin or religion (City of Jackson).

The Defendant's Right to be Represented by an Attorney

The criminal justice system in the United States Constitution provides that in all criminal prosecutions, the accused shall enjoy the right...to have the assistance of counsel for his defense case (Barbara, 2003)."

The judge must hire an attorney for poor defendants, those who are unable to afford to appoint attorneys. These attorneys are appointed at government expense; but only if the defendants might be imprisoned actually for a period of over six months for the crime.

Judges as a matter of practice, appoint attorneys routinely for indigents in almost every case, especially where there is a possibility of a jail sentence. Or else, the judge is limited into giving the unreliable defendant a non-jail sentence or a brief sentence that he or she might consider appropriate after hearing the evidence case (Barbara, 2003).

The Defendant's Right to Adequate Representation rule by the United States Supreme Court has been passed in which both poor defendants who are represented by appointed counsel and defendants, who hire their own attorneys are allowed to acceptable representation. Below are few examples of claims that have been made by the defendants against their attorneys in order to attempt to get their guilty verdicts out and that appellate courts have rejected, these are:

Unable to call sympathetic witnesses at hearing

Using cocaine throughout the time the statement took place

Neglecting to oppose to a judge's incorrect orders to jurors in relation to the problem of evidence

Drawing out proof which is very destructive to the defendant at the same time as interrogating prosecution observers

Constantly counseling a defendant who maintained innocence to claim guilty, as well as Speaking for the defendant at the same time as being suspended from the practice of law for malfunction to disburse state bar payments (Randall, 1998).

Conversely, conditions can be suitably appalling to give reason for discharging a sentence founded on an attorney's lack of skill. Judges have ruled that the subsequent petitions give good reason for a turnaround of a guilty judgment (Randall, 1998):

Placing a law student intern in command of the defense and leaving the courtroom at the same time as the case was going on All through concluding arguments, admitting that the defendant was accountable of a minor crime devoid of first protecting the defendant's support of this method, as well as All through voir dire (interrogation of the adjudicators), flawing to confront two probable jurors who assumed they would be concerned by the defendant's malfunction to give evidence (Randall, 1998).