Tuesday, January 5, 2010

My Constitution, Section 27

Section 27 - Criminal proceedings

27(1) All individuals made subject to arrest and detention have the right:
(i) to be informed of what they are suspected of having done or unreasonably failed to do, and to be informed of formal charges as soon as reasonably practicable;
(ii) not to be detained without formal charges for longer than forty-eight hours after arrest, except in times of actual invasion and only if there is reasonable cause that release would interfere with the repulsion of the invasion;
(iii) pursue contact with legal counsel, and to be provided with access to a Public Defender if he cannot obtain other legal counsel.
(iv) not to be held in custody after indictment unless they would flee or otherwise interfere with the course of justice; and
(v) not to be made to post bond for any reason other than to induce attendance at trial, nor post bond beyond what is necessary to induce attendance at trial.
These are various ways of keeping the system honest. Governments have a specific job to do, and any time the government does something in pursuit of that job while using its authority to exercise retaliatory force it must have an objective reason to do so while remembering that they answer to the people who create them and not the people to them.

It is unjust to withhold from a man the reason why his liberty is being curtailed by governments because they answer to him and not the other way around. They are required to justify themselves to him, and to give him the information he needs to make a judgement of their actions in regards to him.

The forty-eight hour is originally a historical one, but it is still relevant today since it takes roughly a day or so for a LEO in one part of the civilised world to get to the furthest-away other part of the civilised world. That gives the LEO enough time in most cases to travel from A to B in any part of the civilised world and to gather sufficient evidence for formal charges. The exemption for invasion is necessary when the man held is reasonably thought to be a combatant in that invasion, in which case military law applies.

The right to pursuit of legal advice is because even though each man should be able to understand the basics of his rights and of proper procedure (the ordinary man should be able to understand this Constitution, for instance), the details take such considerable effort that it is reasonable for a man to rely upon an expert (whose competence he is presumed to be able to judge for himself on, amongst other bases, the basis of his understanding of the basics). Since it is reasonable to compel the government to make allowance for that expectation and so make it possible to have an efficient system that presumes such reliance, it is unjust to then turn around and deny those without means of obtaining their own counsel the use of a public defender when it is the public also acting as prosecutor. Incidentally, observe the connection between this section and section 62(5) in regards to Federal Public Defenders: their pay is required to be market competitive, so this means that there is a better chance than today that they will be reasonably competent by means of their pursuit of decent income rather than being motivated solely by justice at the cost of a higher income in private practice. The pay of State Public Defenders, however, is for the States themselves to deal with, though in a just world the State Constitutions would have provisions similar to 62(5).

For item four, again it is government that has to justify itself, and that if it can’t then a man should be at liberty.

Likewise for the fifth item, there is no justification for any imposition other than reasonable execution of proper government function.

27(2) No individual shall be held to answer for a capital or other heinous felony unless on a presentment or indictment of a jury of at least twelve jurors, except of individuals serving in the Australian military and only in time of invasion, in which case military codes of justice shall apply.
As a jury is selected according to the approval of both the prosecution and the defence, the merit of a jury is that it provides a public check against the judicial branch. The jury represents the people themselves directly, independently of the government personnel of the day. It is a body of men to whom the government must justify themselves in their capacity as some of that government’s masters and the representatives of the other masters.

The reasons for twelve begins with historical continuity, while maintaining a balance between sufficient numbers to have a respectable chance at thorough debate in the jury room while not having so many that deliberations take too long, and also that the existing physical systems in court rooms are already set up for panels of twelve. I suspect, though by no means is this a learned opinion, that part of the historical reason for twelve is that it has been arrived at as a balance point between those too issues – safe verdicts versus timely verdicts, even though originating in mystical or near-mystical veneration of the number. A good law theorist who is also a legal historian is much better placed to answer this matter than I. In the meantime, I object to a departure from twelve on the grounds that we’ve been using that number for centuries, that downward departure is in danger of leading to unsafe verdicts from insufficient debate and argument of jurors within the jury room (and that there is no good cause for such a downward departure, since the cost is a non-issue for this Constitution), and that upward departure would require us to bear the expense of refit of many courtroom jury boxes.

27(3) No individuals shall be required to pay any cost to government prior to trial.
This is the financial application of the principle of innocent until proven guilty, and likewise the financial application of maintenance of liberty until there is just reason to depart from it.

27(4) All individuals made to defend themselves against criminal charges have the right to:
(i) trial by jury if charged with a felony;
(ii) reasonable selection of jurors who the prosecutor also agrees to;
(iii) trial in the State in which the crimes they have been accused of were committed;
(iv) reasonably prompt trial;
(v) compel others to bear witness for the defence;
(vi) refrain from bearing witness against himself; and
(vii) seek the advice of and representation by counsel, whose engagements shall not be denied but for misbehaviour.
For the first item, given what has been said in commentary for the merits of juries, requires explanation not for why there is the right as such but for why it is not extended to trials for misdemeanours. The answer is that since misdemeanours are prior defined and have been set to be genuinely trivial affairs, there is no danger that facing a judge alone on them is going to be a vehicle for authoritarian government. This makes for speedier trials, too, which will be important partly because of the right to speedy trials but also because courts are apt to be filled with quite a number of misdemeanour matters to get through.

The second item is critical to just government. The reasonable man will want to pick jurors who are themselves reasonable and will have no objection to a presumed equally reasonable prosecutor from requiring his own independent assessment of those jurors’ reasonability. This makes for confidence in the whole process, and also concretises the principle of governments being answerable to people.

The third item is part justice-system-related, and part cultural. The part about the justice system is that the procedures of the legal system a man acts in the jurisdiction of may be different to what holds in another state. If the trial were moved to another state then either he’s going to be in the problematic position of having to find a suitable lawyer whose competence he may no longer be in a reasonable position to judge, and even if he could this lawyer is apt to be less up to speed with that system than a local lawyer. This harms his pursuit of justice. Note that he does have the right to waive this right if having it in another state might result in a sooner trial, but that is on his own head.

There is also that cultural differences will affect what precisely is reasonable in one state to another. He is answerable chiefly to his own peers in concrete practice, not those who are quite remote from him and who may have different expectations of him. Compelling him to have a trial of a jury other than the peers he has (or should have) gauged his actions by has the potential to lead to mistakes in selection of jurors even when there is no issue of them being secretly unreasonable. Again, he can waive this right if he doesn’t foresee a problem.

The fourth item arises so that unreasonable delays in staging the trial aren’t used as means to badgering him into a settlement that he wouldn’t otherwise make, nor to keep him in a legal limbo indefinitely (particularly when he is in jail awaiting that trial or there is evidence critical to the trial that he no longer has the use of for the duration).

The fifth is the counterpart of the prosecution’s ability to obtain testimony under warrant. The wilful withholding of evidence makes someone a party to a miscarriage of justice. For the preservation of justice and the maintenance of the presumption of innocence it is even more important that the defence compel testimony than the prosecution, which will typically have substantially greater resources behind it to obtain testimony other than through compulsion under warrant.

When a witness is providing testimony, the compulsion to testify against himself would constitute compulsion of confession and effectively a guilty plea without benefit of arraignment and trial. It is preferable that the defendant not be found guilty for lack of evidence than for this eventuality to take place so that it doesn’t become a vehicle for the avoidance of proper trials.

Finally, the seven item stems from the myriad business rights a man has, such as association, contract, agency, and so on. This right is also apt to raise some eyebrows among lawyers, because it also effectively wipes out the Bar, where currently an engagement can be denied on the grounds of the counsel not being admitted to it. Some pragmatic arguments in favour of retaining this could be made, but these pale in comparison to both the moral arguments against it from the prior-mentioned myriad rights and also that having a bar-admission requirement gives political power to law schools and the law profession beyond just their representative role. This latter arises through ideological capture of the legal profession and using admission as a gatekeeper system that is far more effective than merely law-school admission and graduation requirements (because there is always the possibility of new schools and of the self-educated becoming prominent). That is unacceptable, morally and pragmatically. This being the case, the only reasonable justification for denying someone's appointment as legal counsel is if that counsel is reasonably believed, on the basis of prior behaviour, to be likely to actually misbehave in court and not merely be disliked by the legal profession or not as competent as even an honest well-versed law theorist would think proper. In all other matters, then, the responsibility rests with the client.

27(5) No individual shall be found guilty except upon:
(i) unanimous decision of jurors in a jury trial, or of judges if not a jury trial; and
(ii) decisions made by each juror or judge as being guilty beyond reasonable doubt.
Truth is correspondence to reality, and as there is one reality there is properly one truth about some part of it. If men act and judge reasonably then they will come to the same conclusion as each other so long as there is sufficient evidence for making such a finding beyond reasonable doubt. This means it is not unreasonable to require a unanimous verdict.

The second item originates in the presumption of innocent until proven guilty. It is the government’s responsibility to prove its case, and it is reasonable to require an organisation with such considerable resources and powers as the government to provide such quantity and quality of evidence that there is no reasonable basis for any doubt about the government’s case. This is in contrast to a civil suit, where a balance of probabilities is frequently the criterion for judgement, and where life and limb are not in jeopardy. This requirement also makes the first item possible, and in doing so cements the principle of rule of law rather than rule of men, for otherwise each juror’s finding would be too dependent on personally acquired bases and methods for judgement.

27(6) All sentences shall be as reasonably fit not just the offence at hand but also additional reasonable consideration for attitude towards rule of law in principle while committing the offence.
There is morality in a properly applied principle of tooth for a tooth. The second part of the clause is recognition that sometimes this is not enough, that when someone has shown that they have a criminal disregard for the principle of rights and law then it is reasonable to separate them from society for longer than is ordinarily appropriate the isolated event at hand. There is morality, too, in having sentences that increase in severity based also upon past history of criminality.

As a matter of content, though, I think the three-strikes practice is too harsh, and in the end only served to bring the principle at hand into disrepute by being too abrupt in operation and tying it rather mindlessly to a sports metaphor. What I think is more reasonable is that the first two or three are treated as isolated, then the next few gives the sentencing judge the increasing option to impose tougher sentences, and only at some larger number would mandatory tough sentencing apply. I favour ten as that higher cut off, if only for the psychological impact of someone having committed more crimes than can be counted on one man’s fingers.

27(7) In addition to fines and other punishments as a court may impose, the court shall also impose all costs as were reasonable for government to incur in the whole course of due process; but an individual found not guilty of all charges has the right to reimbursement of such costs as were reasonable for him to bear or incur in his defence through the whole course of due process.
The first half is reasonable enough. If someone is found guilty then it is also reasonable to hold them responsible for the entire cost of what it took to follow the course of justice. Likewise, however, if someone is innocent then it is just that a reasonable attempt at financial restitution for the cost of defending himself be made. As to what is reasonable, remember that for Federal systems there is section 62(5) that states that a Federal Public Defender is to be paid a market pay. It is this that would form the basis of what is reasonable compensation, and again in a just world the State Constitutions would have similar provisions which could be used in the same fashion.

27(8) No individual shall be brought to trial more than once for the same offence.
This is a principle long part of the Anglo legal tradition, and is good. Without a provision like this a government with endless resources could repeatedly try someone until it gets the verdict it wants, or could tie someone down forever in legal matters so that they are distracted from other things the government doesn’t want them doing (say activism or an election). The government will have ample resources to gather evidence for its case, and in light of this Constitution in particular, which wont be implemented unless most people are reasonable, there is plenty of reason to believe that it would not be unreasonable to expect to empanel a reasonable jury in a timely fashion. Thus with this Constitution and what its being law would imply, moreso than ever, there is no excuse for trying a man more than once.


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