Right to Counsel and Privilege against Self-Incrimination. Rights and Liberties under the Law

What Does the Fifth Amendment Protect?
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The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

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Over the years, the Supreme Court has interpreted the 4th Amendment to allow the police to search the following:. Places or things that the arrested person could touch or reach or are otherwise in the person's "immediate control". The 5th Amendment requires that a citizen cannot be accused of a serious crime without a grand jury investigation. It also forbids double jeopardy — the act of bringing a person to trial a second time for the same crime.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

The Fifth Amendment also grants the right to a defendant to refrain from testifying against himself or herself. Probably the most famous modern interpretation of this provision is the right to remain silent. The famous Miranda v.

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"Right to Counsel and Privilege against Self-Incrimination: Rights and Liberties under the Law" explores the origins, historical development. Right to Counsel and Privilege against Self-Incrimination. Rights and Liberties under the Law. by John B. Taylor. In , Ernesto Miranda, a poor Mexican.

Arizona case required that individuals arrested for a crime must be advised of their right to remain silent and to have counsel present. This intended to prevent forced or involuntary confessions under police pressure. Although the Supreme Court had long held that involuntary confessions could not be used in federal courts, state courts did not always comply. Now local police departments must issue warnings known as "Miranda Rights" to people that they arrest.

A very important principle related to the 4th and 5th Amendments is the exclusionary rule, which upholds the principle that evidence gathered illegally cannot be used in a trial. The 6th Amendment guarantees that an individual accused of a crime has the right "to have the assistance of counsel for his defense. In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

What is a person can't afford to have a lawyer for his or her defense? Until the ruling in Gideon v. Wainwright, many states did not ensure this right. Clarence Earl Gideon could not afford counsel when he went to trial for breaking into a poolroom in Bay Harbor, Florida. He was convicted and sent to prison, where he spent years researching his rights. Finally, he successfully petitioned the Supreme Court to hear his case, and they ruled in Gideon's favor, ensuring the right to counsel in state as well as federal courts.

The 8th Amendment prohibits "cruel and unusual punishments," a concept rooted in English law. But again, what does the phrase really mean? By far, the most controversial issue that centers on the 8th Amendment is capital punishment, or the practice of issuing death sentences to those convicted of major crimes. Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. In general, states are allowed to pursue their own policies regarding capital punishment.

The Supreme Court did not challenge the death penalty until in Furman v. Even then, it did not judge capital punishment to be cruel and unusual punishment. It simply warned the states that the death penalty was to be carried out in a fair and consistent manner. Rights of those accused of crimes are protected in other parts of the Constitution.

Students may say that the outcome for accused criminals is that the rights guaranteed by the Constitution are more likely to be protected by the government the police. Defendants who know they that can keep silent and that they can ask for a lawyer will be more likely to do those things. Students may say that the effects to society include a more law-abiding police force and greater respect for the rights of all persons, including accused criminals. Other students may say that the consequences for society are that more criminals will go free, because suspects are unlikely to waive their right against self-incrimination, thus making it more difficult for the government to prosecute them Some students may agree with Justice Harlan that the cost to society of freeing criminals is too great.

The provision of this 'headstart' for the police effectively eliminates the accused person's right to counsel. This then begs the question of whether such an advantage should be qualified and curtailed at all? Therefore, if one were to justify the suspension of the right to counsel, it must be done with the intention to ensure that the arrested person will have a proper and speedy trial in Court. The problem with the present state of law in this country is that, in practice, police interrogation is shrouded with mystery and, based on the writers' interviews with clients, sometimes involves questionable methods.

More often that not, interrogation takes place privately in a vacant room, and with no lawyer or friend of the accused present, there is nothing to prevent the recording officer from saying untruthfully that he did not offer any inducement of threat; or, that he did administer the prescribed caution when in fact he may have done nothing of that kind. Again, the issue, if it rises in court, either during the remand proceedings or in trial proper, will only give rise to a contest of the word of the accused person alone and the word of the one or more police officers. Another argument that is often put forward by sceptics to justify the suspension of the exercise of the right to counsel is that, to allow the presence of lawyers during interrogation will impede police investigation.

With due respect, such argument is too simplistic, shallow and lacks of merit. To date no concrete proof has been forwarded to support this contention. Such contention, if at all, only serves to prove that the police is incompetent and too dependent on the result of an interrogation in order to conduct an investigation. It must be borne in mind that interrogation is only one of the many aspects of police investigation. In the United States, the position is different. An arrested person has an immediate right to a legal representation, and he must first be informed of his rights.

Once the arrested person insists or requests for a counsel, then all police investigation must stop until legal representation is made available. In the case of Miranda v Arizona, it was held that:. By custodial interrogation, we mean questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way. As for the procedural safeguards to be employed, unless other fully effective means are devised to inform accused persons of their right of silence and to assure a continuous opportunity to exercise it, the following measures are required.

Prior to any questioning , the person must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed. The defendant may waive effectuation of these rights I provided the waiver is made voluntarily, knowingly and intelligently.

If, however, he indicates in any manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no questioning. Likewise, if the individual is alone and indicates in any manner that he does not wish to be interrogated, the police may not question him. The mere fact that he may have answered some questions or volunteered some statements on his own does not deprive him of the right to refrain from answering any further inquiries until he has consulted with an attorney and thereafter consents to be questioned.

It is submitted that perhaps it is appropriate that amendments be made to the existing laws in order to incorporate the principles as laid down in Miranda v Arizona.

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Such amendments will not only strive to improve the already eroded and illusory right to counsel, but will afford some kind of check and balance, accountability and transparency during police investigation and interrogation. Another important aspect under this right, which requires close scrutiny is the fact the arrested person has the right to consult his lawyer in private and in full confidentiality.

A detained or imprisoned person shall be entitled to communication and consult with his legal counsel. A detained or imprisoned person shall be allowed adequate time and facilities for consultation with his legal counsel. The right of a detained or imprisoned person to be visited by and to consult and communicate, without delay or censorship and in full confidentiality, with legal counsel may not be suspended or restricted save in exceptional circumstances, to be specified by law or lawful regulations, when it is considered indispensable by a judicial or other authority in order to maintain security and good order.

Interviews between a detained or imprisoned person and his legal counsel may be within sight, but not within the hearing of a law enforcement official. Communication between a detained or imprisoned person and his legal counsel mentioned in the present principle shall be inadmissible as evidence against the detained or imprisoned person unless they are connected with a continuing or contemplated crime.

The above principle, to a certain extent has been adopted and enacted under Rule 2 of the Prisons Regulations , which provides that:. Therefore, in cases where a person has been arrested under the provision of the Criminal Procedure Code, the arrested person will be allowed to consult his lawyer in private. The position, however, is different in cases where one is arrested and detained under the Internal Security Act whereby the consultation with lawyers is made within sight and hearing of the detaining authority.

To relate the writer's own experience during a consultation session with an ISA detainee at Tempat Tahanan Perlindungan Taiping 'Kemta' the detaining officer was sitting within an arm's length from where the discussion was being held. This is a clear infringement and a mockery of the right to counsel. In this case the applicants had been arrested and charged in the Kuala Lumpur Magistrate's Court for an offence under the Police Act , and had subsequently been detained at the Kemta under s 8 Internal Security Act 'the Act' , pursuant to orders made thereof by the Minister of Home Affairs.

While under the said detention, the applicants were accorded right of access to counsel and all of them have had numerous consultations with their respective counsels, albeit that the same were only allowed to be convened within the sight and hearing of the officers of the centre, and not otherwise. The applicants averred that the procedure as adopted by the centre hereof amounted to an illegitimate restraint to their right to consult their counsel in confidence, and was in breach of their fundamental rights as enshrined in Article 5 3 of the Federal Constitution, and in the circumstances, applied for declarations to the effect.

The said application, however, was dismissed. Corollary to the right of an arrested person to consult a lawyer should be the right to a phone call immediately after arrest. For the arrested person to realize his right to consult a lawyer of his choice, he should be entitled to the use of the telephone to contact his lawyers or relatives or friends who could engage counsel to represent him.

Refusal or denial of such right would clearly render the right to counsel ineffective and illusory. The following statistics show the number of accused persons who have been interviewed by the Bar Council Legal Aid Centre Kuala Lumpur at the Sungai Buloh prison, and who were either denied or ignorant of their right to counsel. Since the right to make a phone call is non-existent, most of them ended up in the remand centre without being able to notify their families, relatives or friends. Article 5 4 of the Federal Constitution contains the right of an arrested person to be produced before a Magistrate without unreasonable delay, and in any case within 24 hours of arrest.

Thereafter the arrested person cannot be detained any further without the Magistrate's authority.

Section 28 of the Criminal Procedure Code which deals with the arrest of a person also echoes the same principle. Any detention beyond 24 hours must be subjected to judicial scrutiny pursuant to Section of the Criminal Procedure Code to ensure a proper check and balance. According to Syed Agil Barakbah J in Ramli bin Salleh v Inspector Yahya bin Hashim , judicial discretion to order the remand of the arrested person under Section of the Criminal Procedure Code should be exercised sparingly, and among other factors to be taken into consideration before making such order are; the seriousness of the offence, and whether a shorter period would be sufficient to enable the police to complete investigation.

Even though it appears that there are some safeguards under Section of the Criminal Procedure Code, in practice it is a totally different scenario altogether. For instance there is what is called 'chain-smoking remand order', where the arrested person is taken to one Magistrate for 14 days, then to a different Magistrate for another 14 days and it continues like that. In the said case Abdul Wahab Patail J held that the proper way to avoid such abuse is by the Courts applying Section strictly and exercising its discretion to remand under Secion not solely by the demands of convenience of the investigative and prosecution authorities, but by balancing such needs against the fact that any remand order is a restriction of a fundamental liberty against a person who has not been convicted of a offence.

With due respect, the reality of the situation is a far cry from what the learned Judge had described. In the majority of the cases, the Magistrates who are presiding over remand proceedings are young and inexperienced and the High Courts on the hand are normally too taxed to entertain an application for revision on an urgent basis. Furthermore, the lack of implementation of any information technology to record and make available records of an arrested person's movements and arrest history also hampers the proper and just application of the law.

In short, it is not an overstatement to say that the purported safeguard under Section is ineffective if the judicial minds behind it merely recognize the form of the said process, but ignore its substance. Any attempts by the investigative or prosecution authorities to abuse the process must not be condoned, and the Courts, who have been entrusted with the judicial discretion in granting remand orders, must be vigilant and not be fooled by the flimsy excuses given by the police.

Since a person is presumed to be innocent until proven otherwise, once a person has been charged and brought before a court, he should be released pending trial on bail. The grant or refusal of bail is a matter of foremost importance to the accused person because the refusal or denial of bail is clearly a disadvantage to his preparation of his defence or in his attempts to raise funds to engage counsel of his choice.

On the other hand, the prosecution will argue that to allow an accused person to be out on bail is not in the interest of the public as there could be the possibility of tampering with witnesses. In Malaysia, offences are either bailable or non-bailable, but even in cases of non-bailable offences, the court and the police officer of the police district concerned have discretion to grant bail.

The main concern under this discussion is not so much whether an accused person must be given bail in all circumstances, but rather whether the existing bail system which stresses more on money bail or case bail is appropriate. The money bail or cash bail system tends to discriminate the poor and the unfortunate and give preferences to the affluent.

Perhaps, it is time for the Courts to consider 'personal recognizance' bond without sureties before considering other forms of bail. It is essentially a release on personal undertaking given by an accused person to the satisfaction of the Court, and it does not impose any pecuniary condition. Factors which should be taken into consideration to release an accused person on his personal bond are, inter alia; the length of the accused person's residence and roots in the community; his employment status and history; his reputation, character and social standing; whether there is any responsible member of the community who would vouch for his reliability; prior criminal record; and the nature of the offence he is charged with.

If the present practice of imposing money bail or cash bail is continued, then the right to be release pending trial will then only be available to only the affluent, whereas the impecunious will be left to languish in a prison cell, even though he has yet to be proved guilty. Unlike in the European countries and in some commonwealth jurisdictions, the principle of 'equality of arms' is not recognized in Malaysia.

The notion of 'equality of arms'-that it is fair if the defence are able to have access to prosecution evidence, so as to compensate for the disparity in resources and to raise them to a roughly equal position -is lacking, and this to a certain extent has put the accused person in a more difficult position in order to defend himself. Furthermore, the prosecution were under a duty, which continued during pre-trial period and throughout the trial, to disclose to the defence all relevant scientific material, whether it strengthened the prosecution case or assisted the defence case and whether or not the defence made a specific request for disclosure.

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Pursuant to that duty the prosecution were required to make available records of all relevant experiments and tests which tended to cast doubts on the opinions he was expressing was under a clear obligation to bring the records of such experiments an tests to the attention of the solicitor who was instructing him so that they might be disclosed to the other party.

The importance of the right of discovery as being part of the right to a fair trial cannot be dismissed. To quote again from the case of R v Ward:. It has to be borne in mind that the police gather evidence as trustees, rather than 'for the prosecution' of the State, so that it does not belong to the prosecution in any way, but is rather a form of public property, that should be open and accessible to the defence as well. The principle has been accepted that the search of the truth is advanced rather than retarded by disclosure of all relevant material.

Nineteenth-Century Developments

So long as the 'trusteeship' doctrine is not accepted, there remains the risk of 'miscarriages of justice' cases as uncovered in the United Kingdom around , many of which stemmed from the failure of the police or prosecution to disclose to the defence material that would assist them. As a result of a series of miscarriage of justice, the Criminal Procedure and Investigations Act , was legislated which inter alia, provides for discovery and disclosure of documents. In Malaysia, there appears to be a limited scope for discovery in criminal proceedings.

Section 51 of the Criminal Procedure Code is a general provision which allows for disclosure, albeit somewhat restricted as opposed to the concept as adopted in the United Kingdom for instance. In brief, Section 51 enables an accused person or the prosecution to apply to the court at any stage of investigation, inquiry, trial or other proceeding, for the production of any property or document in the possession of any person who shall on the issuance of the summons be required to attend and produce the said property or document.

It however does not allow an accused person the right to discovery of all documents or inspection of all documents seized by the police.

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The position of the law governing discovery is constantly changing, and of late the trend appears to be in favour of expanding the right of discovery. In the case of Datuk Tiah Thee Kian v Public Prosecutor , the High Court appears to be in favour of broadening the right of discovery, whereby the court held that the court may allow an application by the defence for inspection of documents which are in the possession of the prosecution or enforcement officers even though those documents are not specified in the charge.

Be that as it may, the position is still far from adequate. Notwithstanding, the decision in Datuk Tiah Thee Kian , the position in courts is still the same, whereby there is only a limited right to the pre-trial discovery of documents such as the 'First Information Report' FIR , the accused person's cautioned or un-cautioned statements , and in limited situation, reports by experts. Even then, the said documents are provided only upon request, whereas it is submitted it ought to be given as a matter of right.

The writer still cannot understand the logic of refusing full disclosure in all criminal proceedings. At present, the prosecution has access to the accused person and his witnesses and extensive powers of search and seizure. If the accused person should place his cards on the table so should the prosecution. As such, until and unless the accused person has been raised to a roughly equal position with the prosecution, the accused person will always be handicapped. Till then, a defence counsel will only be armed with the First Information Report, the client's statements and his wit.

Even though the plain reading of the Constitution does not expressly provide for the right to a speedy trial or a trial within a reasonable time it does, however, confer upon a person charged with a criminal offence the right to a fair trial. This right to a fair trial, in the writer's view, includes the right to a speedy trial.

The right to be tried expeditiously and without delay is an important facet to a fair trial. This is because delay is a major contributing factor for the denial of human rights. Most public servants are insensitive to their fellows citizens Unless we devise a system where delay in the decision making process is avoided, millions of people will remain victims of human rights violations We can ensure better observation and protection of human rights only by increasing people's awareness about their rights, and sensitizing security forces and public servants of their duties.

Right to Counsel and Privilege against Self Incrimination Rights and Liberties under the Law America

In the local context, the right to a speedy trial was expressly dealt with in the case of Public Prosecutor v Choo Chuan Wang. Edgar Joseph Jr J as he then was quoted several Indian Supreme Court decisions and held that Article 5 1 of the Federal Constitution does imply in favour of an accused person the right to a fair hearing within a reasonable time, by an impartial Court established by law.

Further, that this right is identical in content with the express constitutional guarantee inserted by the Sixth Amendment in the American Constitution. That the American precedents on the Sixth Amendment of that Constitution would be equally attracted and applicable as persuasive on this facet of Article 21 of our Constitution as well.

That once the constitutional guarantee on a speedy trial and the right to a fair, just and reasonable procedure under Article 21 has been violated, then the accused is entitled to an unconditional release and the charges levelled against him would fall to the ground. That a callous and inordinate prolonged delay of ten years or more, which, in no way arises from the accused's default or is otherwise not occasioned due to any extra-ordinary and exceptional reasons , in the context of reversal of a clean acquittal on a capital charge, would be per se prejudicial to the accused and would mainly violate the constitutional guarantee of a speedy trial under Article The learned Judge also noted that in order to show that there has been a breach of his fundamental right, the accused must allege some kind of prejudice, such as witnesses whom he had intended to call being untraceable or being incapable of giving evidence or the destruction or loss of other evidence or indeed any other prejudice, occasioned by reason of the delay.

Another factor which greatly contributes to the delay of the disposal of criminal proceedings is the delay on the part of the police to complete their investigations before the date of hearing. Her Ladyship Siti Norma Yaakob in her paper presented at the ASEAN Law Association Conference, in Manila in pointed out that in criminal proceedings, more often than not, on the day fixed for hearing the police have still not completed their investigations in which case the prosecuting officer is forced to seek an adjournment and the reason for such request will always be that he has not received the investigation papers as the investigating officer concerned was still investigating into the case.

To relate a typical incident, the writer once represented a person charged of sodomy before the Ampang Sessions Court. On numerous occasions, the prosecution had sought for adjournments on the basis that the medical report of the victim is not ready. Finally, after several adjournments, the writer raised a preliminary objection on the ground that the accused person's right to a speedy trial as enunciated in Choo Chuan Wang had been infringed as the trial has been delayed for almost two years.

The preliminary objection however was dismissed, not to the surprise of the writer. The trial finally started several months later, and at the end of the prosecution case the accused person was acquitted. Had the trial commenced earlier, the accused would have been spared the long ordeal of being in remand. That in a nutshell is the present state in this country.