Indigenous justice and the right to a fair trial

Corradi ’ s analysis of how the right to a fair trial may be interpreted cross-culturally suggests that areas of tension between indigenous procedural norms and mainstream interpretations of this right may open windows of opportunity for exchange and collaboration between state and indigenous authorities, which may strengthen both indigenous and state legal orders..

Social Media, Venue and the Right to a Fair Trial

Judicial failure to recognize social media\u27s influence on juror decision making has identifiable constitutional implications. The Sixth Amendment right to a fair trial demands that courts grant a defendant\u27s change of venue motion when media-generated pretrial publicity invades the unbiased sensibility of those who are asked to sit in judgment. Courts limit publicity suitable for granting a defendant\u27s motion to information culled from newspapers, radio, and television reports. Since about 2014, however, a handful of defendants have introduced social media posts to support their claims of unconstitutional bias in the community. Despite defendants\u27 introduction of negative social media in support of their claims, these same courts have yet to include social media in their evaluation of pretrial publicity bias. But social media is media, and as this article demonstrates, trial court judges faced with deciding change of venue motions have a constitutional obligation to include social media in their evaluations. The collective refusal to treat social media the same as biased television, radio, or print media, suggests an erroneous assumption on the part of lower courts that social media is somehow different. This article identifies three reasons as justification for dismissing social media: social media is too recent a medium to fully understand and analyze, social media is not a legitimate news source, and social media is opinion based. Application of pretrial social media publicity to long-standing Supreme Court change of venue doctrine, coupled with its exploration of scientific and social research on social media influence, debunk these lower court rationalizations. This article demonstrates that the reluctance of courts to consider social media evidence when deciding whether to grant a motion for a change of venue is a violation of any defendant\u27s Sixth Amendment right to a fair trial. On a larger scale, the article demands that courts embrace our new reality. Social media intersects with criminal justice, and our daily lives, in ways that demand judicial recognition

The Anonymous Accused: Protecting Defendants\u27 Rights in High-Profile Criminal Cases

The public\u27s interest in high-profile crimes and the media\u27s coverage of high-profile trials have significantly increased over the past. fifty years, raising significant concerns about a high-profile defendant\u27s right to a fair trial. This Note examines how pretrial publicity can affect the fairness of a high-profile criminal case and how courts have attempted to protect a high-profile defendant\u27s Sixth Amendment right to a fair trial while still assuring the media\u27s First Amendment right to freedom of the press. Specifically, the Note discusses and analyzes court made remedies as well as new remedies scholars have proposed to protect a high-profile criminal defendant\u27s right to a fair trial. Finding such remedies ineffective, the Note considers whether defendant anonymity, which courts can apply in civil trials, could be an effective protection of a high-profile defendant\u27s right to a fair trial

Innocence, Harmless Error, and Federal Wrongful Conviction Law

This Article examines the body of law emerging in cases brought by former criminal defendants once exonerated, often through DNA testing, which may fundamentally reshape our criminal justice system. Federal wrongful conviction actions share a novel construction - they rely on criminal procedure rights incorporated as an element in a civil rights lawsuit. During a criminal trial, remedies for violations of procedural rights are often seen as truth defeating, because they exclude evidence possibly probative of guilt. In a civil wrongful conviction action, that remedial paradigm is reversed. The exonerated defendant instead seeks to remedy government misconduct that was truth defeating and concealed evidence of innocence. This Article contends that in a civil case, the harmless error rules that limit remedies for violations of criminal procedure rights do not apply. Further, though not generally recognized as such, the Supreme Court has created internal harmless error rules to accompany each of the relevant fair trial claims: the Brady v. Maryland right to have exculpatory evidence disclosed; the right to effective assistance of counsel; the right to be free from suggestive eyewitness identification procedures; and the right not to be subject to a coerced confession. Civil claims suggest the transformative result that for each right, harmless error insulation is stripped away. This Article concludes by reflecting on how wrongful conviction suits may spearhead wide-ranging reform of our criminal justice system and renew substantive development of the constitutional right to a fair trial

The right to a fair trial and international cooperation in criminal matters: Article 6 ECHR and the recovery of assets in grand corruption cases

Are fair trial rights general principles of transnational criminal law (TCL)? If so, how do they protect individuals who are affected by transnational proceedings? Posing these questions in the context of international cooperation efforts aimed at ‘asset recovery’, this contribution asks whether State Parties to the European Convention on Human Rights (ECHR) are likely to violate the right to a fair trial in Article 6 ECHR when they directly enforce confiscation orders that are issued abroad with respect to the proceeds, objects or instrumentalities of high-value, high-level political corruption offences or substitute assets. The European Court of Human Rights (ECtHR) considers that ECHR State Parties might exceptionally violate Article 6 ECHR in cooperative cases if the alleged victim ‘has suffered or risks suffering a flagrant denial of a fair trial in the requesting country’. Surveying its case law, I argue that the ‘flagrant denial of justice’ standard greatly attenuates the right to a fair trial in cases of international cooperation in criminal matters. In practice, the Court appears unwilling to find violations of Article 6 ECHR in such cases when the foreign proceedings do not involve allegations of treatment contrary to Articles 2 or 3 ECHR. This, it is submitted, reflects the difficulty of assessing ‘fairness’ in globalised law enforcement situations, a factor that also complicates efforts to deduce a general principle of a right to a fair trial from ‘justice’ as an objective of TCL. If those principles are formulated inductively and comparatively, the ECtHR’s case law nevertheless goes some way towards showing that a weak transnational fair trial right may be a general principle of TCL within the ‘legal space’ of the ECHR

Space, signs and symbolic power in Chinese criminal courtrooms

Parallel Session: LThe right to a fair trial as a fundamental human right is now widely accepted by the international community (McConville, 2011). While the notion of a fair trial is typically associated with procedural safeguards that are expressly provided in law, such as the right to counsel, the right to defending oneself, fairness can be reflected in architectural or spatial dimensions (Tait, 2011). Courtroom design, apart from achieving its main functional objectives, is the embodiment of institutional values of “trust, hope and faith in ...postprin

Rajabu and others v. Tanzania. A step toward the abolition of death penalty in Africa or a missed opportunity?

The article analyses the recent judgment of the African Court on Human and People Rights in the case of Rajabu and others v. Tanzania. The case concerns five Tanzanian nationals condemned to death by hanging and concerns three different but related objects: Tanzania’s violation of the right to a fair trial, of the right to life and of the right to dignity. The article focuses on the Court's reasoning on the right to life and the right to dignity as opposed to the issue of death penalty. Indeed, the judgment is particularly relevant, as the Court deals with the issue of death penalty or the first time in its history

The Fairness of a Fair Trial: Not Guilty Pleas and the Right to Effective Assistance of Counsel

The pervasiveness of plea bargaining in our modern justice system has led too many courts to conclude that the Sixth Amendment right to effective assistance of counsel applies to not guilty pleas. This Note argues that, although the United States Supreme Court has never directly addressed this issue, its decisions inform a Sixth Amendment analysis and indicate that the right to effective assistance of counsel is limited to providing the defendant a fair trial. The Court has suggested that a critical stage at which this right attaches must, in contrast to a not guilty plea, affect the fairness of a defendant’s trial. It has further indicated that a defendant who receives a fair trial after pleading not guilty cannot establish the constitutional prejudice required to demonstrate ineffective assistance. Finally, the past seventy years of Supreme Court Sixth Amendment jurisprudence supports the conclusion that the gravamen of an ineffective assistance of counsel claim is an assertion that the defendant was denied a fair trial

Undervaluing the Right to an Interpreter: How Societal and Judicial Interests Threaten the Fairness of Multilingual Criminal Proceedings

By its very nature, the right to a fair trial involves a balancing of competing interests. This paper examines how such a balancing process has undermined one particular fair trial right: the right to an interpreter under international law. In order to do so, the paper sets out the current contours of the right, highlighting and analysing the numerous trade offs that have been made in its development. The resulting analysis concludes that courts often prioritize judicial efficiency and economic frugality at the expense of the right to an interpreter with little or no understanding of the impact these decisions have on the effectiveness of the right. The end result is a balance that neuters the practical application of the right and undermines the fairness of criminal proceedings involving defendants who do not speak the language of the court

A Fair Trial: When the Constitution Requires Attorneys to Investigate Their Clients\u27 Brains

The U.S. Constitution guarantees every criminal defendant the right to a fair trial. This fundamental right includes the right to a defense counsel who provides effective assistance. To be effective, attorneys must sometimes develop specific types of evidence in crafting the best defense. In recent years, the U.S. Supreme Court has found that defense attorneys did not provide effective assistance when they failed to consider neuroscience. But when must defense attorneys develop neuroscience in order to provide effective assistance? This question is difficult because the standard for determining effective assistance is still evolving. There are two leading approaches. First, in Strickland v. Washington, the Court adopted a two-prong “reasonableness” test, which, according to Justice O’Conner, may result in court decisions that fail to properly protect a criminal defendant’s rights. Recently, courts have adopted a second approach based on guidelines promulgated by the American Bar Association. This Note aims to answer this question. It first provides a background on the right to effective assistance of counsel and briefly describes neuroscience evidence, oppositions to and limitations on in its use, and its admissibility in court. Second, this Note attempts to give some guidance to attorneys by exploring the American Bar Association and U.S. Supreme Court standards. Third, it summarizes the results of a statistical analysis conducted by the author, which helps further define when courts require attorneys to develop neuroscience evidence. It concludes by arguing that attorneys need guidance to ensure they are not violating the Sixth Amendment. This Note expands on the American Bar Association’s standard and suggests a framework attorneys may use to determine whether they should develop neuroscience evidence to ensure that their client has a fair trial