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Loss of Centeredness

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Submitted By bknow1371
Words 1212
Pages 5
Tabitha Hall
4/28/13
Individual Project 3
Introduction to American Court System
American InterContinental University
Randolph Fein

Abstract
In this paper I will discuss that Criminals are afforded certain rights of the Bill of Rights. States are not given such protections as they are not in the same class as the defendant. The Bill of Rights is for all persons in these United States. Corporations also have this protection.

In the time of this countries creation the Constitution was not complete without the protections of the Bill of Rights. This Bill was created to keep the governments in check in respect to the people who gave them the power to operate. Since the Bill of Rights was created in 1791 it had to be added or incorporated into the States relations with its citizenry, the original version was for the federal governments dealing with State Citizens. Knowing that tyranny was only a step away from that in power or in commerce this Bill has the power to keep the authorities in their respective place and adhere to the rules of procedure. Criminals have certain protections of the bill of Rights also, as they are citizens of the several States or the Federal government, being under the protection of this document it affords them a myriad of guarantees that a State cannot use. The most important right given is the right to remain silent which is the 5th Amendment. This is important because the authorities will use what is stated by a defendant against him or her with no regard as to the effect it will have on the case or whether it is prejudicial, they will use all information gathered against the defendant. Most criminals when arrested do not invoke this right and are thus condemned by their own words called a confession. The next right is the ability to confront the witness to the alleged crime be it a federal official, a state official or a civilian. This right has the power if utilized correctly to free the defendant if improprieties are found in the witness’s testimony or the facts do not add up to the given charge. States are not afforded a right to remain silent being a sovereign entity it must answer for all violation committed or alleged. The right for confrontation of the accuser is also irrelevant to the states as the accuser will be in the court in which the state has been carried. Being sovereign entities the states must answer for all violation presented by the accuser and are only given the 10th Amendment in which to claim the powers enumerated by the Constitution. The right to a speedy trial is given to criminals as they cannot held for an indefinite period of time, since there are no time limits given this is adjudicated on a case by case basis. This right is not afforded to the states. The 8th Amendment also has not been applied to states as it defends against excessive fines and bail amounts and cruel and unusual punishment. Criminals also have the right to be represented by an attorney of which the sovereign does not have as representation by an attorney is a waiver of sovereignty which states cannot do. Another right afforded to criminals is a right to have a public trial open in records and in physical nature to all who want to attend or view the proceedings of. A right to adequate representation is also given to criminals whether they are indigent and have a public attorney or they hire their own attorney the standard of the service must be equal or the defendant can get another lawyer. The right not to be placed in double jeopardy is also given to the defendant to keep the state from harassing the defendant on the same charges. States are not afforded any of these rights as the sovereign they have the moral and compensatory high ground to operate from. The difference between procedural and substantive protections is that if a state's actions violate a new procedural protection, then it will not apply retroactively. More importantly, if the state can prove that the violation was "harmless beyond a reasonable doubt" it will not overturn a conviction. A procedural protection involves the process of the criminal case shall proceed, this is a basic listing of the procedure in a criminal case, 1. An arrest must be based on probable cause; 2. A state or federal prosecutor files a charging instrument setting out what you are accused of doing; 3. You are arraigned on the charges; 4. You advise the court whether or not you are seeking court-appointed counsel; 5. A bond amount will be set in your case; 6. You will be sent notice of a court appearance; 7. If you cannot reach a plea bargain agreement, then your case is set for a pre-trial and trial; 8. If you are convicted at trial, you have the right to appeal.

Such as the right to a jury. A substantive protection is more fundamental, like the prohibition on double jeopardy also based on the facts of the case given. Every criminal charge has elements which are the specific acts needed to commit the crime alleged to. Substantive protections require that the Prosecutor must prove every element is met in order to have a conviction of hat alleged crime. The major difference between procedural protections and substantive protections is that the procedural deals with the procedure in which the case must proceed by and the substantive deals with the facts or substance of the case. The procedural protections afforded to criminals are as follows the right to a jury trial, the right against self-incrimination, right to a speedy trial, right to a jury trial and the right to an attorney, these are the procedural rights which affect the procedure of the case, also includes procedure of the arrest, Miranda rights of the defendant, the validity of a warrant and personal service are all procedural aspects of a criminal case. Also taking into account during the proceedings of the court would be the treatment of the defendant during questioning, if the defendant spends an unusually long time in one session and is denied water, food or sleep, this would fall under a procedural violation and could be grounds for dismissal if a confession was garnered through the use of such tactics or the evidence could be thrown out also which could damage the case. Procedural law comprises the rules the court must conform to during the proceedings of the court in criminal, civil and administrative proceedings. The substantive protections are the right not to be placed in double jeopardy, the right to remain silent and the presumption of innocence of the defendant. A major substantive protection is the ability of the prosecutor to prove beyond a reasonable doubt the guilt of the defendant, if this is not proven then there is no conviction.

Reference

Retrieved from (2013) http://www.nolo.com/legal-encyclopedia/defendants-rights-during-court-trial-29793.html

Retrieved from (2013) http://law2.umkc.edu/faculty/projects/ftrials/conlaw/incorp.htm

Retrieved from 2013) http://wiki.answers.com/Q/How_are_states_rights_protected_in_the_Bill_of_Rights

Retrieved from (2013) http://answers.yahoo.com/question/index?qid=20120229211023AACtjXq

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