...Innocence at Stake: Possibility of DNA Collection from Arrestees in Canada Md Washim Ahmed ABSTRACT Followed by a decision of the Supreme Court of the United States, which approved the collection of a defendant’s DNA upon arrests under the Fourth Amendment, the Minister of Justice, Peter MacKay indicated in an interview with the Globe and Mail that he and his Ministry are considering a similar model for Canada. This paper examines the possibility of a similar legislative framework in Canada and argues that although collection of DNA upon arrests was found justified under the Fourth Amendment, it does not necessarily mean that it will be found justified under the Canadian Charter of Rights and Freedoms. While s.8 of the Charter seems to give similar protection as the Fourth Amendment, they have very different requirements for judicial authorization, reasonableness and standard of “probable cause”. Scrutinizing those different requirements and standards, this paper holds that the process of DNA collection is highly intrusive and would be a serious violation of s.8 of the Charter as it could reveal an excessive amount of private information about an individual over which he/she has a strong reasonable expectation of privacy. Furthermore, it will deprive people from their right to be presumed innocent, which is protected under s.11 (d) and significantly impact socially marginalized groups. Finally, this paper conducts an analysis of the violations under s.1 of...
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...Two Models of the Criminal Process HERBERT L. PACKER Source: Reprinted from The Limits of the Criminal Sanction by Herbert L. Packer, with the permission of the publishers, Stanford University Press. ( 1968 by Herbert L. Packer. In one of the most important contributions to systematic thought about the administration of criminal justice, Herbert Packer articulates the values supporting two models of the justice process. He notes the gulf existing between the "Due Process Model" of criminal administration, with its emphasis on the rights of the individual, and the "Crime Control Model," which sees the regulation of criminal conduct as the most important function of the judicial system. T wo models of the criminal process will let us perceive the normative antinomy at the heart of the criminal law. These models are not labeled Is and Ought, nor are they to be taken in that sense. Rather, they represent an attempt to abstract two separate value systems that compete for priority in the operation of the criminal process. Neither is presented as either corresponding to reality or representing the ideal to the exclusion of the other. The two models merely afford a convenient way to talk about the operation of a process whose day-to-day functioning involves a constant series of minute adjustments between the competing demands of two value systems and whose normative future likewise involves a series of resolutions of the tensions between competing claims. I call...
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...Two Models of the Criminal Process HERBERT L. PACKER Source: Reprinted from The Limits of the Criminal Sanction by Herbert L. Packer, with the permission of the publishers, Stanford University Press. 1968 by Herbert L. Packer. In one of the most important contributions to systematic thought about the administration of criminal justice, Herbert Packer articulates the values supporting two models of the justice process. He notes the gulf existing between the "Due Process Model" of criminal administration, with its emphasis on the rights of the individual, and the "Crime Control Model," which sees the regulation of criminal conduct as the most important function of the judicial system. T wo models of the criminal process will let us perceive the normative antinomy at the heart of the criminal law. These models are not labeled Is and Ought, nor are they to be taken in that sense. Rather, they represent an attempt to abstract two separate value systems that compete for priority in the operation of the criminal process. Neither is presented as either corresponding to reality or representing the ideal to the exclusion of the other. The two models merely afford a convenient way to talk about the operation of a process whose day-to-day functioning involves a constant series of minute adjustments between the competing demands of two value systems and whose normative future likewise involves a series of resolutions of the tensions between competing claims. I call these two...
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...THE ARGUMENT FOR A CONSTITUTIONAL RIGHT TO REPRESENTATION AT BAIL HEARINGS IN ALL CRIMINAL CASES IN STATE COURT The right to legal representation is generally accepted in the United States as a Constitutional right guaranteed to everyone. The Supreme Court promised the right to counsel to “ any person haled into court” in the infamous Gideon v Wainwright case. This case was instrumental in advancing the rights of indigent defendants through its proclamation that the Sixth Amendment right to counsel in criminal proceedings should also apply to State Courts. However, Gideon’s promise to counsel has yet to completely guarantee equal access to justice when first appearing at judicial proceedings in state courts. Although defendants who can afford lawyers will usually hire one from the onset of a criminal proceeding, the right to counsel for indigent defendants (i.e. a state-provided attorney) is interpreted as attaching at varying stages of a prosecution in different states. Only eight states guarantee indigent defendants the right to legal counsel at the initial bail hearing. Representation at the initial bail hearing is critical as a lawyer’s intervention is crucial for obtaining a defendant’s release and for protecting a defendant’s due process right (guaranteed in the Fourteenth amendment) against an unreasonable denial of liberty during pretrial detention. The lack of counsel in pretrial proceedings can result in numerous consequences; some include a high number of pleas...
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...1. Getting started It is a matter of some interest that logic and the law should share so many of their foundational concepts – concepts such as proof, evidence, truth, inference, probability, plausibility, presumption and reasonableness – and yet should have had very little to say to one another within living memory. It is not especially surprising that logic and the law should have suffered (I use the word in its Latin sense) this alienation. With regard to its foundational concepts – for example, the concept of proof beyond a reasonable doubt, the concept of the balance of probabilities, the concept of the reasonable person – the law embeds am implied epistemology of implicity. There exists among practitioners, especially judges, the view that definitions and formalizations of such notions are both unnecessary and is liable to conceptual distortion. But definitions and formalizations are mother’s milk to logicians. Where the law favours approximation and contextually sensitive nuance, logicians thrive on exactitude and rigour. So why wouldn’t the lawyers and logicians go about their business without the regard of the one for the other? It would be wrong to leave the impression that there is no analytical exactitude in the law. It would also be a mistake to suggest that there has been no contact with the formal disciplines. Trials are often complex and judgements often embed exhaustive and detailed analyses of relevant points of law. In recent years probability theorists have...
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...MIP Course. Week 2. LEGAL PRINCIPLES OF IP LAW Written Law To be a law, it has to be written. Presumption of innocence (not like in US) Case Law Case that happened before, and to which we are referring. It is a reported decisions. Jurisprudence. Every product has some patent, copyright or trade mark or IP protection. Even a vacuum. Patent (=brevet) It protect the concept of the construction of the article. Has to have: novelty, industrial steps, and has to have a commercial aim. Duration: 20 years. You have to reapply for it, or invent a new thing. It is a short-term monopoly. It is a negative right: to prevent other people to use it. Trade marks (=marques) Mickey Mouse was allowed an extension of its copyright by lobbying the US. So the firm was really powerful. * What is a trade mark? Symbol that can be a design, logo, words, colour, smell, sound. It is the mark of the maker. Trade mark is about goodwill towards the customer, to help them recognise the product they want. We cannot call something Champagne when it does not come from this region in France. * When did it appear? 1986: first registry trade mark. It is an old protection. * How can you protect your trade mark? You can register it at the IP Office. But if it becomes a work in the common usage, you cannot protect it anymore (Hoover, Kleenex, Aspirin). Sometimes, you find 2 same trademarks. But it is okay because they are in two different classes (two different sectors in the industry)...
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...labor; * general anesthesia; * twin or multiple births; * increased amounts of amniotic fluid (polyhydramnios); * delivery of a large baby; * history of more than five pregnancies; * abnormal labor (dystocia); and * infection (chorioamnionitis). In addition, fragments of placenta remaining in the uterus after delivery or benign growths within the walls of the uterus (known as fibroids) can also prevent the uterus from contracting normally. Active Management Many practitioners actively manage the third stage of labor, gently pulling the umbilical cord and administering oxytocin to help the uterus contract and promote delivery of the placenta. The uterus can also be massaged to help it contract firmly. Many studies show this technique reduces postpartum hemorrhage and the need for blood transfusions. For this reason, use of oxytocin after delivery, sometimes right after the baby is delivered and sometimes after the placenta has been delivered, is now commonplace. Oxytocin is given intravenously or injected into a muscle. If heavy bleeding from atony occurs despite the use of oxytocin after delivery, then other drugs such as...
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...The Court’s Administration: An Analysis of the Roles in the Process of Criminal Trial The Court’s Administration: An Analysis of the Roles in the Process of Criminal Trial Criminal procedure is the process of investigating, prosecuting, and punishing crimes (Scheb & Sharma, 2013). Criminal procedure includes law enforcement activities, including the arrest, interrogation, and identification of suspects. Criminal procedure also involves a process of criminal trial, in which a person is tried for their crime. The trial process can be extensive, but criminal charges can also be settled in the pretrial process. The pretrial process largely determines the outcome of a criminal case; most criminal cases never make it to trial. Charges against the defendant may be dropped or dismissed due to a lack of evidence. The defendant may also plead guilty without trial. Many guilty pleas result from plea negotiations between the prosecutors and defendant or defense attorneys. This pretrial process makes a formal criminal trial unnecessary (Scheb & Sharma, 2013). There are various roles in the criminal trial process, including the judge, the prosecuting attorneys, the jury, and the expert witnesses such as forensic psychologists. The assortment of roles has a high effect on the outcome for the defendant. A prosecutor is responsible for determining what charges to pursue and whether to plea bargain with the defendant. A jury decides a verdict. A judge decides a sentence. A forensic...
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...I. The Right to a Trial by Jury: The Threat of Extinction, Limited Availability & Reduced Effectiveness Contrary to what may be a common public perception, jury trials are a dying breed in America. Jury trials have been declining steadily for the past thirty years. “If the trend continues, within the foreseeable future, civil jury trials in America may eventually become…extinct.” This may seem surprising because the U.S. Constitution ensures the right to a jury trial in criminal trials under the 6th Amendment and in civil trials through the 7th Amendment. The reality, however, is that parties are finding more effective, faster, and more cost-effective means of adjudicating legal disputes through alternative dispute resolution (ADR) forums that are evolving to an ever-increasing degree. The American Jury Project (AJP) of 2005, a national symposium of the American Bar Association, was held to establish the standards and principles for juries and jury trials. Principle 1 states that “the right to a jury trial should be preserved; however, the lack of available jurors and the rules and procedures used in the jury selection process have reduced its effectiveness and have made this means of seeking justice a slow, unpredictable, and expensive gamble that is driving parties to seek ADR through other forums. One author described a powerful contradiction in the jury system that confronts people in America: “We love the idea of the jury but hate the way it works...
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...------------------------------------------------- Superior orders From Wikipedia, the free encyclopedia (Redirected from Superior Orders) Superior orders, often known as the Nuremberg defense, lawful orders or by the German phrase "Befehl ist Befehl" ("orders are orders"), is a plea in a court of law that a person, whether a member of the armed forces or a civilian, not be held guilty for actions which were ordered by a superior officer or a public official.[1] The superior orders plea is often regarded as the complement to command responsibility.[2] One of the most noted uses of this plea, or "defense," was by the accused in the 1945–46 Nuremberg Trials, such that it is also called the "Nuremberg defense". The Nuremberg Trials were a series of military tribunals, held by the main victorious Allied forces after World War II, most notable for the prosecution of prominent members of the political, military, and economic leadership of the defeated Nazi Germany. It was during these trials, under the London Charter of the International Military Tribunal which set them up, that the defense of superior orders was no longer considered enough to escape punishment; but merely enough to lessen punishment.[3] Historically, the plea of superior orders has been used both before and after the Nuremberg Trials, with a notable lack of consistency in various rulings. Apart from the specific plea of Superior Orders, discussions about how the general concept of superior orders ought to...
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...assessing in truthfulness of suspects and evaluating the validity of their confessions. Psychological theory and techniques can be used to improve police officers evaluations of criminal suspects. * Profiling is usually performed at the beginning of criminal investigation when the police need help focusing on certain types of people who might be the suspect * Once a suspect has been identified law enforcement officials use other procedures to determine whether any of them should be charged. * Police look for visual and verbal cues to determine whether they are giving truthful responses Suspects are sometimes given a lie detector test to encourage them to confess. * The tests provide more information about their guilt or innocence. * They conflict with some psychological findings about their accuracy. * Sometimes they are submitted into evidence. * Many psychologists question the validity of the test. The police interrogate suspects and encourage them to confess because the confessions make it more likely that suspects will successfully prosecute and eventually convicted the suspects. Psychological finding often conflict with the courts evaluations of a voluntary confession. There is some evidence psychological characteristics are linked to behavioral patterns and they can be detected by a psychological analysis of crime scenes. * Criminal profiling is used to narrow criminal investigations to suspects who possess certain behavioral and personality...
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...The use of popular interrogation techniques, such as the accusatory and confession-driven Reid technique on the public has raised several issues, including the matter of false confessions. When these techniques are used on vulnerable populations, the effects are amplified because of the susceptibility of said vulnerable individuals. Those who are categorized as “vulnerable” are those who are especially susceptible to being wounded or hurt in any manner (Eastwood, 2017). An individual’s susceptibility can result from temporary circumstances, such as fatigue and isolation, mental illness contributing to lack of reality in statements, cognitive deficits and intellectual disabilities, and one’s age (Kassin et al., 2010). In a study conducted by Drizin and Leo (2004), one hundred twenty-five interrogation-induced false confessions were analyzed. It was determined that juveniles encompassed approximately thirty-three percent of proven false confessions. In addition, fifty-five percent of the analyzed sample was composed of youth aged fifteen and under (Leo and Drizin, 2004). Evidently, youth in this...
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...Robbery case study I have chosen to write about the robbery case. The synopsis of the case is: Two people, after conducting some surveillance on a small shoe store robbed a man while he was transporting money from his business to the bank. The two people later identified as Bertha Bloutt and William Bloutt, used the ruse of a broken down vehicle to get the victim to stop to render assistance at which time the robbed him at gun point. The usual process that these two offenders would go through is known as the criminal justice process. The criminal justice system is comprised of three major institutions which process a case from inception, through trial, to punishment. A case begins with law enforcement officials, who investigate a crime and gather evidence to identify and use against the presumed perpetrator. The case continues with the court system, which weighs the evidence to determine if the defendant is guilty beyond a reasonable doubt. If so, the corrections system will use the means at their disposal, namely incarceration and probation, to punish and correct the behavior of the offender. Throughout each stage of the process, constitutional protections exist to ensure that the rights of the accused and convicted are respected. These protections balance the need of the criminal justice system to investigate and prosecute criminals with the fundamental rights of the accused (who are presumed innocent). Though a number of rights derived from the Constitution protect the...
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...see The Innocent Man (TV series). The Innocent Man | | Author(s) | John Grisham | Country | United States | Publisher | Doubleday | Publication date | October 10, 2006 | Pages | 368 | ISBN | 978-0-385-51723-2 | OCLC Number | 70251230 | The Innocent Man: Murder and Injustice in a Small Town (2006) is a nonfiction book written by John Grisham, and his first outside the legal fiction genre. The book tells the story of Ronald 'Ron' Keith Williamson of Ada, Oklahoma, a former minor league baseball player who was wrongly convicted in 1988 for the rape and murder of Debra Sue Carter in Ada and was sentenced to death. After serving 11 years on death row, he was exonerated by DNA evidence and other material introduced by the Innocence Project and was released in 1999. Contents * 1 Synopsis * 2 Book edition * 3 References * 4 External links | Synopsis Ron Williamson has returned to his hometown of Ada, Oklahoma after multiple failed attempts to play for various minor league baseball teams, including the Fort Lauderdale Yankees and two farm teams owned by the Oakland A's. An elbow injury inhibited his chances to progress. His big dreams were not enough to overcome the odds (less than 10 percent) of making it to a big league game. His failures lead to, or aggravate, his depression and problem drinking.[1] Early in the morning of December 8, 1982, the body of Debra Sue Carter, a 21-year-old cocktail waitress, was found in the bedroom of her garage apartment...
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...Introduction Would you ever admit to committing a crime that you didn’t actually commit? Of course not, says common sense. Naturally, it is difficult to understand why anyone would confess to a crime they didn’t commit. However, false confessions are one the leading causes of wrongful convictions.1 As the Supreme Court of Canada noted in R v. Oickle, innocent people are induced to make false confessions more frequently than those unacquainted with the phenomenon might expect.2 In North America, we can trace the existence of false confessions back to the Salem Witch Trials, where a number of women were persecuted for witchcraft on the basis of confessions that were obtained through torture and threats.3 More recent false confessions have been obtained under psychological duress and not with torture or threats of physical harm.4 Nevertheless, with the developments in law and policies in place to control interrogation methods, false confessions continue to persist.5 This begs the question, are interrogation methods solely responsible for false confessions, or does some of the responsibility fall on the confessor? Scholars and social scientists agree, that it is not solely harsh interrogation tactics that lead to false confessions but it is the combination of these tactics with psychological factors such as, intelligence and personality, which contribute to the likelihood of a suspect providing a false confession.6 While there are currently solutions for avoiding false confessions...
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