Arrest

Booking Initial Appearance

ARREST, FORMAL CHARGES, AND FIRST APPEARANCE

Crimes are classify in two categories

1. Felonies: are the most serious crimes. Some examples of felonies are: Kidnapping, murder, rape. Most

of the states as well as the Federal Government have established that felonies carry a sentence of death,

or imprisonment of more than one year.

2. Misdemeanors: is a minor wrong doing, a minor offense. It is punished with a sentence of less than one

year of imprisonment.

Arrest

According to the fourth Amendment of the United States of America's Constitution “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”. (The words in bold

are proper)

The arrest can be defined as “When a person is taken into custody for the purpose of commencing a criminal

action”.1 A police officer has to have a reasonable belief, known as probable cause that is the suspicion that a

person committed a crime, is not only a suspicion but the existence of “the facts and circumstances within the

[officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to

warrant a man [sic] of reasonable caution in belief that an offense has been or is being committed”. 2

The probable cause is fulfilled when there is an affidavit or a testimony containing facts or circumstances that

will lead a person to a reasonable conclusion.

Is important to establish that a valid arrest can occur without a warrant, generally there’s no need for a warrant to

make an arrest, because of the exceptions permitted by law; to mention some3:

1 KAPLAN, PMBR. “Kaplan PMBR Finals: Criminal Procedure: Core Concepts and Key Questions”. Kaplan Publishing. United States of America. 2009. Page 1.

2 BURNHAM, William “Introduction to the Law and Legal System of the United States”. West Pusblisher. 5th Edition. United States of America. 2011. Page. 270.

3 KAPLAN, PMBR. “Kaplan PMBR Finals: Criminal Procedure: Core Concepts and Key Questions”. Kaplan Publishing. United States of America. 2009. Page 20.

1. Search incident to a lawful arrest: when the police is trying to protect the evidence.

2. Stop and Frisk: when there is suspicion that the defendant is armed.

3. Plain View: the doctrine establishes that the police must have a broad vision of the situation and the

evidence must incriminate a person.

4. Automobile exception: if there is a probable cause to stop and search a car, it justifies the whole search

of every part of it.

5. Consent: is when the defendant agrees with the arrest.

6. Hot pursuit: the pursuing is commenced by the police when probable causes concluded, that an

individual is dangerous.

7. Exigent circumstances: it is seen as protection of evidence.

After an arrest is made, a higher police officer with the help of the prosecutor will determine if the evidence is

sufficient to accuse the defendant with the charges of the corresponding crime. “In some jurisdictions, police

decide not to file charges in 10 to 15% of their arrests, most of them misdemeanors. After the police file the

charges, the prosecutor reviews them. The prosecutor generally decides not to continue the case in 30 to 50% of

felony charges”.4 The actions of the police officers are independent which means that they are not under the

supervision of the prosecutor, however they have to demonstrate the arrests before the prosecutor creates the

case in criminal courts.

Formal Charges

“These charges are allegations of the specific crimes for which the defendant will stand trial”. 5 Formal charges

are different from arrest charges, the formal charges is the criminal code applied to the specific case, facts and

circumstances, and the formal charges are made by the prosecutor. For instance, a police may arrest someone for

first degree murder, but the prosecutor may accused the defendant for manslaughter. Also, the police “tend to be

“backward looking” in attempting to justify an arrest, whereas the prosecutor is “forward looking” in attempting

to predict the likelihood of successful prosecution”.6

There are two ways to file formal charges:

1. Indictment by the grand jury:

4 BURNHAM, William “Introduction to the Law and Legal System of the United States”. West Publisher. 5th Edition. United States of America. 2011. Page. 270.5 TRAVIS III. Lawrence F. “Introduction to Criminal Justice” Publisher Elsevier. Printed in the United States of America. 2011. Page 224.6 LOC CIT.

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The grand jury is a group of citizens that reunites to review if the evidence is sufficient to continue the

proceedings, so there can be a justifiable trial. In the case United States v. R. Enterprises the Supreme Court said

“A grand jury may compel the production of evidence of the testimony of witnesses as it considers appropriate,

and its operation is unrestrained by the technical procedural and evidentiary rules governing the conduct of

criminal trials”. To illustrate this, the grand jury is authorized to cast subpoenas to witnesses, or even defendants.

The most three common cases in which the grand jury will investigate is: I. Organized criminal cases; II.

Political cases; and III. Abuse of private corporate power cases.

2. Information process:

The defendant and his attorney are able to be present to review all the evidence. For instance they can be present

for a witness’ declaration.

The decision of which system is to be electing depends on the jurisdiction, and sometimes on the discretion of

the prosecutor, who may decided which process will be followed.

The above concept is called prosecutorial discretion, and refers that the prosecutor may or may not dismiss a

case even if there is sufficient evidence, removing charges before the final judging and sentencing.

What happens if the prosecutor authorizes the charges? A complaint is filed in court so it’s the turn of the judge

to examine the case from the beginning, since the police reports and complaint. “The complaint operates as the

initial charging instrument. In a misdemeanor case, the complaint serves as the charging instrument throughout

the proceedings. In a felony case, and indictment or information replaces the complaint”. 7

First Appearance

The first appearance is the phase in which the defendant stands before a judge or magistrate. The final objectives

of the first appearance are:

To guarantee that there is a concordance between the person who is being arrested and the individual

appointed in the complaint.

To explain the defendant his/hers rights during the proceedings, for example: the right to be assisted by

lawyer.

To decide if the defendant will be release on bail until the trial arrives, release on bail is known as a

“bond amount that the defendant must pay to secure release”.8 The decision on how much does the

defendant has to pay lies on the judge or magistrate, whom may decide the full bail or a portion of it in

relation of the case, the factors of the offense, and financial circumstances of the defendant.

There are three ways of non financial release7 BURNHAM, William “Introduction to the Law and Legal System of the United States”. West Publisher. 5th Edition. United States of America. 2011. Page. 272.

8 LOC CIT. 3

1. Release on recognition: in which the defendant recognizes the obligation to present himself/herself for

future hearings.

2. Conditional release: the defendant has to perform some activities while the release, such as: drug test.

3. Unsecured bail: In this way, if the defendant do not presents himself in a future's hearing, he’s comply to

pay the total amount of the bail.

Nowadays, the courts use the electronic tether, an electronic device that shows where the defendant is, warning

the police of every movement the defendant makes and his intentions on manipulating the device. “In 2002, 34%

of state felony defendants were granted financial release and 28% were released on non- financial; 32% could

not meet their bail conditions and 6% were denied bail. Of those released, 78% appeared at all later court dates

and 22% did not. Of the 22%, 16% eventually returned to court while 6% remained at large a year later”.9

Comparison in Common Law and Civil Law

Comparison Common Law Civil Law

Arrest 1. The arrest can occurred when the probable cause is fulfilled, that is when the police believe that a suspect committed a crime.

2. A valid arrest can also occur with or without a warrant; there are some exceptions to make a valid arrest without a warrant.

1. The arrest only occurs when there is a warrant issued by judge.

2. An arrest without a warrant can only happened when there is a flagrante delicto.

Formal Charges 1. After a crime has been reported the police investigate the facts of the crime. “When the police learn of the alleged commission of a crime, they will begin to investigate immediately”.10

2. The police can interview witnesses, victims or even the defendant.

3. The formal charges are made by the grand jury if the crime is considered as a felony, after the study, and examination of evidence the Grand Jury can institute its Indictment

4. If the offense is considered as a

1. Once a crime has been announced, the prosecutor begins the investigation.

2. Usually the witnesses, victims and defendant will be called to trial to bear their statements.

3. The formal charges, known as the Indictment, are made by the Prosecutor, after the expiration of the probationary period in which the prosecutor agents and prosecutor himself investigated the crime. The indictment will “describe the acts committed by the suspect, and outline the applicable law and evidence

9 LOC CIT. Page 273.

10 O’Connor, Vivienne. “Practitioner’s Guide Common Law and Civil Traditions”. International network to promote the rule of law. March 2012. Page. 26

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misdemeanor the police can establish the formal charges.

upon which the accusation rests”.11

First Appearance 1. The first appearance is in presence of the judge or magistrate, in most cases is the stage where the defendant names his/hers lawyer. The judge explains the defendant his/hers rights and the judges’ decision if there will be a release on bail until the trial arrives.

1. The first appearance is in presence of the judge, the judge explains the defendant his/hers rights, and the defendant can bear his declaration. The first appearance’s purpose is to establish if there is relation between the suspect and the crime that can link him to the process.

Cases Law

1. State of Maryland vs Joseph Jermaine Pringle

2. Stack vs. Boyle

PLEA BARGAINING:

Actually the criminal law theory, determines the commission of a crime, when has occurred an specific

human conduct contained in a law, for this commission three elements are required to exist the criminal offense,

there would be; a.) a wrongful act, that is a human voluntary act, provides by a physical act or a omission, that

causes a wrongful result to other person. b.) guilty state of mind, the second element is considered in other way,

the mens rea, which is the intention to commit a crime, there are three different levels o guilty, the intention,

recklessness and negligence. c.) causation of injury, this one is the specific result caused to a victim by the

commission of a crime; this fact determines the level of defendant responsibility. Because depending of the

seriousness of the crime committed, will be the responsibility of the criminal.

Otherwise criminal law, qualify the level of the responsibility of a criminal, because the crime can be classified

in different stairs, obviously a murder cannot be treated the same way as a weapon illegal porting, that’s the

reason of a plea bargaining figure, common law establish this option for defendants that commit a criminal act

figured in the less severity crimes, this kind of acts gives the opportunity to the defendant to declares the

confession of the act committed, exchanging by a considerable less penalty. However, to understand this figure

is necessary to attend the literal meaning, that is “Agreement between a prosecutor and a defendant whereby the

defendant is allowed to plead guilty to a lesser charge rather than risk conviction for a graver crime in order to

avoid a protracted trial or to win the defendant's cooperation as a witness”12. Understanding a plea bargaining

11 LOC CIT. Page 28.

12 www.dictionary.com: http://ask.reference.com/web?s=t&q=plea%20barganing&l=dir&qsrc=2891&o=10616 03/10/13 11:10 pm

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as a benefit for thedefendant, reward of the courage act of recognizes his responsibility. Other important point of

this definition is the agreement between the prosecutor and the defendant, because this is an essential

requirement for the plea bargaining, because the persecutor has to be agree with the application of this solution

and more than this have to approve this way to solve the criminal persecution.

In the same way, the author Willian Burnham defines the plea bargaining as a “is an agreement by which the

defendant agrees to plead guilty in return for either a reduction in the charge or some some special dispensation

regarding the sentence. The advantage from the defendants position is clear: the disposition of the case is made

more certain and usually more lenient than if the defendant went to a trial.”13 The reductions provide can be up

to one third less than the original charge, this partial absolution of the charges derived of the recognition of the

responsibility, this declaration gives the defendant the opportunity of negotiation between the defendant and the

persecutor and the state, about his charges and his responsibility in a crime committed.

This figure have a specific goal, that is avoid saturation of process in the justice system, saving possible

expenses and many loss of time, in the other hand the state can solve criminal process based on less serious

crimes without a trial, saving in that way resources. That point of view is shared by this author, that establish:

“the advantage of the plea bargaining for the persecutor and the court is that the plea agreement saves time a

resources because once defendant pleads guilty, there is no need of a trial.”14

However the advantages raised, this way to solve criminal process have many other deficient points, that have to

be considered to the application of this figure, because this way to solve process represent the most part of the

cases solved in common law, nevertheless this deficiencies are present and appears in many cases where the plea

bargaining was applied. Those particular points can be:

a.) an innocent person who is accused of the commission of a crime, can declare a fake confession

exchanging a short charge by a possible worse penalty in a process.

b.) the habitual criminals can receive a soft treatment for the commission of a crime and they could be

out of jail in a pretty short time.

For this reasons the plea bargaining has many criticisms, this posture in shared by social groups, this author

establish “plea bargaining has come under considerable attack. Some critics feel that plea bargaining in too

lenient on the criminal. Others fear that it induces defendants who may be innocent or have a defense to the

charge to plead guilty anyway for fear that they might nonetheless be convicted at trial. But a series of U.S.

Supreme Court rulings has upheld plea bargaining as a constitutional. Plea bargaining, it has declared, “is an

essential component of the administration of justice” and, “properly administered, it is to be encouraged”. 15

13 BURNHAM, WILLIAM, Introduction to the Law and Legal System of the United States, pag. 28114 BURNHAM, WILLIAM, Introduction to the Law and Legal System of the United States, pag. 28115 BURNHAM, WILLIAM, Introduction to the Law and Legal System of the United States, pag. 282

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Regardless of this important thing, plea bargaining is applied day by day in common law as a way to solve

criminal process.

Spite of these deficiencies, the plea bargaining figure represent many benefits for the administration of justice

and the defendants, these benefits would be:

a.) Celerity: a plea bargaining provides, a very quick way to solve a criminal process, because the duration

of a normal trial could be months or maybe years, plus a lot of tension for the parties and expenses in a

legal assessor for the defense, all of this things can be saved by a plea bargaining that during in many

cases, just minutes.

b.) Decrease of charges: the charges attributed to a criminal can be less serious than the original charges,

giving de defendant a better image, because the charges consigned in his criminal files will be less

severe.

c.) Reduction of the penalty: when a defendant admits the commission of a crime, he could reduce the

penalty of the crime on up to third part of the original penalty.

d.) Avoid legal management: many criminals use the plea bargaining to avoid the task to find a legal

assessor for a trail, avoiding in the same way the discomfort to established a strategy for the defense and

more than this the expenses resulting by a trail.

e.) Avoid the publicity of the process: another important thing in that many people use a plea bargaining as

a non publicity way to fix their penal position, maintained their penal responsibility in a secret.

In the same way, is important to determine the role of the judge in plea bargaining, because the judge is always

the representative of the administration of justice and more than this, the judge need to have many important

reasons to approve the constant application of plea bargaining in common law. But the important thing in the

role of the judge in a plea bargaining is the no participation of the judge. In a charge bargaining or a sentence

bargaining, the participation of the judge is indispensable, because he have to be informed of this, before a guilty

plea take a place in the criminal process. In the other hand in a plea bargaining the judge don’t take an important

part in the process, because the most important thing here, in the negotiation between the persecutor and the

defendant giving to those parties all the conditions to negotiate and get an agreement. “The judge does not

usually become involved in the plea bargaining discussions and most often allows the persecutor and defendant

to reach will dispose of the case”16.

These are some of the characteristics of the plea bargaining in common law, explaining these elements in a very

general form, concentrated in the pros and cons derived of a figure like this.

1. Comparison between plea bargaining with a equivalent in civil law:

16 BURNHAM, WILLIAM, Introduction to the Law and Legal System of the United States, pag. 2817

Now I will try to compare the plea bargaining against the equivalent in civil law, but this could be difficult,

because civil law doesn’t have a specific figure like this. The principal rule that governs the civil law is the

contradiction rule, this rule determines that each parties of the process have to contribute with the evidence to

support their strategy and position in a trail, and the most important thing is that the evidence has to contradict

the position of the opponent who are confronting in the trial. That’s totally the opposite in common law,

sometimes the plea bargaining is called the non contradiction rule, where the partiers negotiate a middle point,

obtaining a solution for the dispute, avoiding a possible future trial. For this specific reason, I considered that

civil law doesn’t have a specific figure like plea bargaining.

For sample in civil law, when a defendant confesses the commission of a crime, this declaration is integrate in

the trial taking a place as a evidence, and the trial continues taking this evidence as element to decrease the

duration of the penalty, but the defendant never get the total absolution of a crime, he have to be punished for the

acts committed.

After this distention, the conclusion is that civil law doesn’t have a figure like plea bargaining, however civil law

has a term that similar from plea bargaining, this figure is called in Spanish “procedimiento abreviado”, this

determines that a person who commit a crime can opiate for a procedimiento abreviado as well as possible the

crime committed can be framing in that the penal law call a less gravity crimes. Crimes that are considered as

that kind, because the penalty for a person who to do a less gravity crime, is less than few years (five years in

Guatemala for example). With a procedimiento abreviado the responsible of a crime, can get a resolution of a

judge in less time than a normal trial, because all the phases of the process are quickly. Nevertheless a big

difference between this term a plea bargaining is absent, this difference is that in a procedimiento abreviado the

person who commit the crime is always the responsible of the crime, who is condemned to comply a punish that

it would be jail or a monetary fine.

Another term that is similar to a plea bargaining in civil law is the figure that is called “criterio de oportunidad”,

this figure suppose that the institution charged to execute the penal persecution by the state, have the option to

refrain the penal persecution, when the crime committed is not typify with a penalty of jail, when the crime

committed don’t constitute an public action crime or well the crime committed have a penalty less than five

years of jail. The application of this figure is always considered in cases where the public interest o citizen’s

security could be threatened. For example the penal process code establish: ARTÍCULO

25.- Criterio de oportunidad. “…Cuando el Ministerio Público considere que el interés público o la seguridad

ciudadana no están gravemente afectados o amenazados, previo consentimiento del agraviado y autorización

judicial, podrá abstenerse de ejercitar la acción penal en los casos siguientes: 1) Si se tratare de delitos no

sancionados con pena de prisión;2) Si se tratare de delitos perseguibles por instancia particular; 3) En los

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delitos de acción pública, cuya pena máxima de prisión no fuere superior a cinco años con excepción de los

delitos tipificados en la Ley contra la Narcoactividad…”17

2. Examples of common law:

- North carolia vrs. Alford:

- Puckett vrs United States 2009:

SEARCH & SEIZURE

Amendment IV“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.”18

In the British colonies this amendment becomes part of several cases that give place to the right of a person to

protect his house and properties against the unlawful entry of the Kings militaries. Also recognized the authority

of the Kings government to entry a house with a previous notice to arrest someone or execute the Kings

procedures. One of the famous cases was Semayne´s case that make the maxim “Every man´s house is his stle”

famous in England and also Entick v. Carrington case. 19

This amendment is part of the famous Bill of Rights of the United States Constitution, and it appears to protect

people from the abuse of authority of the police or any other power of the State to violate their privacy and their

property. The fourth amendment born and it was first introduced in the Congress of the U.S.A. in 1789. Later in

1789 on September 28, this amendment was submitted to all the states of the United States. It was ratified on

December 15 in 1791 when the votes of the necessary states confirm the adoption of the fourth amendment to be

applied in all the country.

Because of the introduction of this amendment in the Constitution of the United States, the right of the

government and their officers to search and seizure become limited by the requirement to the need of law

enforcement of a competent authority to make an intrusion onto private property. But also the Supreme Court

17 CODIGO PROCESAL PENAL, GUATEMALA. Art. 2518 Amendment Four Constitution of the United States of America. 19 PDF Document “Fourth Amendment” Authenticated by th U.S. Government GPO. Semayne´s case. ‘‘The poorest man may in his cottage bid defiance to all the force of the crown. It may be frail its roof may shake—the wind may blow through it—the storm may enter, the rain may enter—but the King of England cannot enter—all his force dares not cross the threshold of the ruined tenement.’’ Entick v. Carrington case. “Entick, an associate of Wilkes, sued because agents had forcibly broken into his house, broken into locked desks and boxes, and seized many printed charts, pamphlets and the like. In an opinion sweeping in terms, the court declared the warrant and the behavior it authorized subversive ‘‘of all the comforts of society,’’ and the issuance of a warrant for the seizure of all of a person’s papers rather than only those alleged to be criminal in nature ‘‘contrary to the genius of the law of England.’’

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with the Katz v. United States case20 declares a series of exceptions to this requirement when the search and

seizure refers to:

Consent searches

Motor vehicle searches

Evidence in plain view

Exigent circumstances

Border searches

The fourth amendment also refers to a rule that is recognized by the name: Exclusionary Rule. What this rule

tries to prevent is to not consider evidence that was obtained through a violation of the fourth amendment

admissible to a criminal process.

There has to be two issues to consider when the police exercise his power to investigate, to become a

constitutional or an unconstitutional search and seizure, and those issues are:

- If the action constitute a search or a seizure?

- Whether the necessary judicial approval was obtained under the rules by which a warrant should be

obtained?

Meaning of “Search”

According to the Oxford dictionary search means: “try to find something by looking or otherwise seeking

carefully and thoroughly”.21 Also according to a legal dictionary Search is: “The act to examine another's

premises (including a vehicle) to look for evidence of criminal activity. It is unconstitutional under the 4th and

14th Amendments for law enforcement officers to conduct a search without a "search warrant" issued by a judge

or without facts which give the officer "probable cause" to believe evidence of a specific crime is on the premises

and there is not enough time to obtain a search warrant.”22

The violation of the fourth amendment occurs when a government employee violates a reasonable expectation of

privacy. There could not be an “expectation of privacy” in the next situations:

1. Open fields is the outside areas in where there is no scope of protection of this amendment.

20 Katz Case v. United States. Charles Katz used a public pay phone booth to transmit illegal gambling wagers from Los Angeles to Miami and Boston. The FBI use this recordings to convict him and he claimed that it violate his right of the fourth amendment. The Court said that there was no physical penetration of any constitutional protected area. But Mr. Katz have a reasonable expectation that his conversation would be private so this becomes a search and the police should submit an application of a warrant to approve this search. ORACLE Education Foundation, website was consulted: http://library.thinkquest.org/2760/cases.htm21 OXFORD UNIVERSITY PRESS, website was consulted: http://oxforddictionaries.com/definition/english/search22 Farlex Inc. 2013, website was consulted: http://legal-dictionary.thefreedictionary.com/search

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2. When the person exposes information or does something that allows the public to know the information

that held private.

3. Does not protect bank records or garbage set out for collection.

4. Plain view, does not protect when the police can see an illegal action or object in a place they have the

right to be, like the view of a police helicopter.

5. Also the police do not have to justify the investigation when they use a drug dog that is trained for that

specific task.

6. When a person gives his consent to make a search doesn´t constitute a violation of the fourth

amendment.

Meaning of “Seizure”

According to the legal dictionary Seizure means: “a seizure is the forcible taking of property by a government

law enforcement official from a person who is suspected of violating, or is known to have violated, the law.

A Search Warrant usually must be presented to the person before his property is seized, unless the circumstances

of the seizure justify a warrantless Search and Seizure.”23

A seizure occurs when the police interfere with an individual possessory interest in property, it also must have

had an expectation of privacy with the object that pretend to be seized. To have the expectation of privacy this

must have the subjective requires that means there exists the claimant of privacy. Also the objective requires that

refers to the circumstances that if a person in a similar situation would have expected privacy at that moment.

The reasonableness of a search and seizure

There must be legal reasons to search and seizure the privacy and property of an individual, this means that there

has to be a “probable cause” and also a warrant that approve to search and seizure in which has to be identify the

place that can be search and the items to be seized. Probable Cause means that the judge or magistrate had the

information that was trustful and worthy to consider particular evidence will be found in a specific place. In the

warrants needed to permit a search there is different types:

1. Searches with probable cause and warrant

When there is a search outside a judicial process and there is no warrant approving it, is a manifest

unreasonable search. It is important to understand that the reasonable clause and the warrant clause

are linked, that´s why it cannot be allowed to search and seizure unless it exist a probable cause

supported by an oath or affirmation identifying the place ant items that should be search and seizure.

23 Farlex Inc. 2013, website was consulted: http://legal-dictionary.thefreedictionary.com/seizure

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It exist a warrant procedure that has to be follow in order to have a lawful warrant.

24

2. Searches with probable cause and without a warrant

This type of search refers when the police have an emergency situation ant it was impossible to get a

warrant. For these situations there must be exigent circumstances in which the situation turns

difficult to submit an application for a warrant. In these cases is always job of the trial to analyze and

review if there really was an emergency situation.

3. Searches without warrant and probable cause

It is when the police is entitled to search with non-investigatory reasons and the conduct of a person

claims to be contrary the provisions of the law. Also the police may search and seize when there is a

lawful arrest, because of the protection of themselves and the rest of the people in the area of the

24 OXFORD UNIVERSITY PRESS Answers Corporation, website was consulted: http://www.answers.com/topic/amendment-iv-to-the-u-s-constitution#ixzz2heoqkxXp

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Police have to submit aplication for warrant to a

judicial officer

Judicial officer must qualify as a neutral and detached

magistrate

Warrant: - place

- persons - things

Affidavit (statement made under penalty of perjury) Explain circumstances of

probable cause

arrest. The items that can be seize in this situation should have probable cause to believe that those

can be evidence of the crime committed.

Executing Searches

There are two types of the execution of Searches:

Knock and Announce

Is when the police have a warrant to do the legal search, so they have to knock the door of the residence

and announce they presence.

No knock

It is when a police officer is allow to enter a place without an announcement, this occurs in the cases

when it exists the possibility that the person inside destroy the evidence before the search.

Differences Civil Law and Common Law

In both systems the government has the authority to search and seizure with a warrant that has been obtained by

a legal procedure. Also in the civil law it is necessary the permission of the owner to enter a house that is use for

housing. The warrant procedure in the civil law has to be submitting to an entitled judge then he pronounces

with a warrant if he considers the reasons are valid enough for the search.

Cases

California v. Greenwood 6-2 Vote May 16, 1988

Chimel v. California 6-3 Vote June 23, 1969

THE LAW OF CONFESSIONS

The confession should be voluntary, essentially free and unconstrained. The self -incrimination is described in

the 5th amendment said nobody “shall be compelled in any criminal case to be a witness against himself “25. The

constitution prohibits involuntary confession.

25 US Constitution. 13

“The court must examine the totality of all the surrounding circumstances both the characteristics of the accused

and details of the interrogation.“ 26

Then the court should examine coercive conduct by police in the moment of get confession and must exclude the

coerced confession if exist physical brutality such: a beating, deprivation of food, water, or sleep, or threats of

violence, extended periods of incommunicado interrogation. This is important examine because “physical torture

can induce persons falsely to accuse themselves, a substantial risk of unreliability is evident.“ 27 Nowadays the

confession is unreliable, but for police investigation the confession is as queen evidence.

Due process requires that a jury not hear a confession before the judge determines in the pretrial that the

confession was voluntary. The jury “will decide to what extent to believe the confession“28. For this reason it

makes diference between admissibility and weight of the confession as evidence. Admissibility is determined by

the judge, considers if the confession is voluntary and the weight is determined by jury considers the probative

value of the confession.

Exist the Miranda Warnings, that is decision Supreme Court in the case Miranda vs Arizona in which said that

protection against interrogation was insufficient and that involuntary confessions are usually obtained.

Recognizing that self-incrimination and certain rights should not be violated, so police must warn to suspects of

their rights. In sometime the police reads a suspect their right or usually used the following sentence: “you have

the right to remain silent. Anything you say can and will be used against you in a court of law. You have the

right to consult an attorney and have an attorney with you during questioning. If you cannot afford an attorney,

one will be appointed for you“ 29

The most important thing is to warn the suspect reasonably and sustancial their rights, no matter how the police

officer warned a suspect because they do not required to use the phrase prior written.

26 William Burnham. Introduction to the Law and Legal System of the United States. P. 299

27 Joseph D. Grano. Confessions, Truth and the Law. Michigan. 1996. P. 24.

28 William Burnham .

29 William Burnham. 14

Also the suspect can waiver the right to remain silent and the right to have attorney present during interrogation,

but this decision must be voluntary and conscious.

The suspect may waiver of the right to remain silent still valid, only if prior to interrogation know their rights

and the Miranda warning. In any case the police officer`s indicate suspect waiver of the right to remain silent,

but the police officer use their skills to get a involuntary waiver of the suspects or not said a suspect their right.

However the suspect have the right to remain silent even if prior waiver of the right, because in “any time prior

or during the interrogation the suspect can express their wish of remain silent and for this the reason must cease

the interrogation.”30

Other reason for ceases the interrogation is “if the suspect indicates a desire to speak to a lawyer, the

interrogation must cease until a lawyer is present. If the suspect consult with a lawyer, the police may not

reinitiate interrogation without the lawyer present.“ 31

“The Miranda warning are required only if there is custodial interrogation. This is defined as 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.”32 This is different in the case that the person not under arrest, because

the suspect is free to leave or ask the police to leave, there is less likelihood that the suspect suffers some abuse

because they have no control over him.

Miranda exceptions:

Supreme Court created exceptions to the Miranda warning requirement, recognized a public safety exception in

the case “New york vs. Quarles in that case, police had informed that a rapist had fled into grocery store armed

with a weapon, when police frisked him, found his holster empty, the officer asked where the gun was and the

defendant indicated its location”33. In this case is not considered violated the Miranda warning, because the

interrogation was guided to protection a public safety that means this action is danger for society.

30 William Burnham. P. 300

31 William Burnham.

32 William Burnham.

33 William Burnham. P.301. 15

Other exception is covert custodial interrogation, recognized exception in the case “Illinois vs. Perkins in that

case, an undercover police officer was placed in a jail cell with the defendant and have conversation with the

defendant in whom the defendant made incriminating statement”34. In this case is not considered violated the

Miranda warning, because the confession in this specific case is voluntary and not coercive. The police officer

not uses torture or any physical brutality for gets confession. This exception given usually when the suspect not

knows that is speaking with police officer.

Comparison of the application of the said subject in Common Law and Civil Law or criminal procedure

Civil Law:

In system of civil law indicates the subject of confession law in the Constitution, as procedure beginning from

legal detention, describe in article six that mention ” no person may be detained or arrested, but will be arrested

if make a crime or exist a judicial order, those arrested must be made available to the competent judicial

authority within a period not exceeding six hours and not be able to be subject to another authority.”35 Whereas

when given the detention will continue with the questioning, as in common law in which the Miranda warning is

required when arrested to suspect and starts the interrogation. Exist the prerequisite to require Miranda warning

is that the suspect be in custody.

Is similar in common law indicate the right to suspect when suspect was arrested, being a prerequisite to

interrogation, detention, because at the time of arrest can to give abuse from officer police to the right of the

suspect because the police want to get evidence, but the judge can observe whether the detainees have suffered

some abuse which obtained involuntary confession. The civil law also protects the rights of the suspect when he

was arrested as a result to prevent abuse and involuntary confessions.

The most important article is the eight that mention “all those arrested should be immediately informed of their

rights in a way that is understandable, also indicate that it may have an attorney who may be present at all police

and court proceedings. The arrested should not be compelled to confession but can confess before competent

34 William Burnham.

35 Constitution Guatemala. 16

judicial authority.”36 This is a difference with a common law because in civil law, confession make before

competent judicial authority not is same in common law that confession make before police officer. And other

difference is that in civil law not use an specific sentence from warning of their right, only explain the right in

a way that is understandable as quickly as possible. Similar in common law the explain the right to suspect

inmediately.

In the article nine of the Constitution mention “judicial authorities are the only competent to interrogate

detainees or prisoners. This hearing should take place within a period not exceeding twenty-four hours.”37

In this prior written article shows another difference, because in the common law is interrogate without a

specific term, but in civil law exist a term that may be interrogated the arrested.

In the article sixteen of the Constitution mention the statement against or relatives and indicate that no person is

compelled to confession against himself, against his husband or her wife or against relatives.

This is other difference because in the common law in the 5th amendment mention the prohibit self –

incrimination in which indicate that any person shall be compelled to be a witness against himself but not

mention against relatives or his husband or her wife. In the civil law not given self-incrimination and also not

permit confession against relatives.

Two examples of the case law explaining the specific subject in criminal law or criminal procedure

The case Brown vs Mississippi this is the first case to prohibit the use of a confession in a state court, because

the police brutally beat suspects. Summary of the case: “two individuals were convicted of murder, the only

evidence of which was their own confessions that were procured after violent interrogation.

The arrested appealed to the Supreme Court of Mississippi arguing that their Fourteenth Amendment rights were

violated. The Supreme Court of Mississippi affirmed the trial court’s judgment, concluded “(1) that immunity

from self- incrimination is not essential to due process of law; and (2) that the failure of the trial court to exclude

36 Constitution Guatemala.

37 Constitution Guatemala. 17

the confessions after the introduction of evidence showing their incompetency, in the absence of a request for

such exclusion, did not deprive the defendants of life or liberty without due process of law.

The state’s highest court also observed “after the state closed its case on the merits, the appellants, for the first

time, introduced evidence from which it appears that the confessions were not made voluntarily but were

coerced. The majority observed, the trial court was fully advised by the undisputed evidence of the way in which

the confessions had been procured. The trial court knew that there was no other evidence upon which conviction

and sentence could be based. Yet it proceeded to permit conviction and to pronounce sentence. The conviction

and sentence were void for want of the essential elements of due process, and the proceeding thus vitiated could

be challenged in any appropriate manner.”38

In this case the resolution of the trial violated the 5 th amendment because the trial admits the confession, which

knows that it was procured by the coercion and allow the self–incrimination, when it is forbidden by the

constitution. Also not observe the features to have a confession, because the confession must be voluntary,

essencially free and unconstrained. Finally be considered as physical torture may induce people to falsely

accuse themselves, which creates a lack of reliability as noted previously.

The case Florida vs Powell in in this case must observed the subject about advice of the right to talk to a lawyer

before answering any of police question, and that he can invoke this right at any time during police interview,

satisfies Miranda warning. This case is popular and important because recognize Miranda warning and indicate

that right not vary. Summary of the case: “In this case, Mr. Powell was being charged with being a felon in

possession of a firearm.  He was arrested and questioned by the police.  But before he was questioned he was

read his Miranda rights.  However, the officers said You have the right to talk to a lawyer before answering any

of our questions and you have the right to use any of these rights at any time you want during the interview . Mr.

Powell did not invoke his right to talk to an attorney and made some statements to the officers that helped to

convict him. On appeal, Mr. Powell argued that his rights were violated because the officers failed to inform him

that he also had the right to have an attorney present during the interrogation. The Supreme Court accepted the

case, and (as we have seen in the past) used this opportunity to remind the courts that the exact language of the

Miranda warning is not set in stone.  Miranda requires that the individual be informed of their rights, but it

doesn't give explicit language. The Supreme Court held that because Mr. Powell was told that he had the right to

talk to a lawyer before being questioned, and could invoke that right at any time during the questioning, it

was equivalent to telling Mr. Powell that he had the right to have an attorney present during questioning. In this

38 http://www.casebriefs.com/blog/law/criminal-procedure/criminal-procedure-keyed-to-weinreb/the-privilege-against-self-

incrimination/brown-v-mississippi/

18

case demonstrate that Miranda warning are not ignored or weakens, but in this case reaffirms the fact that the

officers don't have to provide a specific monologue.”39

In this case the resolution of the trial recognize the Miranda right and said the most important is explain to

suspect their right no matter how it is disclosed, this is important because is intended that the detainee

understands their rights and do not violate or abuse of the rights. Is not necessary to use the famous phrase that

advises the suspect of his rights, usually seen in TV programs. No matter in what order they may make known

the suspect their rights, but what if it is important to take into consideration is that when given to know their

rights should be performed in a transparent manner, in a language that is not complicated and for easy

comprehension.

Finally it is important to understand the suspect their rights to prevent a violation of the 5th amendment self-

incrimination because Constitution prohibits an involuntary confession against himself and at the same time is

protected from physical abuse used by police to obtain evidence through the confession. Also be added that in

this case should be considered to be given the four warnings from Miranda were required, in this case not said

complete the Miranda warning, and miranda rights violated because the suspect did not understand their right

and did not said all their right.

RIGHTS AT TRIAL

The Constitution of the United States recognizes a sequence of basic rights that all defendants in criminal

procedures shall enjoy. Those basic constitutional rights, guarantee the defendant a fair and impartial trial and

the achievement of justice, and also protect him from arbitrary and illegal decisions against him. This essay

pretends to briefly explain the most important rights at trial, and to compare them to its equivalent in the civil

law system.

1. Right to a Speedy Trial

39 http://www.aschemansmith.com/florida-v-powell---us-supreme-court---case-review19

The legal basis of this right is found in the 6th Amendment of the Constitution of the United States that declares

that “In all criminal prosecutions, the accused shall enjoy the right to a speedy …trial…” 40. This amendment

guarantees the right of all defendants to be judged and, condemned or released, depending on the case, as soon as

possible, in a fast and speedy way. This provision is an important safeguard to prevent undue and oppressive

incarceration prior to trial, to minimize anxiety and concern accompanying public accusation and to limit the

possibility that long delay will impair the ability of an accused to defend himself.

2. Right to a Public Trial

This guarantee is also found in the 6th Amendment which provides that “In all criminal prosecutions, the

accused shall enjoy the right to a …public trial…”41. “This is an important right, because the presence in

courtrooms of a defendant's family and friends, ordinary citizens, and the press can help ensure that the

government observes important rights associated with trials.”42 The right to a public trial mean the hearings of

the trial should as a rule, be conducted orally and publicly, without a special request by the defendant to that

effect. This right means a guarantee is not only for the defendant, but also for the general public in a democratic

society.

3. Right to a jury trial

The right trial by jury in all criminal prosecutions for all “non-petty” offenses, is guaranteed in the 6 th

Amendment. “Under this Amendment, in all criminal prosecutions, the accused criminal has the right to an

impartial jury of the state and district in which the individual allegedly committed a crime.” 43 A petty offense

is a minor crime, the maximum punishment for which is generally a fine or a short term in a prison or a house of

correction. How it has been already said, this right is only for defendants who are accused of committing non

petty offenses, which means crimes for which the potential punishment is more than 6 months. The number of

jurors on a jury has always been 12, but nowadays, in some states, it has been allowed, that a jury can be

conformed by six persons. In that case the defendant can’t be condemned if the jury isn’t unanimous.

4. Right to an Impartial Jury

This guarantee means that all defendants are entitled to be tried by juries drawn from a pool representing a fair

cross-section of the community. “The rationale of this provision is to avoid the arbitrariness and/or bias that

would potentially arise if criminal charges were to be decided on by a political body or an administrative

40 Constitution of the United States of America

41 Constitution of the United States of America

42 Taken from http://www.nolo.com/legal-encyclopedia/defendants-rights-during-court-trial-29793.html, seen on October 10

43 Taken form http://www.law.cornell.edu/wex/right_to_jury_trial, seen on October 1020

agency.”44. Personally, I believe this is one of the most important rights, because if the jury is not impartial, it

would be impossible to have fair decisions, which means there would be no real justice. It is very important to

keep in mind that the purpose of a jury is to guard against the exercise of arbitrary power, and that is possible,

only if the jury remains pure and no juror is biased.

5. Right Not to Testify

The Fifth Amendment to the United States Constitution is very clear and provides that “No person shall be held

to answer for a capital, or otherwise infamous crime… nor shall be compelled in any criminal case to be a

witness against himself…” This means that the prosecutor, the judge, and even the defendants own lawyer

cannot force the defendant to testify as a witness against his or her will. Something very important about this

guarantee is that it necessarily includes within it the right not to have that silence used against the defendant. It’s

also important to say that a defendant can waive to this right, but once he takes the witness stand, this particular

right is considered waived throughout the trial. “ A defendant who does choose to testify cannot answer some

questions but not others.”45

6. Right to Confront Accusers

The 6th Amendment gives the right to the defendant to “be confronted with the witnesses against him.” “This

guarantee consists in that the prosecution may not use any statement against the defendant, unless the defendant

had the opportunity to cross examine that witness at the time the statement was made.”46

This right is exclusively for those statements that are “testimonial”. This Amendment does not include

statements that were not made thinking in a post-incident trial. So, for example, a domestic battery victims

statement recorded in a phone call to the police, while a house robbery, can be admissible in the trial, because

the call was intended to warned the police about the emergency, not the product of post-incident police

investigation efforts. Like other rights, the right to a face to face confrontation with accusers can be considered

waived. If the defendant uses vile language or engaged in other disruptive behavior, he can be excluded from his

own trial. If so, the defendant can return to the trial anytime, if he agrees to behave himself.

7. Right to Counsel at Trial

44 Taken from http://www.humanrightsfirst.org/wp-content/uploads/pdf/fair_trial.pdf, seen on October 10

45 Taken from http://criminal.findlaw.com/criminal-rights/fifth-amendment-right-against-self-incrimination.html seen on October 10

46 Burnham, William, Introduction to the Legal System of the United States, Thomson West, 2011, page 312

21

The 6th Amendment also states that “In all criminal prosecutions, the accused shall enjoy the right…to have the

Assistance of Counsel for his defense.” This guarantee establish that a defendant enjoys of a constitutional right

to be represented by a counsel during trial. It also establish that, in the case, the defendant cannot afford to pay

an attorney, it’s the government obligation to appoint him one, to handle the case, at no cost to the defendant.

“The court held that lawyers in criminal courts are necessities, not luxuries, and that in our adversary system of

criminal justice, any person hauled into court, who is too poor to hire a lawyer, cannot be assure a fair trial

unless counsel is provided for him.”47 There has been a controversy about this specific right, is the question of

when, in the process of criminal prosecution, the defendant gains this guarantee. The Supreme Court has

determine, in the case “Brewer vs. Williams (1976) that a defendant gains the right to a counsel at trial “at or

after the time that judicial proceedings have been initiated against him, whether by formal charge, preliminary

hearing, indictment, information, or arraignment.”48 However, all defendants have the right to waive his right

and represent himself at his criminal trial. Another important fact about this right, is that it also means the right

to an effective assistance.

8. Burden of Proof

Burden proof is the obligation placed upon a party on a trial, to prove or disprove a controversial fact. It

implicates the burden of persuasion, by which the party with the burden of proof must establish or refute a

disputed factual issue. In criminal cases, this responsibility relapse on the prosecution, who has the obligation to

demonstrate that the defendant is guilty before jurors may convict him.  That means that the prosecution must

prove that the defendant is guilty, beyond a reasonable doubt. Beyond a reasonable doubt means that “ the

standard that must be met by the prosecution's evidence in a criminal prosecution: that no other logical

explanation can be derived from the facts except that the defendant committed the crime, thereby overcoming the

presumption that a person is innocent until proven guilty.”49 It has been said that if the jury have no doubt that

the defendant is guilty of committing a crime, or that if their doubts are unreasonable, than the prosecutor has

proven that the defendant is guilty, and he can be pronounced guilty and condemned.

- Other Constitutional Protections

It has to been taken in consideration that there are more rights not mentioned in the Bill of Rights. Some of the

practices prohibited in all criminal procedures, that can be considered as rights of the defendants are: defense

discovery rights, improper closing argument by the prosecutor, violation of the right to counsel at parole

revocation proceedings, prohibiting the defendant’s access to evidence, entrapment, judicial bias, and charges

motivated by prosecutorial vindictiveness.

47 Burnham, William, Introduction to the Legal System of the United States, Thomson West, 2011, page 312

48 Taken from http://www.law.cornell.edu/supct/html/historics/USSC_CR_0430_0387_ZO.html seen on October 10

49 Taken from http://legal-dictionary.thefreedictionary.com/Beyond+a+Reasonable+Doubt seen on October 1022

RIGHTS AT TRIAL IN THE CIVIL LAW SYSTEM

First of all, it’s important to establish that there are not many differences between the rights at trial of the

defendants in the common law and the rights at trial in the civil law. It is possible to say that both law systems

share the same minimum guarantees and rights that every defendant shall enjoy, in a criminal procedure.

The guatemaltecan criminal procedure code, in its article 5, provides that “ the process aims to criminal

investigation into the commission of an act constituting a crime or offense, the circumstances in which this was

committed and the accused's participation in it…” 50 The criminal process seeks the truth, and this should be

done in a quick and impartial way. That means that the criminal proceedings should be completed in the fastest

way possible, without undue delay, in order to ensure fundamental rights of the accused.

In the Civil Law system, defendants have the same guarantees as in the United States. Most of these guarantees

are established in the Constitution of the Republic of Guatemala and some others are established in the Criminal

Procedure Code. The ones that the Constitution provides are: a) right to a jury trial (article 7, but in this case, it’s

not right to a jury trial because, the civil law do not have jurors, but right to be tried by a legal judge.); b) right

not to testify (article 16, this right includes not only the right to not testify against himself, but also the right to

not to testify against his family); c) right to a counsel at trial (article 8); d) burden of proof (article 14, it’s called

presumption of innocence, which means that every person is innocent until proven guilty) and e) right to a public

trial (article 14). The rights that the Criminal Procedure Code provides are: a) right to an impartial jury (article 7,

in civil law it’s the same only that instead of an impartial jury it’s an impartial judge).

At last the right to a speedy trial is found in the article 7.5 of the American Convention on Human Rights.

Cases

- Griffin vs. California

- Davis v. Alaska

The double jeopardy guarantee

The double jeopardy guarantee is one of the oldest protections in the common law traditions and the

western civilization. It´s origins reside in Roman Law. This principle in mentioned in the Digest of

50 Criminal Procedure Code (Guatemala) Article 5.23

Justinian (533 A.C) as the precept that “the governor should not permit the same person to be again accused

of a crime of which he had been acquillet.51. It´s also a legal traditional Greco-Roman rule.

The double jeopardy guarantee is established in the 5 th Amendment to the U.S. Constitution, which declares

that “no person shall be subject for the same offence to be twice put in jeopardy of life and limb” It´s

defined as the principle that declares that a defendant cannot be retrial for the same offence. It´s part of the

constitutional guarantees, Due process and Equal Protection clauses established in the 14th Amendment.

It “(…) means that no one may be tried twice for the same crime by any state government or by the

federal government. It does not mean, however, that a person may not be tried twice for the same action if

that action has violated both national and state laws 52”.

The double jeopardy is a procedural guarantee that protects the defendant against same crime charges; this

means that the State should act in order to prevent causing embarrassment, and a continuous state of

insecurity and anxiety provoked, from the possibility that he may be found guilty and punished.

“The essence of double jeopardy´s protection against retrial is not just the possibility of a worse result for

the defendant in the second trial, however. It is also the “continuing state of anxiety and insecurity” and the

“embarrassment, expense, and ordeal” of a second trial. “53.

The Court has said that the double jeopardy guarantee includes three rules “It protects against a second

prosecution for the same offense after acquittal. It protects against a second prosecution for the same

offense after conviction. And it protects against multiple punishments for the same offense”54.

-The jury must declare a verdict. There must be a sentence declaring the defendant guilty or not guilty.

The double jeopardy prohibition searches for the integrity of a final judgment or decision. This means that

the first prosecution must be terminated to jeopardy to attach. It´s considered that jeopardy operates since

the jury is sworn55 and empanelled (when the case is filed before a jury), and when the prosecution its

51 Digest of Justinian. Book 48 Title 2 Note 7.

52 Outline of the US Legal System. Bureau of International Information Programs United States Department of State. 2004. Page. 106. 53 Burnham, William. "Introduction to the Law and Legal System of the United States"P.315.

54 North Carolina v. Pearce. 395 U.S.. 711, 717. 1969.

55 Crist v. Bretz.24

opening statement (when the case is filed before a judge). In Wade v. Hunter, the Court established that “a

defendant has a valued right to have his trial completed by a particular tribunal.’’56.

According to the Nolo´s Plain English Law Dictionary Double Jeopardy operates, when: “A defendant is

put "in jeopardy" once the jury is sworn. If the prosecutor moves to dismiss the case after that, the

defendant cannot be retried. When a judge dismisses a case, however, a retrial is generally possible unless

the dismissal was engineered by the prosecutor's misconduct, or there was no overriding necessity to

dismiss the case.” 57

Retrial after a Mistrail: Double jeopardy problems generally occur in two instances: (1) in the case of

acquittal, the prosecutor searches for a new trial or (2) in the case of a conviction, by the prosecutor retrials

the defendant to punish him for a more serious crime or to obtain a higher sentence. But not all process are

terminated with a conviction or acquittal, there´s also the possibility to a mistrial to take place. If the case

were aborted, that causes the judge to declare a mistrial. It´s considered that “retrial is not allowed after a

mistrial granted on a ground that “lend(s) itself to prosecutorial manipulation” and could “allow the

prosecution the opportunity to strengthen its case”58.

- Dual Sovereignty doctrine:

“Successive prosecutions by state and federal governments for criminal offenses arising out of the same

criminal episode are not barred by double jeopardy. These are permitted under the “dual sovereignty”

doctrine. This doctrine is the only exception to the double jeopardy prohibition, being a product of United

States federalism and the sovereignty of the States. Double Jeopardy attaches only related to origin

jurisdiction “(…) which is why a defendant can be tried in federal court after being tried in state court.

Double jeopardy does not prevent trial in a civil court on underlying facts that previously formed the basis

of a criminal trial.”59

This means that it´s possible to have successive prosecutions by federal and state governments for the

same offense without violating the Double Jeopardy Clause. The reason is that if a specific fact is

56 Wade v. Hunter, 336 U.S. 684, 689 (1949).

57 Nolo´s Plain English Law Dictionary

58 Burnham, William. "Introduction to the Law and Legal System of the United States"P.317.

59 Nolo´s Plain English Law Dictionary25

typify as a serious crime for state and federal law, “is an offense against the peace and dignity of both

and may be punished by each”60.

The successive or multiple prosecutions by federal and state governments, depends of the seriousness

of the crime.

-A second trial is not considered to be double jeopardy, when the defendant has chosen to appeal the

original conviction.61 The defendant has the right to appeal only if he is declared guilty. The re trial rule

depends on the defendant position.

The prosecution, can´t appeal an acquittal, because that would initiate a second trial and it would violate the

Double Jeopardy clause. However, the prosecution is able to appeal certain aspects of the sentence, as long

as it doesn´t requires a second trial.

¿What is “Same offence or transaction”?

For double jeopardy to apply, the second prosecution must be for the “same offence”. The guarantee

protects the defendant from being twice trialed for the same facts or offences.

This means that (…) crimes under different states are different offenses if any element is different: if each

offense “requires proof of an additional fact wich the other does not”. This would mean at the very least that

a crime and any of its “lesser-included offenses” would be considered to be the same offense. A lesser-

included offense of a crime is any offense that is less serious than that crime and whose elements are all

included within the definition of a more serious crime”62

According to the double jeopardy clause, the prosecutor cannot retrial the defendant for a more serious

crime, when he was already trial by a less serious crime.

In the case where there are several facts, the court must decide based on the analysis of the “same

transaction”, which states that the prosecution should be joint, where the defendant had incurred, in an

interval of time, various crimes with the same intention or goal. This analysis is commonly used in state

courts.

Comparison to civil law principle: “Non bis in idem”

60 United States vs. Lanza, 260 US 377 (1922)

61 Outline of the US Legal System. Bureau of International Information Programs United States Department of State. 2004. P. 117. 62 Burnham, William. "Introduction to the Law and Legal System of the United States"P.317.

26

The “non bis in idem” principle in civil law is the equivalent to “double jeopardy” in common law. It´s a Roman

law principle which refers to the prohibition the State has to trial a person for the same offense or crime. It´s

established in Article 17 of the Criminal Procedure Code as “unique persecution”.

It´s the procedural and constitutional guarantee that establishes the prohibition of judging twice a person for the

same offense. Also means that no person should be punished twice for the same offence or crime when in trial,

the Court sentence declares the defendant guilty or innocent. Only if there´s the possibility to reduce the

punishment, to benefit the condemned, its possible to review a firm sentence. It´s related to the “In dubio pro

reo”.

This principle is mostly a procedural guarantee, elaborated in order to avoid the jeopardy of a multiple,

simultaneously or successive penal persecution of the same offense, when the trial is finished or it´s still on

curse.

From there comes the right to file “litis pendentia” and “res judicata” exceptions, to show that the defendant has

already been trial for the same offense. Three elements are necessary to apply “non bis in idem”: 1). Same

person; 2). Same object; 3). Same cause.

Blockburger v. United States (1932):

This is one of the most important cases related to the Double Jeopardy guarantee. The Court established the

concept of “same offense” also known as “same transaction”. It established a rule, that is used to determine the

liability or multiple or successive prosecution and punishment. It´s also called the “default rule” or the

“Blockburger test”.

The defendant was charged with violations of the Harrison Narcotics Act Statute. He was accused of selling

drugs (morphine), in five different occasions. The Court sentence the defendant to pay a US $ 2,000.00 fine

for each count and five year punishment in jail.

The Court established that in that particular case, there was no Double Jeopardy violation, because the crimes

where entirely different, and, the defendant could be prosecuted simultaneously or successively, for both

offenses. The elements of the crime were clearly established in the statute, therefore, there wasn’t double

jeopardy.

One of the crimes required that the sell were made in or from the stamped package, and the other required that

the sell needed to be based on a written order of the buyer. The Court established that the defendant had violated

both offenses, and could be punished by both.

The Court established that the government is able to prosecute multiple offenses, arising from one conduct, then

each of the offenses requires a specific proof or fact that the other doesn’t. It means that a defendant could be

27

persecuted for the same criminal episode, charged of two or more offenses if the crimes are different and have

different elements.

The prosecutor must examine each offense to determine if the “lesser” offense is included in the “more serious

offense”, to search for the punishment of all the offenses, considered like one.

Ashe v. Swenson (1970)

It´s related to the Collateral Estoppel, also called issue preclusion. This doctrine was established in this case, to

avoid that the defendant could be prosecuted successively for different crimes when in the first one he´s

acquittal.

In this case, the defendant was prosecuted by robbing one of six players in a card game. First, the defendant was

acquittal, but the prosecution started another trial, accusing him of robbing the second player. It doesn’t matter

that the offense involved a different victim (second player). The retrial constitutes a violation to the Double

Jeopardy clause, because there was a final judgement. The Court established that there was no sufficient

evidence to reach a conviction, and the time to proof had already precluded.

The Collateral Estoppel declares that "once a court has decided an issue of fact or law necessary to its judgment,

that decision precludes relitigation of the issue in a suit on a different  cause of action involving a party to the

first case”.63

The Double Jeopardy is a procedural guarantee to protect the defendant from being twice juzge by the same fact

or offense. It´s a clause that protects the defendant´s rights at trial, based on the idea that facing a trial put the

person into an anxiety state.

The Burden of Proof in the Common Law System and the Guatemalan Law System:

The Burden Of Proof in the United States Common Law System:

The United States Constitution grants many rights to those accused of committing a crime, these rights constitute

important protections to those individuals in conflict with the law. The most important rights related to the

individuals accused of committing crimes are established on the US Constitution 5 th and 6th amendments, being

the presumption of innocence the most important of these rights. This presumption of innocence means that “all

criminal defendants are innocent until they are proven guilty in a court of law”.64 In consequence, the Burden of

Proof relies with entirety on the prosecutor, so he has the duty of proving the elements of the case.65

63 San Remo Hotel v. San Francisco, 545 U.S. 323 (2005), fn. 16.

64 Prosecution. Burden of Proof.org. Found in: http://www.burdenofproof.org/prosecution.html. 10/5/2013.

65 Prosecution. Burden of Proof.org. Found in: http://www.burdenofproof.org/prosecution.html. 10/5/2013.28

The prosecutor has the difficult task of proving that the accused committed a crime, and also that he is guilty

beyond a reasonable doubt, which means that “the evidence should be so convincing that no reasonable person

would every question whether or not he or she is guilty. Therefore, if any reasonable doubts remain, the

defendant cannot be convicted of the crime.”66

Also, in addition with the important rights aforementioned, the Burden Of Proof in the United States Common

Law System is closely related to the due process principle contained in the US Constitution 5 th amendment, and

it constitutes one of the main functions and duties of the prosecutor, because he “has the burden of proof as to

every fact necessary to constitute the charge crime and that those facts must be proved beyond reasonable

doubt”67. The Burden Of Proof is based on the basic right that “any U.S. citizen who has been accused of a

criminal offense has the right to have his or her case tried in front of a judge or jury” 68, this right was established

on the 5th amendment of the US Constitution, and it means that the accused is innocent until proven guilty. In

consequence, the state assumes the duty of proving that the individual accused of committing a criminal offense

is guilty, therefore “under the U.S. judicial system the burden of proof is on the state; the accused is presumed

innocent until the government proves otherwise beyond a reasonable doubt.”69 Also, one of the duties of the

judge is to “remind the jury that the burden of proof is on the state and that the accused is presumed to be

innocent. If, after considering all the evidence, the jury still has a reasonable doubt as to the guilt of the accused;

it must bring in a not guilty verdict.”70

Closely related to the right established by the US Constitution 5 th amendment is the right of the accused to be

assisted by an attorney, this right was established in the US Constitution 6 th amendment, which indicated: “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

66 Prosecution. Burden of Proof.org. Found in: http://www.burdenofproof.org/prosecution.html. 10/5/2013.

67 BURNHAM, WILLIAM. Introduction to the Law and Legal System of the United States. West Publishing Company,

College & School Division. Page 313.

68 Burden of Proof. Burden of Proof.org. Found in: http://www.burdenofproof.org/. 10/5/2013.

69 BUREAU OF INTERNATIONAL INFORMATION PROGRAMS, UNITED STATES DEPARTMENT OF STATE.

Outline of the US Legal System. Page.106.

70 BUREAU OF INTERNATIONAL INFORMATION PROGRAMS, UNITED STATES DEPARTMENT OF STATE.

Outline of the US Legal System. Page.119.29

witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the

assistance of counsel for his defense.”71

Likewise, in the US Common Law system there are three standards of proof: “Preponderance of Evidence,

Clear and Convincing Evidence and Reasonable Doubt”72. These standards are appropriately defined in Black

´s Law Dictionary, which establishes that the “Preponderance of the Evidence is the greater weight of evidence,

not necessarily established by the greater number of witnesses testifying to a fact but by evidence that has the

most convincing force; superior evidentiary weight that, though not sufficient to free the mind wholly from all

reasonable doubt, is still sufficient to incline a fair and impartial mind to one side of the issue rather than the

other.”73

This standard is also known as balance of possibilities and is constituted by the most compelling evidence;

consequently a large number of witnesses are not necessarily required because of the nature and the certainty of

the evidence. Certain doctrines tie this standard with most of the non criminal cases.

As for the Clear and Convincing Evidence, the Black´s Law dictionary sets the next definition: “The Clear and

Convincing is the Evidence indicating that the thing to be proved is highly probable or probably certain. This is

a greater burden than preponderance of the evidence, the standard applied in most civil trials, but less than

evidence beyond a reasonable doubt, the normal in criminal trials.”74 This standard serves as an indicative of the

probability that the act happened, and is one of the most certain and clearer standards.

Finally, the aforementioned legal dictionary defines Reasonable doubt as “The doubt that prevents one from

being firmly convinced of a defendant’s guilt, or the belief that there is a real possibility that the defendant is not

guilty. ‘Beyond a reasonable doubt’ is the standard used by a jury to determine whether a criminal defendant is

guilty. In determining whether guilt has been proved beyond a reasonable doubt, the jury must begin with the

presumption that the defendant is innocent.”75In conclusion, beyond a reasonable doubt means that the charges

71 United States Constitution 6th amendment. Found in: http://www.law.cornell.edu/constitution/sixth_amendment.

10/5/2013.

72 JOHN T. FLOYD LAW FIRM. Standards of Proof. Found in: http://www.johntfloyd.com/blog/standards-of-proof.

10/5/2013.

73 BLACKS LAW DICTIONARY. 8th edition. 1990. Found in: http://www.johntfloyd.com/blog/standards-of-proof.

10/5/2013.

74 BLACKS LAW DICTIONARY. 8th edition. http://www.johntfloyd.com/blog/standards-of-proof

75 BLACKS LAW DICTIONARY. 8th edition. http://www.johntfloyd.com/blog/standards-of-proof30

must be proved in consideration of all the evidence presented in the trial, so there is no room for probabilities.

The evidence must serve to proof the certainty that the accused is guilty of the charge made against him.76

Burden of Proof in the Guatemalan Law System:

In many, if not all, of the Civil Law System countries the Burden Of Proof is based on the legal principle of

Presumption of Innocence, which is also a basic human right of all individuals, internationally guaranteed in the

Convención Americana de Derechos Humanos and the Pacto Internacional de Derechos Civiles y Políticos. 77

This basic right of the individuals is extended to all the phases of the criminal process, and it cannot be violated

nor reduced.

The Burden Of Proof in the Guatemalan Law System is based on the 14 th article of the Constitución Política de

la República de Guatemala, which establishes the “Presumption of Innocence and Publicity of the Trial”: “Any

person is innocent as long as he has not been declared to be judicially responsible in a sentence duly issued.

The detained, the aggrieved [ofendido], the Public Ministry and the lawyers who have been

designated by the interested parties in oral or written form are entitled to know personally all the actions,

documents, and criminal proceedings without any reservation whatever and immediately.”78; also, the Código

Procesal Penal de la República de Guatemala, which serves as the procedural law in Guatemalan Criminal Law,

establishes: “The accused must be treated as innocent during the duration of the process, and as long as a firm

sentence declares him responsible of the crime, imposing him a penalty or a security measure”.79

Therefore the accusing part has the duty to prove the culpability of the accused, being this part the Ministerio

Público, which is the public institution, entitled to promote the criminal prosecution and elaborate the

investigation of the act denounced as crime or fault. This important institution in the Guatemalan Law System is

legally bound to act in accordance to the law principles of objectivity, impartiality and legality, and has the labor

of directing the police forces (or Policía Nacional Civil) in the investigation of the delictual acts. His functions

are established on the Constitución Política de la República de Guatemala and the Ley Orgánica del Ministerio

Público.

76 Reasonable doubt. Mass. Found in: http://www.mass.gov/courts/courtsandjudges/courts/districtcourt/jury-instructions/

criminal/pdf/2180-reasonable-doubt.pdf. 10/5/2013.

77 NOGUEIRA ALCALÁ, Norbeto. Consideraciones sobre el derecho fundamental a la presunción de inocencia. Found in:

http://www.scielo.cl/scielo.php?pid=S0718-00122005000100008&script=sci_arttext. 10/5/2013.

78 Constitución Política de la República de Guatemala (Political Constitution of the Republic of Guatemala). Article 14.

79 Código Procesal Penal de la República de Guatemala (Criminal Procedural Law of the Repúblic of Guatemala. Article 14. 31

In conclusion, the Burden of Proof in the Guatemalan Criminal Law, exclusively concerns to the State (through

the Ministerio Público), because they are enforced to prepare a detailed investigation of the facts deemed illegal,

and in consequence they are legally bound to exercise the “acción penal pública”, or criminal public action. This

criminal public action and its exercise needs to be based on a previous investigation, in order to avoid damages

or false accusations against individuals, because the conviction or being subject to a criminal procedure can take

diverse consequences on the individual accused of committing the crime, most likely, these consequences will be

surely suffered by him in the form of damages and injuries against his reputation, honor and integrity.

Therefore, in Guatemala, all individuals accused of committing acts against the law have basic and fundamental

rights, that protects them against false accusations and maintains them as innocent, until proven guilty.

Related cases with the Burden of Proof in the Common Law System:

One of the most important cases related to the Burden of Proof in criminal law is the In re Winship80 case or

resolution of the United States Supreme Court, where 12 year old minor and juvenile, Samuel Winship was

charged with theft of money from a woman, and later found guilty of the crime, so he was sentenced to one and a

half years in a training school. The importance of this case lies in the analysis made of the charge and whether if

a juvenile can be charged with an act that would constitute a crime if an adult made it. The charge in these case,

and all related cases must proved accordingly to the standard of beyond reasonable, as it is "essential of due

process and fair treatment" required during the adjudicatory stage when a juvenile is charged with an act that

would constitute a crime if committed by an adult. So, “Proof beyond a reasonable doubt, which is required by

the Due Process Clause in criminal trials, is among the "essentials of due process and fair treatment" required

during the adjudicatory stage when a juvenile is charged with an act that would constitute a crime if committed

by an adult.”81

As Justice Harlan expressed in this case: “bottomed on a fundamental value determination of our society that it

is far worse to convict an innocent man than to let a guilty man go free.”82 This quote tends to reinforce the

importance of the burden of proof in all of the criminal cases, and also serves as an example of the difficult task

that judges must perform, in relation to determine the innocence and culpability of the accused, and the practical

80 JOHN T. FLOYD LAW FIRM. Standards of Proof. Found in: http://www.johntfloyd.com/blog/standards-of-proof.

10/10/2013.

81 In Re Winship. States Supreme Court Report 397 U.S. 358 (1970). Found in:

http://supreme.justia.com/cases/federal/us/397/358/case.html

82 In Re Winship. States Supreme Court Report 397 U.S. 358 (1970). Found in:

http://supreme.justia.com/cases/federal/us/397/358/case.html32

consequences of doing so. The proof is a main aspect of all criminal procedures, whether if they are followed on

the common law or civil law.

Other important case, related with the Burden of Proof in criminal law is the Brinegar v. United States 83 case,

argued on October 18 and 19, of 1948 and decided on June 27 of 1949. This case followed in the United States

Supreme Court, and was based on the next facts: “Brinegar was convicted of the importation of intoxicating

liquor into Oklahoma from Missouri, which in that time constituted a violation of a federal statute that prohibited

such importations. The sentence of this case was dictated in base of the liquor seized from his automobile during

the alleged unlawful importation.”84 The importance of these case lies in its resolution, which concluded with the

next argument: “Guilt in a criminal case must be proved beyond a reasonable doubt, and by evidence confined

to that which long experience in the common law tradition, to some extent embodied in the Constitution, has

crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of

our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life,

liberty and property.”85 Therefore guilt needs to be proved beyond a reasonable doubt, in observation with the

evidence that constitutes the elements of proof, based on previous standards established by the common law

tradition.

EXCLUSIONARY RULE IN CRIMINAL PROCEDURE

All criminal procedure involves an individual who has been accused of a crime, because of this fact the criminal

procedure begins with the initial investigation of the crime and it is concluded by a judgment of not guilty or by

the imposition of a term of punishment because of the conviction for the crime. During the investigation in a

criminal procedure the purpose is to avoid the indiscriminate application of criminal laws and the wanton

treatment of suspected criminals by respecting the constitutional rights of criminal suspects and defendants.

There are 27 Amendments that constitute the Bill of Rights of the United States, being the most important the

IV, V, VI and VIII to the United States, they regulate the right of people to be secure against unreasonable

searches and seizures, right to due process, the right to a speedy and public trial, and the right to a non cruel and

unusual punishments inflicted.

83 JOHN T. FLOYD LAW FIRM. Standards of Proof. Found in: http://www.johntfloyd.com/blog/standards-of-proof.

10/5/2013.

84 Binegar v. United States. United States Supreme Court Report 338 U.S. 160, 174 (1949). Found in:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0338_0160_ZO.html. 10/10/2013.

85 Binegar v. United States. United States Supreme Court Report 338 U.S. 160, 174 (1949). Found in:

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0338_0160_ZO.html. 10/10/2013.33

In this section we are interested in the fourth amendment that established “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”86. This amendment protects all individuals who

have been accused of a crime from unreasonable searches and seizures by law enforcement personnel as we can

see in the text mentioned above. Based on this Amendment the exclusionary rule was created. The U.S Supreme

Court considered necessary to improve a way to enforce The Fourth Amendment, because this amendment does

not specify a remedy if a constitutional violation occurs. That`s why the U.S Supreme Court decide to create this

rule in the early 1900`s. Before the creation of this rule, any evidence was admissible in a criminal procedure if

the judge considered that the evidence was relevant to the trial.

In 1914, the U.S. Supreme Court applied the Fourth Amendment to the case of Weeks v. United States and

Boyd v. United Sates, this two cases were the ones that established the foundation for what would become the

rule that individuals were entitled to keep illegally acquired evidence out of criminal proceedings.

In 1917 the exclusionary rule was passed, this rule was created and passed to exclude all evidence obtained in

violation of a criminal defendant`s fourth Amendment rights.

In 1961 the exclusionary rule was imposed upon the state courts through its incorporation into Due Process.

“So Exclusionary rule provides that evidence obtained by violating the defendant’s constitutional rights may not

be introduced by the prosecution, at least for purpose of providing direct proof of the defendant’s guilt.”87

“When law enforcement officials obtain evidence against a person in violation of the Fourth Amendment, the

legal principle that prohibits the admission of that evidence in a criminal trial is known as the exclusionary

rule”.88

“The Exclusion will act as a deterrent to violations of the Constitution, since in many cases the police will have

no motive to conduct an unlawful search, interrogation, etc., if they know that they will not be able to use its

fruits in evidence. It is not required when it does not serve a deterrent effect.”89

86 Rich Smith, BILL OF RIGHTS: DEFINING OUR FREEDOMS, Rich Smith, BILL OF RIGHTS: DEFINING OUR

FREEDOMS, ABDO, 2010. Page 10.

87 Tracey Maclin, THE SUPREME COURT THE FOURTH AMENDMENT EXCLUSIONARY RULE, Oxford University Press, 2012. Page 7.

88 Tracey Maclin, THE SUPREME COURT THE FOURTH AMENDMENT EXCLUSIONARY RULE, Oxford University Press, 2012. Page 7.

89 Tracey Maclin, THE SUPREME COURT THE FOURTH AMENDMENT EXCLUSIONARY RULE, Oxford University Press, 2012. Page 7.

34

It is important to know that the exclusion is not a personal right; this exclusion is just a possible remedy. This is

because the exclusionary rule was adopted as the constitutionally required remedy for a Fourth Amendment

violation in the federal courts.

Suppose that you are walking down the street and a police officer with no justification under the Fourth

Amendment stop you on the street and ask you questions, in this case you have the right based on the Foruth

Amendment to refuse to answer and go on with your business. So the Police Officer cannot stop pedestrians and

conduct any kind of search without first having a reasonable and articulable suspicion that the person is involved

in a criminal activity.

The police officers have to obtain a search warrant that indicates the probable cause, description for the place

that they will search and the items they will seize.

THE FRUITS OF POISONOUS TREE DOCTRINE:

“The exclusionary rule applies not only to evidence obtained directly as a result of improper police conduct but

also to evidence obtained indirectly from that improper conduct. Evidence derived from initial improper conduct

is called fruit of the poisonous tree.”90

According to the doctrine of the fruit of the poisonous tree, any additional evidence obtained as a result of

illegally obtained evidence must be excluded from trial.

So for example “if the police enters your house and find a key to a storage locker, the key is a direct result of

the wrongful entry and is inadmissible. If the police then use the key to unlock the storage locker and find

illegal drugs, the drugs are excluded as fruit of the initial wrongful entry.”

The fruit of the poisonous tree doctrine is applicable if improperly or illegally obtained evidence is the basis for

the discovery of:

Other evidence that otherwise would not have been found

A witness who otherwise might not have been found

A confession or incriminating admission thtat would not have been made if the suspect or defendant had

not been confronted with the tainted (soiled) evidence.91

90 Thomas J. Gardner, Terry Underson, CRIMINAL EVIDENCE: PRINCIPLE AND CASES, Cengage Learning, 2009. Page 184

35

EXCEPTIONS TO THE FRUIT OF THE POISONOUS TREE DOCTRINE

The exclusionary rule will be applied if the evidence is obtained directly and exclusively from improper police

conduct. The Supreme Court of the United States have developed some exceptions to this rule.

One of this exceptions is the independent source that states that if at the same time that a police has discovered

an evidence another proper source leads to the same evidence being this one a proper source of independent

evidence that is not affected by the improper conduct, the evidence is admissible.

When a search is conduct with a good faith belief that is a legal search, the exclusionary rule will not be applied

in this case, so consequently the evidence will be admitted. For example when a police officer believes that it is

not necessary to have a warrant to make a search and seize, in this case the police is acting in good faith, so the

evidence that he acquires will be admitted in the trial.

Another exception is if the discovery of the evidence was inevitable, this is because in this case the police officer

didn’t make an illegal search that caused the evidence to be found.

WHERE DOES THE EXCLUSIONARY RULE DOES NOT APPLY

The exclusionary rule does not apple in a civil case, in a grand jury proceeding, or in a parole revocation hearing.

The exclusionary rule is applied in those cases where evidence unlawfully is obtained from government officials;

it is not applied when the evidence unlawfully is obtained from a private person.

The evidence will be excluded if the illegal search violated the constitutional rights of the person that is making

the court motion, this means that it will not be apply to protect the privacy rights of a third person or party during

the criminal procedure.

The defendant cannot take advantage of the situation (police breaching rules) to turn the case to his advantage, in

face of other evidence against himself. This falls under the exigent circumstances exception.

COMPARISON OF THE APPLICATION OF THE SAID SUBJECT IN COMMON LAW AND CIVIL

LAW SYSTEM;

Evidence in Civil and Common Law Legal Systems

Common Law System Civil Law system

91 T Thomas J. Gardner, Terry Underson, CRIMINAL EVIDENCE: PRINCIPLE AND CASES, Cengage

Learning, 2009. Page 184.

36

Exclusionary Rule There are no exclusionary rules of evidence.

All admissible evidence must be relevant, but not all

relevant evidence is admissible.

if the evidence is relevant to the facts in issue, it is

admitted.

The court or its officers take an active role in finding and

scrutinizing evidence.

The responsibility for adducing and examining evidence

is placed on the litigants.

Separate rules of evidence or separate code of evidence

law.

There is no separate code of evidence law. Rules of

evidence are sparsely distributed in both substantive and

procedural laws.

The rules determine what evidence is admissible and what

evidence is not admissible.

In civil law the admissible of the evidence is determined

by the judge at the moment of the valuation of the

evidence.

The reason is that the juries are non lawyers so they have

little experience in analyzing evidence objectively.

The judges have to be a lawyer so they have more

knowledge of evidence than in common law

As we can see common law system versus civil law system related to exclusionary rule are completely different

because first of all in civil law does not exist an exclusionary rule, there is not a rule that determines what

evidence was obtained violating the constitutional rights to be excluded from the criminal procedure. The main

difference between the two systems is that in common law there is an specific code, separate form other laws or

codes that regulates all related to evidence, someone can ask why in civil law there is no a code that regulates

this aspect and in common law there is, the answer is no to complicated, the reason is because in civil law the

judges are lawyers so they know the law and can determined what evidence is not violating a right and what

evidence is violating a right, another difference is that exclusionary rule is applied to the cases where police

officers are the ones that are obligated to obtain the evidence, in the case of civil law, the one who have to obtain

the evidence and presented into the criminal procedure are the litigants’. So the different mentioned above are

the more relevant to determined what does evidence is regulated in common law and in civil law.

Cases:

Weeks v. United States

Kyllo v. United States.

Another case that can exemplify how the exclusionary rule functions in the United States is Killo V. United

States. In this case the police used a thermal imaging device to search Danny Lee Kyllo`s Home without entering

his house. The thermal imaging was created to recorder the heat being emitted from the home, this device

demonstrates that in the roof of a house there is an amount of heat radiating. It is usually that this happened

when growing marijuana indoors, because this heat help the plants to photosynthesize. By this process the police

37

discovered over 100 marijuana plants inside Kyllo´s home. The police argued that this search was a legal search

because the thermal imaging device does not penetrate walls or windows to reveal conversations or human

activities, the device only discovered the heat being emitted from the home. The decision of the Supreme Court

was that even the thermal imaging can constituted a search, the way the police used this product in this case was

unreasonable and unconstitutional, because the police didn’t have a warrant to used the device, and search Kyllo

´s house. The Supreme Court also argued that by this action the police was violating the right of privacy of Kyllo

in his house. There is a violation of rights because even the police didn’t enter the house they took an evidence

that was inside the house with a technological product. So by this act the police was violating the Fourth

Amendment of Bill of Rights and that’s why the Supreme Court established that the evidence have to be

excluded from the criminal procedure because is was unconstitutional. In this case we can see that there is a

specific protection to the fourth amendment trying to avoid that evidence that constitute a violation of the rights

that are recognized in Bill of Rights.

LIMITATION ON PUNISHMENTS

The Eight Amendment of the United States Constitution states: Excessive bail shall not be required, nor

excessive fines imposed, nor cruel and unusual punishments inflicted. The cruel and unusual

punishments are restricted and may not be applied to people convicted of a criminal offense. The Us

Supreme Court based on the Eight Amendment and the due process princles struck down the death

penalty statutes in some states based on the argument that those statutes left juries the liberty to impose

or not the death penalty.

“In 1791, the same phrase "cruel and unusual punishments" was adopted with little debate as part of the

eighth amendment of the United States Constitution.It is quite clear at the framers intended to outlaw

barbarous punishments. The first eighth amendment cases to come before the Supreme Court

established that punishments involving lingering death or torture, which were acceptable to our Anglo-

Saxon legal forebearers, were cruel and unusual under the interdiction of the eighth amendment.”92

LIMITATIONS ON DEATH PENALTY

Since 1976 states started revising their laws in order to limit the discretion of judges and juries to

impose the death penalty. If a judge pretends to impose the death penalty is obligated to consider some

criteria that will mitigate or aggravate the circumstances in the concrete case and will permit or deny

the possibility of application of the death penalty.

92 http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2355&context=flr38

When the Eight Amendment was ratified in 1791 the death penalty was consider a cruel punishment,

The Supreme Court has admitted that death penalty, indeed, is a cruel punishment but has denied that is

a unusual punishment93. That is why the application of the death penalty is limited by some principles.

Death penalty or capital punishment is consider the most cruel punishment, it´s application is based on

the necessity of the state to punish certain acts that due to it´s severity, have to be punish with the with

the death penalty. The argument that the death penalty is cruel has been challenged in recent years, as it

is considered that the modern methods of execution are painless. The main issue dealing with the

application of death penalty is that it cannot be ensured that an innocent person will not be convicted to

the death penalty.

PROBLEMS WITH THE DEATH PENALTY

RISK OF EXECUTING THE INNOCENT

Problems in the criminal justice system may result in the execution of an innocent person. In the last

years over seventy persons sentenced to the death penalty have been released because of the new

evidence that has emerged as result of the new scientific investigation techniques. 94

At the end of most criminal procedures, it is certain that the defendant is guilty, but in some others the

evidence shows that a person could commit the crime but there are still some doubts about the

guiltiness of the defendant although that the death penalty is applied. In the case of other offenses

punishable by imprisonment this is not as serious, but in the case of the death penalty is necessary to

note that its consequences are irreversible.

Humans make mistakes, and one of those errors may have resulted in the death of an innocent. Arising

from the above, the death penalty should be applied only in those cases in which there is absolute

certainty about the guilt of the accused

DISCRIMINATORY

The death penalty has been considered discriminatory, because the percentages of African American

persons or minorities are sentenced to the death penalty is higher than white people percentages. In

McCleskey v. Kemp The US Supreme Court declare that the argument that in Georgia African

93 Gregg v. Georgia. The US Supreme considered that the death penalti was appropiated for some crimes.

94 State v. Poole: This is evidence in State v. Poole in which Samuel Poole was convicted to death penalty and then the

sentence was overturned because of the lack of evidence.39

Americans are convicted in a higher rate than white people is not sufficient to overturn a guilty verdict,

The Supreme Court´s opinion was based on the fact that the evidence was not enough to reverse the

petitioner´s conviction and conclude that the lower court had properly applied the law.

The death penalty, both in the U.S. and around the world, is discriminatory and is used

disproportionately against the poor, minorities and members of racial, ethnic and religious

communities.95

PROPORTIONALITY OF PUNISHMENT

The penalty has to be proportional to the criminal conduct; the severity of the punishment depends on

the gravity of the act committed, fairness is required to the punishment. Criminal law has a utilitarian

tradition; arising that, the punishment must be deserved. The punishment is limited to the severity of

the crime committed, sanctions must be appropriate and reflect a rational consequence that depends

on the seriousness of particular criminal offenses.

The cases have developed a generally accepted three-pronged test to determine whether a

sentence is so excessively disproportionate to the crime that it violates the eighth amendment.

The three steps are: first, a judgment by the court of the gravity of the offense; second, a

comparison of the sentence under review with that imposed in the same jurisdiction for other

crimes which the court considers to be more serious; and third, a comparison of the challenged

sentence with those imposed in other jurisdictions for the same crime.96

Cases like Carmona v. Ward and Coker v. Ward are important precedents of the equivalence between

the magnitude of the crime and the sentence and the criteria that should be taken into account so that

the punishment is proportionate.

PROBLEMS WITH THE EXECUTION

The execution of the death penalty has been considered cruel and pitiless The US Supreme Court ruled

out that the mechanism of application of the death i.e. the three drug lethal injection was not cruel and

unusual, even sometimes the prisoner may suffer pain before the death, it is caused for a wrong dosage

and in most of the cases the proper administration of the drug guarantee a painless death.

95 http://www.amnestyusa.org/our-work/issues/death-penalty/us-death-penalty-facts

96 http://ir.lawnet.fordham.edu/cgi/viewcontent.cgi?article=2355&context=flr40

Under the 1988 federal death penalty law, no method of execution was provided in the statute.

President Bush did issue regulations in 1993 authorizing lethal injection as the method of execution.

Under the 1994 law, the manner of execution will be that employed by the state in which the federal

sentence is handed down. If that state does not allow the death penalty, the judge may choose another

state for the carrying out of the execution. The federal Bureau of Prisons has converted an old cell

block in Terre Haute, Indiana, into a new facility for condemned federal prisoners. See also, methods of

execution by state.97

Currently the execution method is in most of the states the three drug lethal injection, this injection

formula is supposed to be a painless execution method. Even that in Baze v Rees, the lethal injection

method was questioned, endangering the application of lethal Injection in the United States (the

formula is almost the same in all states). The Supreme Court upheld that the lethal injection method

was constitutional.

MITIGATING AND AGRAVATING CIRCUMSTANCES

In order to impose the death penalty de jury and judges must consider all the circumstances. Is essential

that the defendant has the opportunity to prove his innocence and all mitigating circumstances that

applies to the case. The circumstances in which the crime has been committed can mitigate or

aggravate the crime; the penalty applied depends on the mitigating or aggravating circumstances.

Mitigating circumstances:

1) Impaired capacity. The defendants capacity to determine the wrongfulness of the act.

2) Duress. The defendant act result of duress

3) Minor participation. The defendants participation in the crime was minor.

4) Equally culpable defendants. If other defendant, equally culpable was not punished with death

penalty, no other defendant should be punished with death penalty.

5) No prior criminal record. The defendant has no criminal record.

6) Disturbance. The defendant suffers mental or emotional disturbance.

97 www.deathpenaltyinfo.org/federal-death-penalty41

7) Victim’s consent: The criminal act was consented.

8) Other factors: Like the criminal´s background for example.

Agravating circumstances:

1) The death occurred because of the accomplishment of another crime.

2) If the defendant has been previously convicted for committing a violent crime using a firearm.

3) If the defendant has been previously convicted to the capital punishment or life imprisonment.

4) If the defendant has been previously convicted of serious offenses.

5) If the accomplishment of the crime is a grave risk of death of other persons.

6) If the crime committed is heinous, cruel, or depraved.

7) If the crime is committed with the intention of obtaining a remuneration.

10) The crime is committed with wide planning and premeditation.

10) If the defendant has been previously convicted because of drug felonies.

11) If the crime´s victim is vulnerable, like a kid or elderly.

12) If the defendant has been previously convicted to a federal crime.

CRIMES THAT WARRANT DEATH PENALTY

Due to the proportionality principle, the death penalty should only be used if the crime committed

involves the death of a person. If the crime is the death of a person it would be fair that the defendant is

punished with the death penalty. Despite the above, death penalty has also been applied to other crimes

that are not murder. Crimes convicted with death penalty are called capital crimes (only two persons

have been convicted to death penalty for crimes different than murder). 98

98 In Coker v Georgia Supreme Court upheld that the death penalty was extremely disproportionate for the crime committed (rape). Kenedy v. Lousiana the Supreme Court also upheld that death penalty should not be used in crimes that did not involve death of the victim in those cases death penalty will be disproportionated.

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The death penalty in the United States is used almost exclusively for the crime of murder. Although

state and federal statutes contain various capital crimes other than those involving the death of the

victim, only two people were on death row for a non-murder offense (Patrick Kennedy and Richard

Davis in Louisiana) when the U.S. Supreme Court addressed this issue in 2008. No one has been

executed for such a crime since the death penalty was re-instated in 1976. In 1977, the U.S. Supreme

Court in Coker v. Georgia, 433 U.S. 584, held that the death penalty for the rape of an adult was

"grossly disproportionate" and an "excessive punishment," and hence was unconstitutional under the

Eighth Amendment. The Court looked at the relatively few states that allowed the death penalty for

rape and the few death sentences that had been handed down.99

CLEMENCY

For Federal Death Row inmates, the President alone has pardon power. New guidelines have been

issued that require that an inmate be given 120 days notice of an execution date and allowing 30 days

to file a clemency petition once the execution date has been set.100

Any person convicted for death penalty has the right to request amnesty. Pardon is the forgiveness of

the crime and as it´s consequence the penalty is canceled. Clemency is important for death penalty,

because the person convicted has the right to request it.

LIMITATIONS ON CRUEL AND UNUSUAL PUNISHMENTS

The principle of proportionality of punishment doesn’t applies exclusively to the death penalty, every

sanction should be deserved by the defendant. The punishment must be consistent and result of the act

committed.101 This also applies to fines that is a pecuniary punishment, the Eight Amendment prohibits

the disproportionate or excessive fines.102 The punishment is limited to the circumstances in which is

committed.

DIFFERENCES AND SIMILITUDES WITH CIVIL LAW

SIMILITUDES

99 http://www.deathpenaltyinfo.org/death-penalty-offenses-other-murder

100 http://www.deathpenaltyinfo.org/federal-death-row-prisoners

101 Graham v Florida: juvenile offenders can not be convicted to life imprisionment. It will be a cruel punishment

102 Plymouth Sedan v Pennsylvania: Civil forfeiutere can not be applied if the evidence is obtained in a ilegal form43

PROPORTIONALITY ON PUNISHMENT

Civil Law and Common Law have the same principle of Proportionality of Punishment, Sanctions

(fines, imprisonment or death penalty) must be deserved and fair. The penalty used depends on the

severity of the committed act. Civil Law countries Constitutions protect people of disproportionate or

excessive punishments.

Criminal Law establish the term of the imprisonment or the amount of penalty that may be applied.

MITIGATING AND AGRAVATING CIRCUMSTANCES

The punishment is limited to the circumstances in which is committed, Civil Law judges are obligated

to consider the aggravating and mitigating circumstances in order to punish the defendant. The severity

of the punishment is in relation with the aggravating or mitigating circumstances,that are almost the

same in Common Law and Civil Law systems.

CLEMENCY ON DEATH PUNISHMENT

In Civil Law systems those who have been sentenced to death penalty have the right to request the

pardon of the president. No one can be executed if the pardon has not been denied.

DIFFERENCES

DEATH PENALTY IN CRIMES DIFFERENT THAN MURDER

Some crimes different than murder can be punished with death penalty in Civil Law system countries,

for example in Guatemala crimes like kidnapping, rape of a juvenile, forced disappearance are

punished with death penalty.

PEOPLE WHO CAN NOT BE SENTECED TO DEATH PENALTY

In Civil Law system countries, the capital punishment cannot be applied to certain people like: woman,

elderly, for political reason. In the United States woman can be sentenced to death penalty.

ABOLISIONIST TREND

Almost every Civil Law System countries have struck down death penalty.

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