Section 3.  Implement the Protection of the Individual's Rights

 

In American television shows or even in movies in Hong Kong, one often sees a police officer arresting a suspect and saying in a monotone to the suspect, "You have a right to remain silent;  what you say may be used against you as evidence in court!". After arriving at the police station, the police will try to ask questions. The suspect usually says, "I have a right to see my lawyer!".

 

In an American criminal law court, when the judge begins the process of criminal charges, or when he accepts the plea of guilt by a defendant, he would announce to the defendant the individual rights under the Constitution, which are substantially as follows:

 

"According to the Constitution, you have the right to ask for a trial by court or jury. You are also entitled to a speedy and public trial. You have a right to question the witness and confront all the witnesses who testify against you. You have a right to refuse to testify that incriminate yourself. You have the right to represent yourself. If you plead guilty, that is the same as testifying against yourself. You have the right to present evidence and witnesses. You have aright to demand and request the court to summon evidence or witness that are in your favor, and at no charge to you".

 

After the judge announces the rights relevant to the defendant, he would ask the defendant item by item if he is waiving such right.  When the defendant pleads guilty, the judge would ask, "Are what you are saying and pleading guilty made voluntarily and based on your own individual will? Is there any person who has threatened or compelled you to make your decision? Has any person applied pressure to influence your decision?" After he receives the confirmation by the defendant that it is voluntary and without outside influence, the court then makes a verdict. 

 

Under most circumstances, the defendant will waive those rights. For example, the defendant hopes for a court trial, he has to waive the right to a jury trial. Or the defendant's attorney needs more time to collect evidence and study the facts and asks for a postponement of a trial date, the court can only approve with the agreement of the defendant. If he agrees, he has to waive the right to a "speedy trial".

 

In the police station, immigration bureau, or even in a hearings department in the traffic department that handles traffic violations, the presiding official must announce similar Constitutional rights to the person involved, to make sure that he understands his rights, before investigation and questioning begin. 

 

The American law is complex like a limitless seas. It is not too possible for a common person to understand it in detail. But at least he should understand his own basic rights protected by the Constitution. The American protection of personal security and freedom (including the body, thoughts, religion, and speech and so on) and the protection of an individual's property are all derived from the Constitution. Thus every person should study and learn the Constitution on his own, or he does not know the source of his own rights.

 

Subsection 3.1. The People Cannot be Subject to Unreasonable Search and Seizure

 

The Fourth Amendment of the United States Constitution states:

 

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 Amendment means that, if there is no probable cause, the government cannot search the body of the people or their property at will, nor can it at will issue a search or arrest warrant. For example, you are driving at excessive speed on a highway. The police has the right to stop the car and issue you a traffic ticket. But if the police asks to search your body and the car, you have a right to refuse; the reason is that the police does not have a search warrant and does not even have "probable cause" to apply for a search warrant.

 

However, if the police sees that you have a bulging pocket, showing something that resembles the handle of a gun, he will have "probable cause". He can search your body immediately without waiting for an approved search warrant nor your consent. But even if the police acts in this manner, he will have to explain to the court later to have the court rule if what he has done is lawful. Under this circumstance, the court usually finds that the police has a right to respond as circumstances require and search for possible crime weapon; his action does not count as a violation of the Fourth Amendment. Similarly, if the police sees through the car window the handle of a gun in your car, he has the right to search your car without a search warrant or your consent. The reason is that there is probable cause to show that you possess an unlawful weapon.

 

If the police sees something like the butt of a marijuana cigarette on your car seat, does he have athe right to search the car? If he searches the car and finds no marijuana; instead he finds an unlawful weapon, whether this is an unconstitutional search will be decided by a judge in court. If the judge finds that the police does not have probable cause, the gun the police has seized will not be admissible as evidence in a trial.

 

The number of questions dealing with search and seizure is simply numerous, and not limited to the police entering a house to search nor the seizure of tangible materials. In almost every criminal case, the first thing a defense attorney will do is to challenge the prosecution to see if his evidence has been lawfully obtained.  

 

Subsection 3.2.  The Fifth Amendment of the Constitution - the Right

of an Accused to Remain Silent

 

The Fifth Amendment of the United States Constitution states:

 

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

 

This Amendment includes laws such as the grand jury and "double jeopardy", but the right to remain silent ("nor shall be compelled in any criminal case to be a witness against himself") is actually its most important protection of human right.  

　　

Of course, a criminal defendant who voluntarily testifies or voluntarily confesses, that is his or her right. But in a serious criminal litigation, the defendant testifies and says the wrong thing may have life and death consequences. There was a dramatic example in the Simpson case.  When he was initially suspected by the police, the police went to his home with an arrest warrant to arrest him; he had disappeared. Although he returned after several hours of air and land chase, he became flight from arrest risk. His request for bail was denied by the judge because the possibility of his abandoning the bail was too high.  

 

Soon thereafter Simpson asked the judge again for release on bail and volunteered to testify before the judge in court. The judge asked how he was feeling. Simpson insisted on his innocence and said that there were two motherless children at home (the mother was the ex-wife who had been murdered); he needed to be released on bail to take care of them. He asked for an early conclusion of the case to allow him to live a normal life. Simpson denied that he had tried to escape from the police arrest. Then he said, " Everyone knows that I have called my father in law.  At the time I was confused. I admit that I was not in a state of reasonable consciousness.  I was trying to contact my wife...".　

 

In this critical moment, Simpson's attorney cut in and said to the judge,"Your Honor, I am sorry...". But Simpson had already continued saying, "I was coming home... ". At this point the attorney severely cut him off sharply, "Mr. Simpson, I am telling you now, I would not permit you to talk.  If you continue to do so, I shall no longer be your counsel!".  Simpson finally shut up. But the judge still rejected his request for bail.

 

The above exchange in court can be analyzed on several levels.

 

First, Simpson insisted on his innocence and wanted to finish the case as soon as possible so that he could care for his two children. He was talking from the point of view of a common person without consulting with his attorneys in advance about a strategy. His purpose was to arouse the sympathy of the judge, but he did not understand that what he said had no meaningful value in the law.

 

Second, if Simpson continued to talk nonstop, he was approaching the dangerous red line. If he only said one thing wrong, the defense of his murder charge would become very difficult. So the Simpson lawyer severely forbade him from talking further.

 

Third, if this had not been a bail hearing but an actual trial, the moment Simpson began to testify voluntarily, his lawyer was absolutely not allowed to cut off his testimony. Once he started talking, he would be waiving the right to remain silent under the Fifth Amendment of the Constitution. Any party, including the prosecuting attorney, was then allowed to ask him questions directly. If Simpson made an error in replying to questions, no person could help him.

 

Fourth, as I say repeatedly, in a litigation, the more you talk, the more errors you make. The client must never act on his own.

 

Fifth, from the attorney's point of view, the period when a client testifies in court is often the most nerve wrecking and most dangerous moment. Success or failure could depend on this act. Unless the lawyer has absolute confidence in his client, otherwise a criminal defense attorney inevitably advises his client to exercise his right to remain silent under the Fifth Amendment, unless there is truly no choice. In this particular litigation, obviously Simpson's lawyer instructed Simpson to use the right to remain silent under the Fifth Amendment of the Constitution; he never testified from beginning to end.

 

Subsection 3.3. The Sixth Amendment: A Fair, Speedy Trial and the Right to Hire a Lawyer

 

The Sixth Amendment of the United States Constitution states:

 

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

 

Subsection 3.3.1.The Right to have an Attorney

 

In prior section we mentioned the fact that a judge needs to announce to a defendant his constitutional rights. One of them is his right to hire a lawyer, which is derived from the Sixth Amendment of the Constitution. Regardless of whether it is in Hong Kong or in America, there is a principle in law, to whit, that any person accused of committing a crime should not lose his right to be protected under the law, including a right to assistance by counsel, because he has limited economic resources. If the defendant is absolutely poor, he is entitled to ask the court to appoint a counsel to defend him, with expenses generally paid by the government. If the court finds that he has economic ability, he can order him to pay some or all of the lawyer fees. The American court usually appoints a Public Defender but sometimes a private attorney to represent someone who is unable to hire a lawyer.

 

The procedure and substance of law are extremely complicated. In the interest of both the personal rights of the defendant and that of the court to facilitate proceedings, employing an attorney is a matter of course. However, one point must be stressed. The defendant has a right to employ an attorney to represent himself in court, but he also has the right not to employ a lawyer.  Under American law, any person has a right to represent himself. There was a case in New York where a mental patient went into a rampage in the subway, shooting to death or injuring tens of people. He was not satisfied with the Public Defender's proffered reason to defend him (the defense reason was that he was mentally confused during the rampage), so he chose to represent himself. However, though this person was mentally abnormal in the first place, he still had a right to represent himself until a formal legal procedure proved that he was mentally abnormal and therefore could not represent himself.  As a result he was allowed to talk all kinds of nonsense in court, creating headaches for everyone.

 

Subsection 3.3.2.  Speedy Trial

 

The people who are not familiar with American law often hear a question asked by a judge in a court and are confused. That is, during an arraignment, if the defendant pleads not guilty and a date for trial will be set, the judge will ask the defendant and his attorney, "Are you willing to waive time?".  What does it mean?

 

"Waive time" is a legal term. "Time" does not mean time in the general sense.  After the defendant is arrested, normally the police must deliver him to the court within twenty four hours. If the defendant pleads not guilty, under the Sixth Amendment of the Constitution, he is entitled to a speedy trial to resolve the case. With respect to the definition of speedy trial, the Federal Government and most states, including California, mandate a trial to commence within sixty days. However, in practice most cases cannot commence trial within sixty days due to a variety of reason, including the cumulative case load of the court which does not permit a trial in time. More often it is because the attorneys for both the prosecution and defense need time to collect evidence. The defendant usually accepts the advice of his counsel whether to "waive time", but if he does not waive this right, the court must begin trial within sixty days.