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[PASSED] Omnibus Due Process Act

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Imperium Anglorum
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[PASSED] Omnibus Due Process Act

Postby Imperium Anglorum » Sun Aug 29, 2021 10:44 pm

Human Rights: Mild

Whereas recent legal developments have led to the repeal of GA 443 “Preventing the Execution of Innocents”, and the repeal of various provisions protecting the rights of criminal defendants writ large, rather than just in terms of capital prosecutions:

And whereas the Assembly seeks to reimpose those protections to protect defendants from overzealous prosecutors seeking unfair and unjust outcomes to pad their case records or the influence of member nations seeking certain favourable outcomes by undue process of law:

And whereas three classes of protections are of utmost importance to safeguard defendants from corruption of their advocates, prevent defendants from being surprised with evidence introduced at the last minute, and safeguard persons under the custody of member nations or agents thereof from being rendered to areas where they are not protected by World Assembly legislation:

The World Assembly enacts as follows:

  1. Negative inference. The invocation of any right or privilege by the defendant may not be used as evidence of wrongdoing or as the basis of a negative inference.

  2. Undue influence. Member nations shall not attempt to pervert justice by unduly influencing the defendant or defence counsel. Nor shall member nations require or coerce the defendant or defence counsel to make decisions which may damage their defence or, in the case of counsel, client welfare.

  3. Discovery. Prosecutors before member nation courts shall provide the defence with all evidence collected in the process of investigation. Defendants must also provide to prosecutors such evidence they also have collected.

    1. Evidence may be excluded if there is a preponderance of evidence that providing it would lead to witness tampering or intimidation, expose information vital to national security, or substantially threaten the safety of witnesses or other third parties.

    2. Counsel for the defence shall be provided sufficient time to review and examine evidence provided under the above clause. It shall be grounds for reversible error on appeal if the defence can show insufficient time was provided such that a competent advocate could not have provided effective counsel.

    3. In this section, the word “evidence” does not include strategies or other products of time spent by attorneys or advocates reviewing that case.
  4. Rendition. No individual in the custody of a member nation, or any agents thereof, may be extradited, rendered, or otherwise moved to any place likely to commence, resume, or carry out judicial proceedings which would contravene World Assembly legislation against that individual.
Last edited by Imperium Anglorum on Tue Oct 19, 2021 9:27 am, edited 11 times in total.

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Postby Imperium Anglorum » Sun Aug 29, 2021 10:45 pm

Reserved.

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Postby Tinhampton » Mon Aug 30, 2021 4:40 am

Support - in the increasingly unlikely event that 443 is ever actually repealed.
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Postby Hulldom » Mon Aug 30, 2021 7:04 am

"which would contravene World Assembly legislation" probably does not need to be set off as an appositive here. Additionally, might it make sense to develop some sort of prohibition against hearsay? (Lawyers feel free to challenge the substantive legal stuff on this, including if I need to be told off for this already being here or something.)
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Postby Imperium Anglorum » Mon Aug 30, 2021 7:28 am

Hulldom wrote:"which would contravene World Assembly legislation" probably does not need to be set off as an appositive here.

Well taken.

Hulldom wrote:Additionally, might it make sense to develop some sort of prohibition against hearsay? (Lawyers feel free to challenge the substantive legal stuff on this, including if I need to be told off for this already being here or something.)

Hearsay is a rule barring admission of certain types of evidence. The hearsay rule, at least as implemented in Anglo-American common law, also has so many exceptions that if I were to touch it – and I don't want to – it would require all 5000 characters. Insofar as the specific rules of evidence are outside the context of stopping undue influence of counsel, ensuring that the state cannot win on surprises, and stopping people from being extraordinarily rendered, that would be the topic for a different proposal.
Last edited by Imperium Anglorum on Mon Aug 30, 2021 7:30 am, edited 1 time in total.

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Postby Old Hope » Mon Aug 30, 2021 9:37 am

OOC: This might be illegal.
Imperium Anglorum wrote:Discovery. Prosecutors before member nation courts shall provide the defence with all evidence collected in the process of investigation. Defendants must also provide to prosecutors such evidence they also have collected.

It appears to contradict World Assembly Resolution 37.
REQUIRES that the accused may not be forced to self-incrimination, and that this constitutes sufficient reason for them to refuse to answer a question put to them during the trial;
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Postby Imperium Anglorum » Mon Aug 30, 2021 10:34 am

Old Hope wrote:OOC: This might be illegal.
Imperium Anglorum wrote:Discovery. Prosecutors before member nation courts shall provide the defence with all evidence collected in the process of investigation. Defendants must also provide to prosecutors such evidence they also have collected.

It appears to contradict World Assembly Resolution 37.
REQUIRES that the accused may not be forced to self-incrimination, and that this constitutes sufficient reason for them to refuse to answer a question put to them during the trial;

Self-incrimination has never been considered to include surrender of physical evidence. Insofar as the defence produces physical evidence to that effect (ie signing a confession), it is itself a waiver of that right. Testimony under oath at the trial is protected based on the statement in GA 37, but non-collection is not penalised. Disclosure of evidence is not itself a pleading.

The remaining possibility for this to be the case, that any delivery of any evidence by the defence is somehow self-incrimination, is absurd and doesn't square with the context in GA 37 on statements and testimony. Submitting a bloody knife when required by warrant is not self-incrimination.
Last edited by Imperium Anglorum on Mon Aug 30, 2021 10:38 am, edited 2 times in total.

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Postby Sierra Lyricalia » Mon Aug 30, 2021 1:31 pm

"In 2(b), 'no competent advocate' strikes me as too exacting a standard. If Eodore Tholsen or Cocky John Ransom could have provided effective counsel despite being blindsided by undisclosed evidence, that doesn't mean a defendant could get on those lawyers' schedules, or afford their fees. I suggest wording akin to 'no advocate of average competence' or perhaps 'an advocate above replacement level.' One's ability to pay shouldn't be the deciding factor in whether or not prosecutors can get away with evidentiary skulduggery."
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Postby Sierra Lyricalia » Mon Aug 30, 2021 1:32 pm

Old Hope wrote:OOC: This might be illegal.
Imperium Anglorum wrote:Discovery. Prosecutors before member nation courts shall provide the defence with all evidence collected in the process of investigation. Defendants must also provide to prosecutors such evidence they also have collected.

It appears to contradict World Assembly Resolution 37.
REQUIRES that the accused may not be forced to self-incrimination, and that this constitutes sufficient reason for them to refuse to answer a question put to them during the trial;


No.
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Postby Imperium Anglorum » Mon Aug 30, 2021 1:43 pm

Sierra Lyricalia wrote:"In 2(b), 'no competent advocate' strikes me as too exacting a standard. If Eodore Tholsen or Cocky John Ransom could have provided effective counsel despite being blindsided by undisclosed evidence, that doesn't mean a defendant could get on those lawyers' schedules, or afford their fees. I suggest wording akin to 'no advocate of average competence' or perhaps 'an advocate above replacement level.' One's ability to pay shouldn't be the deciding factor in whether or not prosecutors can get away with evidentiary skulduggery."

An advocate of average competence would be more competent than a competent advocate. I see what you meant now.
Last edited by Imperium Anglorum on Mon Aug 30, 2021 1:43 pm, edited 1 time in total.

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Postby Imperium Anglorum » Sun Oct 10, 2021 2:17 pm

Bump, now that P Innocents was repealed illegally.
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Postby Bears Armed » Sun Oct 10, 2021 2:36 pm

1. Member nations shall not attempt to pervert justice by unduly influencing the defendant or defence counsel. Nor shall member nations require or coerce the defendant or defence counsel to make decisions which may damage their defence or, in the case of counsel, the welfare of their client.

OOC: Would this mean that defendants could no longer be required to swear that they will tell "the truth, the complete truth, and nothing but the truth"? After all, there are probably WA member nations where -- for supernatural reasons -- anybody formally swearing that oath really would have to keep it...
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Postby Imperium Anglorum » Sun Oct 10, 2021 2:44 pm

Bears Armed wrote:
1. Member nations shall not attempt to pervert justice by unduly influencing the defendant or defence counsel. Nor shall member nations require or coerce the defendant or defence counsel to make decisions which may damage their defence or, in the case of counsel, the welfare of their client.

OOC: Would this mean that defendants could no longer be required to swear that they will tell "the truth, the complete truth, and nothing but the truth"? After all, there are probably WA member nations where -- for supernatural reasons -- anybody formally swearing that oath really would have to keep it...

We already have bars against requiring testimony that would lead to self-incrimination. GA 37 "Fairness in Criminal Trials". Regardless, I am not very inclined myself to bow before religio-wank just in the same way I'm not that interested in entertaining Clarketech-wank.
Last edited by Imperium Anglorum on Sun Oct 10, 2021 2:46 pm, edited 1 time in total.

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Postby Imperium Anglorum » Sun Oct 10, 2021 3:59 pm

I will submit this next.

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Postby Old Hope » Sun Oct 10, 2021 5:59 pm

Member nations shall not attempt to pervert justice by unduly influencing the defendant or defence counsel.

Worthless.
What's undue influence and what not is not explained. It is open to interpretation.
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Postby Hulldom » Sun Oct 10, 2021 6:47 pm

Old Hope wrote:
Member nations shall not attempt to pervert justice by unduly influencing the defendant or defence counsel.

Worthless.
What's undue influence and what not is not explained. It is open to interpretation.

"I think tampering with evidence and/or witness/jury tampering is something that's well-established and need not be elaborated on."
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Postby Goobergunchia » Sun Oct 10, 2021 6:52 pm

Imperium Anglorum wrote:2b. Evidence may be excluded if there is a preponderance of evidence that providing it lead to witness tampering or intimidation, expose information vital to national security, or substantially threaten the safety of witnesses or other third parties.

We believe that this sentence is missing a "would" before "lead".

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Postby Imperium Anglorum » Sun Oct 10, 2021 6:59 pm

Goobergunchia wrote:
Imperium Anglorum wrote:2b. Evidence may be excluded if there is a preponderance of evidence that providing it lead to witness tampering or intimidation, expose information vital to national security, or substantially threaten the safety of witnesses or other third parties.

We believe that this sentence is missing a "would" before "lead".

Correction well taken!

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Postby Comfed » Mon Oct 11, 2021 7:59 am

Doesn’t this proposal assume an adversarial justice system? Maybe I’m reading it wrong but it looks to be so in clause 2.
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Postby Imperium Anglorum » Mon Oct 11, 2021 11:12 am

Comfed wrote:Doesn’t this proposal assume an adversarial justice system? Maybe I’m reading it wrong but it looks to be so in clause 2.

In an inquisitorial justice system, defendants are still permitted to raise objections (general ones not the legal ones) to the judge for exclusion of evidence and cross-examine witnesses etc. Section 2(b) does somewhat assume that defendants need effective counsel. However, in an inquisitorial system I would imagine that it is easier to show effective counsel, especially if the role of counsel is lessened.

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Postby Desmosthenes and Burke » Mon Oct 11, 2021 11:55 am

Imperium Anglorum wrote:
Comfed wrote:Doesn’t this proposal assume an adversarial justice system? Maybe I’m reading it wrong but it looks to be so in clause 2.

In an inquisitorial justice system, defendants are still permitted to raise objections (general ones not the legal ones) to the judge for exclusion of evidence and cross-examine witnesses etc. Section 2(b) does somewhat assume that defendants need effective counsel. However, in an inquisitorial system I would imagine that it is easier to show effective counsel, especially if the role of counsel is lessened.


OOC: Just throwing out, the French system (with which I am most familiar) still provides the defense the entire dossier. For the reverse, I cannot imagine any circumstance in which a criminal defendant WOULDN'T hand over exculpatory evidence immediately anyway (I mean, presuming the defendant wishes for acquittal). Civil matters are a different matter, but I do not read IA to be reaching into civil law here, so I am not sure it is relevant.

Edit: IA, how would you feel about adding a line somewhere to the effect of:
The invocation of any right or privilege by the defendant may not be used as evidence of wrongdoing or as the basis of a negative inference.

? I do not recall, but I do not believe the prior guarantee of the right to remain silent prevents such silence from being used to the detriment of the defendant.
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Postby Imperium Anglorum » Mon Oct 11, 2021 3:48 pm

Desmosthenes and Burke wrote:
Imperium Anglorum wrote:In an inquisitorial justice system, defendants are still permitted to raise objections (general ones not the legal ones) to the judge for exclusion of evidence and cross-examine witnesses etc. Section 2(b) does somewhat assume that defendants need effective counsel. However, in an inquisitorial system I would imagine that it is easier to show effective counsel, especially if the role of counsel is lessened.


OOC: Just throwing out, the French system (with which I am most familiar) still provides the defense the entire dossier. For the reverse, I cannot imagine any circumstance in which a criminal defendant WOULDN'T hand over exculpatory evidence immediately anyway (I mean, presuming the defendant wishes for acquittal). Civil matters are a different matter, but I do not read IA to be reaching into civil law here, so I am not sure it is relevant.

Edit: IA, how would you feel about adding a line somewhere to the effect of:
The invocation of any right or privilege by the defendant may not be used as evidence of wrongdoing or as the basis of a negative inference.

? I do not recall, but I do not believe the prior guarantee of the right to remain silent prevents such silence from being used to the detriment of the defendant.

Thanks for your feedback, I'm not very familiar with criminal trials in civil law jurisdictions (outside the context of the Roman republic and empire, so about 2000 years out of date), so it's very well taken.

The suggestion also is well taken. GA 37 "Fairness in Criminal Trials" says "the accused may not be forced to self-incrimination, and that this constitutes sufficient reason for them to refuse to answer a question put to them during the trial" but it does not go further in prohibiting a negative inference. Eg J Dig 50.17.142 (Paul, Edict 56) ("Someone who is silent does not necessarily confess; but yet it is true that he does not deny").

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Postby Desmosthenes and Burke » Mon Oct 11, 2021 5:51 pm

Imperium Anglorum wrote:Thanks for your feedback, I'm not very familiar with criminal trials in civil law jurisdictions (outside the context of the Roman republic and empire, so about 2000 years out of date), so it's very well taken.

The suggestion also is well taken. GA 37 "Fairness in Criminal Trials" says "the accused may not be forced to self-incrimination, and that this constitutes sufficient reason for them to refuse to answer a question put to them during the trial" but it does not go further in prohibiting a negative inference. Eg J Dig 50.17.142 (Paul, Edict 56) ("Someone who is silent does not necessarily confess; but yet it is true that he does not deny").


On the assumption that the GA at large did not want to read several hundred words on the matter, I TGed you an overview, after which I think you will understand also my suggestion for the addition.
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Its reasoning may be found here.

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Postby Sierra Lyricalia » Fri Oct 15, 2021 4:24 pm

Desmosthenes and Burke wrote:On the assumption that the GA at large did not want to read several hundred words on the matter...


OOC: Just where do you think you're posting, anyway? When you assume... :p
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