American criminal procedures Essay

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American criminal procedures

The American Bill of Rights guarantees freedom of speech, religion, and assembly in addition to other significant protections against the suppression of government and official agencies, “provides a noble action and shield of human dignity. ”(Brennan Jr. 1989. p 425) The Bill of rights epitomizes the constant will of humanity for individual rights and protections. Essentially, Bill of Rights as incarnated in the first ten Amendments of American constitution is an acknowledgment of the individual dignity and rights and it also manifest an embargo on the government itself to exploit and manipulate these rights.

“The Bill of Rights, in other words, deals with the protection of the individual against his Government. The protection of an individual against another individual or group of individuals is not implicit in the Bill of Rights, but falls more into the realm of police powers of the Government. ” (Wise, James Waterman, 1941. p. 35) The philosophy and ideas of English Philosopher John Locke has been inducted in the Bill of Rights. Locke presented the philosophy of natural rights i. e.

that all the individuals are endowed with inherent rights. Locke was of the view that civil society of which the government is an organ, is established to safeguard the individual rights. This idea of natural right greatly influenced the concepts Madison who is considered the creator of American Bill of Rights. The guarantees of fundamental individual rights, provided by the bill of rights are general in its definition and application and applicability rests in the discretion of the “adjudicative bodies.

” This quality of the Bill of Rights capacitate it with the ability to be applicable at the broader level because it “permit judges to adapt canons of right to situation not envisaged by those who framed (it) there by facilitating (its) evolution and preserving (its) vitality”(Brennan Jr. 1989). Another distinction of the Bill of rights is that it enables the Supreme Court to reform American criminal procedures and align it with the provision and protections in the Bill of Rights. For example in Miranda vs.

Arizona case, the Court made it clear that police must inform the person under interrogation his rights. Its ruling included that police must inform the detainee his right to silence and his right to a lawyer. But the attitude of Supreme Court is ambivalent in the above mentioned case and is encircled with controversies. Sixth Amendments provides the right of counsel to the detainees or individual under interrogation or under prosecution in a federal court. The denial of such counseling negates the provision of Bill of rights.

Certain ruling by the federal courts exemplify that courts are still in a state of confusion over this issue. “In dealing with state cases the Supreme Court has distinguished between the situation where an accused is denied the right to consult a lawyer whom he had selected, and that where, being unable to procure any lawyer, the court refused to appoint one. In the former case a conviction cannot standing the latter it depends on the circumstances”. (Fraenkel, O. K. 1963, p. 117). The House vs. Mayo and Betts vs.

Bardy cases are clear manifestation of this duality on the part of judiciary. ( House v. Mayo, 324 U. S. 786 (1945) 117, 118 & Betts v. Brady, 316 U. S. 455 (1942) 118) In the absence of an enforcement mechanism or power of vindication, the bill of rights becomes mere moral ideals. These moral ideals are better appreciated rather than practiced. Same is the case with the American Bill of Rights. The courts can take action unless a plea is made to it. But a written charter is also essential to empower the judiciary protect the citizen from the clutches of official hostility.

This empowerment through bill of Rights manifested itself in the case of NSA surveillance controversy. U. S. President George W. Bush promulgated a secret executive order soon after 9/11 that capacitated the National Security Agency (NSA) with an authority to carry out wiretapping of suspected persons in America. The hallmark of this executive order was to conduct surveillance without acquiring approval or warrants from a FISA court (Risen. J & Lichtblau Eric. 2005).

These order and activity were unlawful and unconstitutional as it violated the legal and constitutional privacy rights of the people provided under Fourth Amendment. Fourth Amendments states that “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. ”(Hand, L. 1986)

The executive order issued by the President Bush for warrantless surveillance is an explicit violation of the fourth amendment as it enables the security agencies to intrude the private lives of American people without providing any “probable cause” for this act. The illegality of the executive order was further reinforced by the court decision in ACLU vs. NSA case. The U. S. District Court Judge OF Eastern District of Michigen ruled that wiretapping without warrant from FISA is an unlawful and unconstitutional activity as it is the violation of individual privacy rights and freedom.

The judge further ordered to eavesdrop on phone calls with immediate effect. In her ruling she wrote: “The President of the United States, a creature of the same Constitution which gave us these Amendments, has undisputedly violated the Fourth in failing to procure judicial orders as required by FISA, and accordingly has violated the First Amendment Rights of these Plaintiffs as well. ” (ACLU v. NSA. 2006 p. 33) The duality of the adjudicative powers is clear from a previous ruling where in Draper case (Draper v. United States, 358 U. S. 307 (1959) 100) the Court advocate in favour of a warrantless search made to an arrest in a public place. The court ruling was based on the ground that law enforcement agency had “probable cause” to believe that a criminal activity has occurred although they worked on information from an informant formerly found reliable. This was obvious mockery of the civil rights of the individuals. Above mentioned examples illustrates that Bill of Rights is a proper and valid guarantee for the individual rights of American citizens. But lack of a proper reinforcement mechanism makes it dependent.

The generality of the provisions of Bill of Rights is an important characteristic that enables the adjudicative agencies to interpret it according to situational context of a particular case. Although certain rulings by the Courts has harmed the true nature and objective of the Bills of Rights and had reduced it to mere cherished ideals but still it is an important tool to protects the rights of American people References ACLU vs. NSA. (2006) http://fl1. findlaw. com/news. findlaw. com/nytimes/docs/nsa/aclunsa81706opn. pdf Brant, I. 1965, The Bill of rights: its origin and meaning.

A Mentor book, New American Library, New York. Brennan, William J. Jr. 1989, Why Have a Bill of Rights? Oxford Journal of Legal Studies, vol. 9, no. 4. pp. 425-440 Draper v. United States, 358 U. S. 307 (1959) 100 http://caselaw. lp. findlaw. com/cgibin/getcase. pl? friend=nytimes&navby=case&court=us&vol=358&invol=307 Dumbauld, E. 1979, The Bill of rights and what it means today. Greenwood Press, Westport. Fraenkel, O. K. 1963, The Supreme Court and civil liberties: how the Court has protected the Bill of rights. 2d ed.

Published for the American Civil Liberties Union, Dobbs Ferry, N. Y.. Hand, L. 1986, The Bill of rights. College ed. The Oliver Wendell Holmes lectures 1958. Atheneum, New York, N. Y.. Strauss, David A. 1992, Afterword: The Role of a Bill of Rights The University of Chicago Law Review, vol. 59, no. 1, The Bill of Rights in the Welfare State: A Bicentennial Symposium, pp. 539-565. Risen. J & Lichtblau Eric. 2005, Bush Lets U. S. Spy on Callers without Courts, NewYork Time, December 16. http://www. nytimes. com/2005/12/16/politics/16program. html? ei=5090&en=e32072d786623ac1&ex=1292389200

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