| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights 1 | Rome Statute of the International Criminal Court 2 | 1949 Geneva Conventions and 1977 Protocols 3 | Uniform Code of Military Justice -- General Courts-Martial 4 | |
| RIGHT TO LIBERTY | "No one
shall be ... deprived of life, liberty, or property, without due process
of law; nor shall private property be taken for public use, without just
compensation." "... no
warrants shall issue, but upon probable cause." |
"Everyone
has the right to liberty and security of person. No one shall be subjected
to arbitrary arrest or detention. No one shall be deprived of his liberty
except on such grounds and in accordance with such procedure as are established
by law." The accused
"shall be brought promptly before a judge or other officer authorized
by law to exercise judicial power and shall be entitled to trial within
a reasonable time or to release. It shall not be the general rule that
persons awaiting trial shall be detained in custody, but release may be
subject to guarantees to appear for trial, at any other stage of the judicial
proceedings, and, should occasion arise, for execution of the judgment."
"Anyone
who is deprived of his liberty by arrest or detention shall be entitled
to take proceedings before a court, in order that that court may decide
without delay on the lawfulness of his detention and order his release
if the detention is not lawful." Article 9(4) "Anyone who has been the
victim of unlawful arrest or detention shall have an enforceable 2right
to compensation." |
"A person
shall not be subjected to arbitrary arrest or detention, and shall not
be deprived of his or her liberty except on such grounds and in accordance
with such procedures as are established in this Statute." "A person
arrested shall be brought promptly before the competent judicial authority
in the custodial State." A person
shall "not [be] detained for an unreasonable period prior to trial due
to inexcusable delay by the Prosecutor. If such delay occurs, the Court
shall consider releasing the person, with or without conditions." "Anyone
who has been the victim of unlawful arrest or detention shall have an
enforceable right to compensation." |
Except
in cases of arrest or detention for penal offences, a person "shall be
released with the minimum delay possible and in any event as soon as the
circumstances justifying the arrest, detention or internment have ceased
to exist." Pre-trial
confinement of prisoners of war is not permitted "unless a member of the
armed forces of the Detaining Power would be so confined if he were accused
of a similar offence, or if it is essential to do so in the interests
of national security" and "[i]n no circumstances shall this confinement
exceed three months." |
"No person
may be ordered into arrest or confinement except for probable cause."
"Nothing
in this article limits the authority of persons authorized to apprehend
offenders to secure the custody of an alleged offender until proper authority
may be notified." |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO NOTIFICATION OF RIGHTS, REASONS OF DETENTION AND CHARGES | "The accused
shall enjoy the right ... to be informed of the nature and cause of the
accusation." Sixth Amendment |
"Anyone
who is arrested shall be informed, at the time of arrest, of the reasons
of his arrest and shall be promptly informed of any charges against him." "In the
determination of any criminal charge against him, everyone shall be entitled
to the following minimum guarantees, in full equality: To be informed
promptly and in detail in a language which he understands of the nature
and cause of the charge against him." |
A person
shall "be informed, prior to being questioned, that there are grounds
to believe that he or she has committed a crime within the jurisdiction
of the Court" A person
shall "be informed promptly and in detail of the nature, cause and content
of the charge, in a language which the accused fully understands and speaks."
|
Notification
of rights Prisoners of war facing criminal charges must
be advised of certain rights by the detaining power "in due time before
trial." These are the rights "to assistance by one of his prisoner comrades,
to defense by a qualified advocate or counsel of his choice, to the calling
of witnesses and, if he deems necessary, to the services of a competent
interpreter." Reasons
for detention Charges
A prisoner
of war and his or her counsel must be informed "in good time before the
opening of the trial" of the "[p]articulars of the charge or charges in
a language which he understands." "Prisoners
of war and the Protecting Powers shall be informed as soon as possible
of the offences which are punishable by the death sentence under the laws
of the Detaining Power." Civilians
in occupied territories charged with a criminal offence by the Occupying
Power "shall be promptly informed, in writing, in a language which they
understand, of the particulars of the charges preferred against them."
Right to
have family and friends notified Notice of the arrest of a prisoner of
war on a criminal charge must be given to the Protecting Power, which
has an obligation to inform the prisoner's family and friends of the circumstances.
If the detaining state fails to comply with this requirement, it must
delay the start of the trial. An Occupying
Power shall inform the Protecting Power, and, thus, eventually, the family
and friends, of proceedings in serious case. The trial may not process
if the detailed notice requirements are not fulfilled. |
When a
person "is placed in arrest or confinement prior to trial, immediate steps
shall be taken to inform him of the specific wrong of which he is accused
and to try him or to dismiss the charges and release him." "The person
accused shall be informed of the charges against him as soon as practicable."
"The accused
shall be advised of the charges against him and of his right to be represented
at that investigation ..." |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO PRESUMPTION OF INNOCENCE | "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 ..." Burden
of Proof Fifth Amendment
requires proof beyond a reasonable doubt by a unanimous jury as to every
fact necessary to constitute the crime. |
"Everyone
charged with a criminal offence shall have the right to be presumed innocent
until proved guilty according to law." Burden of Proof: not specified |
"Everyone
shall be presumed innocent until proved guilty before the Court ..." Burden
of Proof The prosecution bears the burden of proof throughout the trial and the accused must not bear any reversal of the burden of proof or any onus of rebuttal. Articles 66(2) & 67(3)(i) Article 74 allows conviction by a majority of judges, although "the judges shall attempt to achieve unanimity in their decision." |
In both international
and non-international conflicts, "anyone charged with an offence is presumed
innocent until proved guilt according to law." Protocol I, Article 75(4)(d) Protocol II, Article 6(2)(d) |
The accused
"must be presumed to be innocent until his guilt is established by legal
and competent evidence beyond reasonable doubt." Burden
of Proof The death penalty cannot be imposed without unanimous agreement. |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO REMAIN SILENT | "No one
shall be ... compelled in any criminal case to be a witness against himself."
The accused
shall be informed of the "right to silence" and the right to "a continuous
opportunity to exercise it." The Supreme
Court has ruled that the government cannot punish a defendant for exercising
his right to silence by allowing the prosecutor to ask the jury to draw
an inference of guilt from the defendant's refusal to testify in his own
defense. |
The accused
has the right "[n]ot to be compelled to testify against himself or to confess
guilt." Article 14(3)(g) |
During
an investigation, the accused has the right "[t]o remain silent, without
such silence being a consideration in the determination of guilt or innocence."
"A person
shall not be compelled to incriminate himself or herself or to confess
guilt." During trial,
an accused has the right to "[n]ot to be compelled to testify or to confess
guilt and to remain silent, without such silence being a consideration
in the determination of guilt or innocence." |
In international
and non-international conflicts, "no one shall be compelled to testify
against himself or to confess guilt." "No moral
or physical coercion may be exerted on a prisoner of war in order to induce
him to admit himself guilty of the act of which he is accused." |
A person
shall not be compelled "to incriminate himself or to answer any question
the answer to which may tend to incriminate him." A person
shall be informed that "he does not have to make any statement regarding
the offense of which he is accused or suspected and that any statement
made by him may be used as evidence against him in a trial by court-martial." |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO LEGAL COUNSEL | "In all criminal
prosecutions, the accused shall enjoy the right ... to have the Assistance
of Counsel for his defense." Sixth Amendment |
A person
shall be entitled "to defend himself in person or through legal assistance
of his own choosing; to be informed, if he does not have legal assistance,
of this right; and to have legal assistance assigned to him, in any case
where the interests of justice so require, and without payment by him in
any such case if he does not have sufficient means to pay for it." Article 14(3)(d) |
"... the
accused shall be entitled ... to communicate freely with counsel of accused's
choosing ..." "... the
accused shall be entitled ... to have legal assistance assigned by the
Court where the interests of justice so require, and without payment if
he accused lacks sufficient means to pay for it; ..." |
A prisoner
of war "shall be entitled to assistance by one of his prisoner comrades,
to defense by a qualified advocate or counsel of his own choice to defense."
When a prisoner of war does not choose a counsel, the counsel will be
appointed. The advocate or counsel conducting the defense on behalf of
the prisoner of war "may, in particular, freely visit the accused and
interviews him in private." "No prisoner
of war may be convicted without having had an opportunity to present his
defense and the assistance of a qualified advocate or counsel." Prisoners
shall "have the right to be assisted by a qualified advocate or counsel
of their own choice, who shall be able to visit them freely and shall
enjoy the necessary facilities for preparing the defense. Failing a choice
by the accused, the Protecting Power may provide him with an advocate
or counsel. When an accused person has to meet a serious charge and the
Protecting Power is not functioning, the Occupying Power, subject to the
consent of the accused, shall provide an advocate or counsel." |
"[D]efense
counsel shall be detailed for each ... court-martial." "The accused
has the right to be represented in his defense before a general or special
court-martial or at an investigation ... The accused may be represented
by civilian lawyer if provided by him" or by a military lawyer of his
choosing if one is reasonably available. Right
to self-representation |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO ADEQUATE TIME AND FACILITIES TO PREPARE A DEFENSE | Fed. R. Crim. P. 16 requires the prosecutor to submit to the defense any books, documents, or tangible material which are "material" to the preparation of the defense. | The accused
shall be entitled "[t]o have adequate time and facilities for the preparation
of his defense and to communicate with counsel of his own choosing." Article 14(3)(b) |
The accused
shall "have adequate time and facilities for the preparation of the defense
..." Rule 77 requires the prosecutor to permit the defense to inspect books, documents, photographs, and other tangible items material to the preparation of the defense or that the prosecution intends to present at trial. Rule 76 requires the prosecutor to provide the names and prior statements of prosecution witnesses in advance of trial. |
Counsel
for prisoners of war are guaranteed "a period of two weeks at least before
the opening of the trial, as well as the necessary facilities to prepare
the defense of the accused," including confidential access to the prisoner
of war and access to defense witnesses, and to "have the benefit of these
facilities until the term of appeal or petition has expired." Procedures
"shall afford the accused before and during his trial all necessary rights
and means of defense." |
R.C.M. 701 requires the prosecution to disclose papers which accompanied the charges, as well as "books, papers, documents, photographs, [and] tangible objects" which are material to the preparation of the defense or are intended for use at trial. R.C.M. 701 requires the prosecution to disclose the names and addresses of prosecution witnesses before the beginning of the trial. |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO SPEEDY TRIAL | The accused
"shall enjoy the right to a speedy trial." Sixth Amendment |
The accused
has the right "[t]o be tried without undue delay." Article 14(3)(c) |
The accused
shall have the right "[t]o be tried without undue delay." Article 67(1)(c) |
Civilians
in occupied territory and prisoners of war shall be brought to trial as
rapidly as possible. Geneva IV, Article 71(2) Geneva III, Article 103(1) |
R.C.M 707 gives the accused the right to a speedy trial, including the right to be brought to trial within 120 days of the referral of charges or the imposition of restraints on liberty. |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO A PUBLIC TRIAL | "In all
criminal prosecutions, the accused shall enjoy the right to a ... public
trial ..." The court
may close portions of the trial, but the party seeking to close the hearing
must advance an overriding interest that is likely to be prejudiced; the
closure must be broader than necessary; the trial court must consider
reasonable alternatives to closing the hearing; and it must make findings
adequate to support the closure. |
"[E]veryone
shall be entitled to a fair and public hearing ... [But] the press and the
public may be excluded from all or part of a trial for reasons of morals,
public order (ordre public) or national security in a democratic society,
or when the interest of the private lives of the parties so requires, or
to the extent strictly necessary in the opinion of the court in special
circumstances where publicity would prejudice the interests of justice."
Article 14(1) |
"The trial
shall be held in public," although closed sessions can be held to protect
vulnerable witnesses or confidential or sensitive informational to be
given in evidence. "In the
determination of any charge, the accused shall be entitled to a public
... [and] fair hearing." |
In international
conflicts, "anyone prosecuted for an offence shall have the right to have
the judgment pronounced publicly." Although
prisoners of war are not explicitly entitled to a public trial, it is
required that representatives of the Protecting Power should be able to
attend, unless, exceptionally, this is held in camera in the interest
of state security. "Representatives
of the Protecting Power shall have the right to attend the trial of any
protected person, unless the hearing has, as an exceptional measure, to
be held ' in camera ' in the interests of the security of the Occupying
Power, which shall then notify the Protecting Power." |
Mil.R.Evid 505 allows the military judge to exclude the public during the portion of the presentation of evidence that discloses classified government information. |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO FREEDOM FROM TORTURE | No "cruel
and unusual punishments [shall be] inflicted." Eighth Amendment |
"No one
may be subjected to torture or to cruel, inhuman or degrading treatment
or punishment. In particular, no one shall be subjected without his free
consent to medical or scientific experimentation." "All persons
deprived of their liberty shall be treated with humanity and with respect
for the inherent dignity of the human person." |
"A person
shall not be subjected to any form of coercion, duress or threat, to torture
or to any other form of cruel, inhuman or degrading treatment or punishment." Article 55(1)(b) |
Detainees
must at all times be treated humanely. Detainees
may not be subjected to any form of "physical or mental coercion" when
questioned. Torture
or inhuman treatment of prisoners of war or civilians in occupied territory
are grave breaches of the Geneva Conventions and are considered war crimes.
Common Article
3 prohibits, "[v]iolence to life and person, in particular murder of all
kinds, mutilation, cruel treatment and torture; ... [and] outrages upon
personal dignity, in particular humiliating and degrading treatment."
Persons
not covered by the Geneva Convention are protected by Article 75 of Protocol
I which prohibits "torture of all kinds, whether physical or mental,"
"corporal punishment," and "outrages upon personal dignity, in particular
humiliating and degrading treatment, ... and any form of indecent assault."
|
"No person,
while being held for trial, may be subjected to punishment or penalty
other than arrest or confinement upon the charges pending against him,
nor shall the arrest or confinement imposed upon him be any more rigorous
than the circumstances required to insure his presence, but he may be
subjected to minor punishment during that period for infractions of discipline."
Military
personnel who mistreat prisoners can be prosecuted by a court-martial.
|
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| EXCLUSION OF ILLEGALLY OBTAINED EVIDENCE | When evidence
is obtained in violation of the Fourth Amendment, the judicially developed
exclusionary rule usually precludes its use in a criminal proceeding against
the victim of the illegal search and seizure Fifth Amendment prohibits evidence obtained by coercion. Brown v. Mississippi, 297 U.S. 278, 286 (1936) Prosecution has the burden of proving that a statement was voluntarily made. |
Not specified, but Article 7 prohibits "torture or [] cruel, inhuman or degrading treatment or punishment." | "Evidence
obtained by means of a violation of this Statute or internationally recognized
human rights shall not be admissible ..." Article 69(7) |
Not specified. | "[N]o
statement obtained ... through the use of coercion, unlawful inducement
may be received in evidence against him in a trial by court-martial."
Mil. R. Evid. 304 prohibits admission of an involuntary statement and derivative evidence, although the statement can be admitted for impeachment purposes if it was involuntary only on the grounds of technical noncompliance with warnings about the right to counsel. Mil R. Evid. 304(e) states that the prosecution has the burden of establishing that a statement was voluntarily made. |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO EQUALITY BEFORE THE LAW AND COURTS | "... nor
deny to any person within its jurisdiction the equal protection of the laws."
Fourteenth Amendment |
"All persons
shall be equal before the courts and tribunals ..." "All persons
are equal before the law and are entitled without any discrimination to
the equal protection of the law. In this respect, the law shall prohibit
any discrimination and guarantee to all persons equal and effective protection
against discrimination on any ground such as race, color, sex, language,
religion, political or other opinion, national or social origin, property,
birth or other status." |
A person
shall be entitled to a hearing conducted "in full equality." Article 67(1) |
Prisoners
of war must be tried before the same courts and according to the same
procedures as the personnel of the detaining state, and must not received
more severe sentences: Discriminatory
treatment is prohibited on the basis of "race, color, sex, language, religion
or belief, political or other opinion, national or social origin, wealth,
birth or other status, or on any other similar criteria", whether the
relevant conflict is international or non-international: |
Not specified. |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO TRIAL BY A COMPETENT, INDEPENDENT AND IMPARTIAL TRIBUNAL ESTABLISHED BY LAW | Article III provides for federal judges to be nominated by the President and confirmed by the Senate, with life tenure. Fifth Amendment protects the right to a fair, impartial judge. |
"Everyone
shall be entitled to a fair and public hearing by a competent, independent
and impartial tribunal established by law." Article 14(1) |
"The judges
shall be chosen from among persons of high moral character, impartiality
and integrity who possess the qualifications required in their respective
States for appointment to the highest judicial offices." "The Court
may base its decision only on evidence submitted and discussed before
it at the trial." In the determination
of any charge, the accused shall be entitled a fair hearing conducted
impartially." |
Trials must afford "all the judicial guarantees which are recognized as indispensable by civilized peoples." Common Article 3 (1)(d) In the case
of international armed conflict, all persons shall be tried in an "impartial
and regularly constituted court respecting the generally recognized principles
of regular judicial procedure." In non-international
armed conflict, the court must offer "the essential guarantees of independence
and impartiality ..." "No sentence
shall be pronounced by the competent courts of the Occupying Power except
after a regular trial." "Such persons
[in Occupied territories] ... shall not be deprived of the rights of fair
and regular trial ..." |
A court-martial
shall be made up of "a military judge and not less than five members."
Judge and
members may not be the accuser or a witness for the prosecution or acted
as investigating officer or as counsel in the same case. Defense counsel must be a judge advocate (Article 27(b)(1)) and cannot have worked on the investigation or for the prosecution. (Article 27(a)(2)) "A military
judge shall be a commissioned officer of the armed forces who is a member
of the bar of a Federal court or a member of the bar of the highest court
of a State and who is certified to be qualified for duty as a military
judge by the Judge Advocate General of the armed force of which such military
judge is a member." "The military
judge of a court-martial may not consult with the members of the court
except in the presence of the accused, trial counsel, and defense counsel,
nor may he vote with the members of the court." "Pretrial,
trial, and post trial procedures, including modes of proof ... may be
prescribed by the President by regulations which shall, so far as he considers
practicable, apply the principles of law and the rules of evidence generally
recognized in the trial of criminal cases in the United States district
courts, but which may not be contrary to or inconsistent with this chapter.
All rules and regulations made under this article shall be uniform insofar
as practicable and shall be reported to Congress." "Unlawfully
influencing action of the court" is prohibited. |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| PROHIBITION AGAINST RETROACTIVE (EX POST FACTO) LAWS | "No Bill
of Attainder of ex post facto law shall be passed." Art. I, sec. 9, cl. 3 |
"No one shall
be held guilty of any criminal offence on account of any act or omission
which did not constitute a criminal offence, under national or international
law, at the time when it was committed. Nor shall a heavier penalty be imposed
than the one that was applicable at the time when the criminal offence was
committed. If, subsequent to the commission of the offence, provision is
made by law for the imposition of the lighter penalty, the offender shall
benefit thereby." Article 15(1) |
"A person
shall not be criminally responsible under this Statute unless the conduct
in question constitutes, at the time it takes place, a crime within the
jurisdiction of the Court." Article 22 (1) |
In international
and non-international conflicts no one "shall be accused or convicted
of a criminal offence on account of any act or omission which did not
constitute a criminal offence under the national or international law
to which he was subject at the time when it was committed ...". Prisoners
of war may not be tried for an act which was not criminal under national
law or international law at the time it occurred. For civilians
"courts in occupied territory "shall apply only those provisions of law
which were applicable prior to the offence". |
The application
of UCMJ article 58(b) to offenses preceding its enactment violates the ex
post facto principle. U.S. v. Gorski, 47 M.J. 370 (1997) |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| PROTECTION AGAINST DOUBLE JEOPARDY | "No one shall
be ... subject for the same offense to be twice put in jeopardy of life
or limb." Fifth Amendment |
"No one shall
be liable to be tried or punished again for an offence for which he has
already been finally convicted or acquitted in accordance with the law and
penal procedure of each country." Article 14(7) |
"No person
who has been tried by another court ... shall be tried by the Court with
respect to the same conduct ..." Article 20 |
In international
armed conflicts, "no one shall be prosecuted or punished by the same Party
for an offence in respect of which a final judgment acquitting or convicting
that person has been previously pronounced under the same law and judicial
procedure". "[N]o prisoner
of war may be punished more than once for the same act or on the same
charge." |
"No person
may, without his consent, be tried a second time for the same offense."
UCMJ, Article 44 |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO BE PRESENT AT TRIAL | Sixth Amendment protects the accused's right to be present at his trial. Fed. R. Crim. P. 43(a) prohibits the trial in absentia of a defendant who is not present at the beginning of trial, but a defendant may be convicted in absentia if she disappears after the trial begins. "One of
the most basic of the rights guaranteed by the Confrontation Clause is
the accused's right to be present in the courtroom at every stage of his
trial." When defendant
knowingly absents himself from court during trial, court may "proceed
with trial in like manner and with like effect as if he were present."
The language,
history, and logic of Rule 43 support a straightforward interpretation
that prohibits the trial in absentia of a defendant who is not present
at the beginning of trial. |
The accused
shall be entitled "[t]o be tried in his presence." Article 14(3)(d) |
"The accused
shall be present during trial," but if the accused disrupts the trial, the
court "may remove the accused and shall make provision for him or her to
observe the trial and instruct counsel from outside the courtroom, through
the use of communications technology, if required. Such measures shall be
taken only in exceptional circumstances after other reasonable alternatives
have proved inadequate, and only for such duration as is strictly required."
Article 63 |
In both international
and non-international conflicts, "anyone charged with an offence shall have
the right to be tried in his presence." Protocol I, Article 75(4)(e) Protocol II, Article 6(2)(e) |
All proceedings
except deliberations and the vote "shall be conducted in the presence
of the accused, the defense counsel, and the trial counsel." Mil. R. Evid. 507 provides that the identities of informants can be withheld from the accused, although the military judge must order the disclosure of the identity of the informant if it is necessary to the accused's defense on the issue of guilt or innocence. If the prosecution chooses to call the informant as witness, then this identity must be disclosed. |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO CALL AND EXAMINE WITNESSES | "The accused
shall enjoy the right ... to be confronted with the witnesses against him;
to have compulsory process for obtaining witnesses in his favor." Sixth Amendment |
The accused
shall the right "[t]o examine, or have examined, the witnesses against him
and to obtain the attendance and examination of witnesses on his behalf
under the same conditions as witnesses against him." Article 14(3)(e) |
The accused
shall have the right "[t]o examine, or have examined, the witnesses against
him or her and to obtain the attendance and examination of witnesses on
his or her behalf under the same conditions as witnesses against him or
her." Article 67(1)(e) |
For offences
connected to an international conflict, "anyone charged with an offence
shall have the right ... to obtain the attendance and examination of witnesses
on his behalf under the same conditions as witnesses against him" and
"to examine, or have examined, the witnesses against him." "The prisoner
of war shall be entitled to ... the calling of witnesses." "Accused
persons shall have the right to present evidence necessary to their defense
and may, in particular, call witnesses." |
"The trial
counsel, the defense counsel, and the court-martial shall have equal opportunity
to obtain witnesses." "At that
investigation full opportunity shall be given to the accused to cross-examine
witnesses against him if they are available and to present anything he
may desire in his own behalf, either in defense or mitigation, and the
investigation officer shall examine available witnesses requested by the
accused." R.C.M. 703 gives both parties the right to compulsory process. Mil. R. Evid. 403 allows the judge to exclude evidence, even if relevant, if its probative value is outweighed by the danger of unfair prejudice or confusion on the issues, or if it would cause undue delay, waste time, or represent needless presentation of cumulative evidence. |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO AN INTERPRETER AND TO TRANSLATION | An indigent
criminal defendant who cannot speak or understand English is constitutionally
entitled to an interpreter and translation of the evidence. Negron v. New York, 434F.2d 286 (2d Cir. 1970) |
The accused
shall "have the free assistance of an interpreter if he cannot understand
or speak the language used in court." Article 14(3)(f) |
A person
"shall, if questioned in a language other than a language the person fully
understands and speaks, have, free of any cost, the assistance of a competent
interpreter and such translations as are necessary to meet the requirements
of fairness." A person
shall "have, free of any cost, the assistance of a competent interpreter
and such translations as are necessary to meet the requirements of fairness,
if any of the proceedings of or documents presented to the Court are not
in a language which the accused fully understands and speaks." |
A prisoner
of war "shall be entitled ... if he deems necessary, to the services of
a competent interpreter." "The questioning
of prisoners of war shall be carried out in a language which they understand."
"Accused
persons shall, unless they freely waive such assistance, be aided by an
interpreter, both during preliminary investigation and during the hearing
in court. They shall have the right at any time to object to the interpreter
and to ask for his replacement." |
"The convening
authority of a court-martial, military commission, or court of inquiry may
detail or employ interpreters who shall interpret for the court or commission."
UCMJ, Article 28 |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO A PUBLIC, REASONED JUDGMENT WITHIN A REASONABLE TIME | "In all
criminal prosecutions, the accused shall enjoy a speedy and public trial"
Sixth Amendment |
"... any
judgment rendered in a criminal case or in a suit at law shall be made public
except where the interest of juvenile persons otherwise requires or the
proceedings concern matrimonial disputes or the guardianship of children."
Article 14(1) |
"The sentence
shall be pronounced in public and, wherever possible, in the presence of
the accused." Article 76(4) |
"Anyone
prosecuted for an offence shall have the right to have the judgment pronounced
publicly." Protocol I, Article 75(4)(i) |
"A court-martial
shall announce its findings and sentence to the parties as soon as determined."
UCMJ, Article 53 |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT NOT TO BE SUBJECTED TO UNLAWFUL PUNISHMENTS | "Excessive
bail shall not be required, nor excessive fines imposed, nor cruel and unusual
punishments inflicted." Eighth Amendment |
"Nor shall
a heavier penalty be imposed than the one that was applicable at the time
when the criminal offence was committed. If, subsequent to the commission
of the offence, provision is made by law for the imposition of the lighter
penalty, the offender shall benefit thereby." Article 15(1) |
"In determining
the sentence, the Court shall ... take into account such factors as the
gravity of the crime and the individual circumstances of the convicted person" Article 78(1) |
"Prisoners
of war may not be sentenced by the military authorities and courts of the
Detaining Power to any penalties except those provided for in respect of
members of the armed forces of the said Power who have committed the same
acts." Geneva III, Article 87 |
|
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RIGHT TO APPEAL | Convicted person has the right to de novo review of decisions of law, and review of findings of fact for substantial evidence. Review is also available through the writ of habeas corpus. |
"Everyone
convicted of a crime shall have the right to his conviction and sentence
being reviewed by a higher tribunal according to law." "When a
person has by a final decision been convicted of a criminal offence and
when subsequently his conviction has been reversed or he has been pardoned
on the ground that a new or newly discovered fact shows conclusively that
there has been a miscarriage of justice, the person who has suffered punishment
as a result of such conviction shall be compensated according to law,
unless it is proved that the non-disclosure of the unknown fact in time
is wholly or partly attributable to him." |
"The convicted
person, or the Prosecutor on that person's behalf, may make an appeal."
Article 81(b) See also Article 39 |
Prisoners
of war have the same right of appeal as members of the armed forces of
the Detaining Power and they must be informed of that right. "A convicted
person shall be advised on conviction of his judicial and other remedies
and of the time-limits within which they may be exercised". For non-international
conflicts, Additional Protocol II contains an identically worded guarantee.
"A convicted
person shall have the right of appeal provided for by the laws applied
by the court." |
Article 66 provides right to review of questions of law by three-judge appellate panel of the Court of Military Review. Article 67 provides right to review of death sentences before the Court of Military Appeals; certiorari review is available for all other cases. Certiorari review available before the Supreme Court |
| U.S. Constitutional Law and Federal Law | International Covenant on Civil and Political Rights | Rome Statute of the International Criminal Court | 1949 Geneva Conventions and 1977 Protocols | Uniform Code of Military Justice -- General Courts-Martial | |
| RESTRICTION ON RIGHTS FOR NATIONAL SECURITY REASONS | The Classified Information Procedures Act (CIPA) provides that a judge may order that a discoverable document that also contains nondiscoverable classified information can be edited, summarized, or redacted if doing so does not prejudice the accused. Discoverable informational may not be withheld. |
"[The right
to freedom of expression] may therefore be subject to certain restrictions,
but these shall only be such as are provided by law and are necessary ...
(b) For the protection of national security" Article 19(3) |
Rule 72 permits a State, acting in conjunction with the prosecutor, to seek to withhold information that would prejudice its national security interests. If the Court cannot obtain permission to disclose the evidence, and the Court determines that the evidence is relevant or necessary for the establishment of guilt or innocence, the Court may "make such inference in the trial of the accused as to the existence or non-existence of a fact, as may be appropriate in the circumstances." |
"... A prisoner
of war shall not be confined while awaiting trial unless a member of the
armed forces of the Detaining Power would be so confined if he were accused
of a similar offence, or if it is essential to do so in the interests of
national security. In no circumstances shall this confinement exceed three
months." Geneva III, Article 103 |
Mil. R. Evid. 505(g) allows the government to apply in camera for relief from disclosure of classified or national security information. The government must provide notice of the kind of information that will be at issue. The military judge may delete classified information, substitute a summary, or substitute a statement admitting relevant facts, unless the disclosure of the actual information is "necessary to enable the accused to prepare for trial." |
1 International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171
2 Rome Statute of the International Criminal Court, 2187 U.N.T.S. 3, entered in force July 1, 2001, and Rules of Procedure and Evidence, U.N. Doc. PCNICC/2000/1/Add.1 (2000)
3 Geneva Convention relative to the Treatment of Prisoners of War, Aug. 12, 1949, 75 U.N.T.S. 135 (Third Geneva Convention); Geneva Convention relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 75 U.N.T.S. 287 (Fourth Geneva Convention); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, Dec. 12, 1977, 1125 U.N.T.S. 3 (Protocol I); Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts, Dec. 7, 1978, 1125 U.N.T.S. 609 (Protocol II).
4 Uniform Code of Military Justice, 10 U.S.C. 801 et. seq.; and the Manual for Courts Martial (MCM)