American Criminal Procedure Vs. East Asia
...ates criminal procedure will be explored as a comparison is made to the countries that comprise the ¡§Far East¡¨. V. Japan Criminal Procedure The Japanese criminal justice process mirrors that of the United States. This is because after World War II, the government of Japan set out to formulate a new constitution and used the German, French and U.S. criminal codes as guides. The rights of the accused are spelled out in the articles of the Japanese Constitution. Some of these articles in review are: „h Article 31. ¡§No person shall be derived of life or liberty, nor shall any other penalty be imposed, except according to procedure established by law,¡¨ „h Article 33; ¡§no person shall be arrested except upon a warrant issued by a competent judicial official, which specifies the offense with which a person is charged¡K¡¨. „h Article 34 protects persons from illegal confinement. „h Article 35 protects persons from illegal deprivation of residence and property. (Moriyana, 2003) Moriyana writes, ¡§Provisions directly governing trial proceedings provide that admissions of testimony must be compelling. There are also rights guaranteeing a speedy and public trial, full opportunity to examine all witnesses, and legal counsel by lawyers employed by the state if the accused cannot afford a private lawyer. In addition, a person cannot incur criminal liability if the act was lawful at the time it was committed, and cannot be subject to conviction for the same crime twice (double jeopardy). *Assistance to the accused. The state must provide legal counsel if the defendant cannot afford a private lawyer¡¨ (Moriyana, 2003). As stated above, these sound very similar to those rights of criminal defendants in the United States. Despite the similarities, there are large differences from that of the U.S. The jury system that Americans are accustomed to is none existent in Japan. This means that a judge (the court) is solely responsible for trying the facts of a criminal case. Also, the conviction rate is very large, ¡§In comparison to other countries in the developed world, Japan has a unique prosecutorial system. 99 percent of criminal defendants are convicted in Japan, and almost all are convicted following their own confession. Prosecutors tend to bring charges only when they have a signed confession from the accused, and such confessions often occur after long questioning by police¡¨ (Wikipedia, 2005). A criminal defendant may not enter a guilty plea. The burden of proof is on the prosecutor regardless of how a defendant wants to plea. As far as sentencing is concerned, the courts are the investigating body considering facts presented by both sides. There are no pre-sentencing reports or probation officers. Six types of penalties comprise the punishment phase of Japanese criminal procedure. These are; the death penalty, imprisonment with and without labor, major fines (greater than 10,000 yen), minor fines (less than 10,000 yen) and penal detention (less than 30 days). The manors of punishments are similar to the United States, with the exception of the death penalty. While in the U.S., defendants may ¡§enjoy¡¨ several types of death from electric chair to lethal injection, the method for execution in Japan is hanging. Moriyana writes that there are also supplementary penalties ¡§such as the forfeiture or confiscation of physical objects used in the commission of offenses or obtained as a result of the crime¡¨ (Moriyana, 2003). VI. China Criminal Procedure The legislatures of China view criminal laws as part of the ruling class to be used to rule those under its authority in a Marxist type environment. Guo states ¡§The criminal law represents the interests of the ruling class, which defines certain acts as crime¡¨ (Guo 1990). This is in clear contrast to the American system of criminal procedure in that, the U.S. Constitution is designed to insure that all persons receive the same due process, regardless of what class of citizen they represent. Some blatant similarities and differences exist in the use of force policy adopted by the U.S. federal government (and most state and local departments) and the Chinese use of force policy for its national criminal police. This is in relation to how criminal suspects are treated during apprehension. Guo writes ¡§Use of force. The criminal police carry pistols, batons, and handcuffs when performing their duties. They are permitted to use guns to stop a crime or defend themselves. Specifically, they can use deadly force as a last resort to stop situations where 1) the offender tries to resist or escape apprehension, steals weapons carried by police, or attacks police officers while being arrested or detained; (2) the offender is in the process of committing a violent crime and putting citizens¡¦ lives in danger; (3) the offender is attacking an object under guard by the police; (4) a group of offenders raid a prison and/or prisoners are escaping, rioting, murdering, or stealing guns from security officers; or (5) the offender physically threatens the life of a police officer. Before using their pistols, they must issue an oral warning or fire a warning shot. Only when these warnings do not affect the criminal behavior, can police fire the pistol¡¨ (Guo 1990). American police are permitted to use force against a suspect if they feel that their life or an innocent bystander/s life is in danger or in danger of serious bodily harm. This is similar to Chinas policy. They differ in that American police are generally not permitted to use deadly force against a suspect because the suspect tries to escape (unless the suspect is known to be a grave danger to society). Another difference is that American officers are not generally allowed to fire warning shots before using deadly force on a suspect. As far as representation is concerned, similarities to the U.S. system can be found in that suspects may authorize lawyers, or others to represent them in criminal proceedings. A difference of the two forms, in representation, is that a defendant may direct the chief judge to ask certain questions of witnesses. American defendants share no similar right. The process leading up to trial is similar to the U.S. process in that, the police initiate the investigation. After the investigation is over the police review and decide whether to proceed. The case is then sent to a procuriate (who acts as a district attorney) to review and decide if the case merits prosecution. A difference in this respect is that the procuriate is an independent entity in this process, unlike the U.S. district attorneys who are an engrained part of the courtroom workgroup and answer, ultimately, to the state attorney general. The sentencing phase for criminals is also similar to that of the U.S. A judge and two ¡§peoples representatives¡¨ comprise a panel that makes determinations of sentences for criminals. Criminal penalties are similar to the U.S. in that penalties are based on the severity of the crime, amount of damage done, etc¡K A difference is that criminals are also ordered to pay restitution for the crimes committed, it is often a secondary, if imposed at all, punishment in the U.S. VII. Vietnam Criminal Procedure Suspected criminals in Vietnam will be subjected to a system of Marxist ideas and a general lack of respect for the judicial process. One reason for this is that ¡§The system imposes on the individual and the state the responsibility of bringing all members of society to a condition of self-imposed moral rectitude in which behavior is defined in terms of collective, rather than individual, good. In contrast to the West, where law is the guarantee of rights that all may claim, in Vietnam the law concerns duties that all must fulfill¡¨ (Congress, 1987). This means that the system of justice is not concerned with insuring that the individual rights and privileges are protected, more so than the rights of the society. This does not bode well for individual suspects compared to the United States. Most districts have a Ministry of Interior records. This is were an individual is taken when arrested. Here, they are fingerprinted and interrogated, and records checks are performed. ¡§The Government continued to arrest and detain citizens arbitrarily, including arrest and detention for the peaceful expression of their political and religious views. The Criminal Procedure Code provides for various rights of detainees, including time limits on pretrial detention and the right of the accused to have a lawyer present during interrogation; however, in practice the authorities often ignored these legal safeguards¡¨ (State, 2000). This is in contrast to the U.S. in that any action taken by police during an investigation, without the suspects lawyer present, if the suspect wishes, is a violation of constitutional rights. This will have large consequences on the case. Convicted suspects will have factors influencing the sentencing decision that are similar to those considered in the U.S. These include whether the crime was committed more out of passion or premeditation. However, this involves the type of crime specifically, meaning ¡§stabbing is treated more leniently than murder by poison¡Kbecause the latter is perceived to require a greater degree of premeditation than the former¡¨ (Congress, 1987). Convicted criminals of most crimes will be involved in a system that concentrates more on rehabilitation than incarceration. This is due to the financial condition of the districts, prison space, etc¡K more so than the rehabilitative ideals of the justice process. Unlike the U.S., political crimes are treated much more harshly and with swift justice. This is in relation to the U.S. were most political actions or ideas are not criminal, and certainly would not invoke the quick and often brutal punishment of ¡§dissident¡¨ political behavior in Vietnam. As of April 14th, 1997, Prime Minister Vo Van Kiet introduced the Administrative Detention Directive. What this does is reinforce the tool of Administrative Detention. What makes this so dangerous, especially for those considered to be political opponents is ¡§Directive 31/CP authorizes village-level People¡¦s Committee and Public Security officials to detain individuals without trial for between six months and two years. Article 2 of Directive 31/CP states that ¡§administrative detention applies to those individuals considered to have violated the laws, infringing on the national security, as defined in Chapter 1 of the Criminal Code, but [whose violation] is not serious enough to be prosecuted criminally.¡¨ Because there is no criminal prosecution, the detainee is not brought to trial and therefore has no opportunity for legal defense¡¨ (Rights, 1997) The fact that a person can be incarcerated with no trial or inclination for a defense fly¡¦s in the face of everything that a democracy like the U.S. holds precious to its citizens. Because of the poor economic status of Vietnam, suspected criminals in remote areas may only have the military police forces to present cases of innocence to and plead cases. In these cases, the military police may be the judge and jury to decide the fate of a suspect after their investigation. The following is presented by the U.S. State Department, ¡§The law prohibits physical abuse; however, police beat persons, including suspects during arrests, and also beat street children in their attempts to get them off the streets. There were no known reports of torture of detainees. Little information is available on the extent of police brutality during interrogations¡¨ (State, 2000). This is a representation of what a suspect may face in search of criminal justice in Vietnam. VIII. North Korea Criminal Procedure ¡§Amnesty International is concerned at recent reports that North Koreans held in some places of detention are given little or no food and that many die as a result of starvation and disease. Food shortages have led many people to leave their locality and seek food elsewhere in the country. Since 1997 the North Korean authorities are reported to have established makeshift detention centers to hold homeless people and those who have left their locality or tried to leave the country in order to seek food. Children are also reported to have been detained in such institutions. Most of these reports of abuses have been gathered from aid workers and foreign journalists who interviewed North Koreans in China¡¨ (Post, 1999). With this kind of environment facing its citizens, is it conceivable to think that a criminal suspect would receive the same kind of du...