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Vol 23 No 5 May/June 2018

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A Comparison of a Citizen's Right to Silence Under American and English Political Systems

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ISBN13: 9780773463479
ISBN: 077346347X
Published: July 2006
Publisher: The Edwin Mellen Press Ltd
Format: Hardback
Price: Out of print

This book provides a comprehensive examination of the nuances of U.S. Constitutional law and based similar judicial system. This book provides a comprehensive examination of the nuances of U.S. Constitutional law and a closely based similar judicial system. The variances in the political systems of each country are paramount because they provide the foundations for the umbrella of protections granted. Within each political system resides feedback controls that are useful for the indicators they employ for lawful application of the laws; specifically, the oversight concomitant with ""judicial review."" It is both descriptive and analytical in its approach employing both historical perspectives and current pragmatic possibilities. Newly advanced scientific and psychological realities push and pull at the political fabric of the intents of both Parliament and the U.S. Constitution. Legal positions never envisioned even fifty years ago, much less in 1789, present instances that threaten the fairness of the trial itself. This is evidenced by the situation of a defendant with a Multiple Personality Disorder and the ""right to remain silent."";The historical perspective sets the stage for the need for confessions by describing the limitations of religious and cultural methods employed by tribes and cults in their quest for answers. This progression through the pages of legal evolution demonstrates that the practitioners searched diligently for a realistic approach to determine the facts for legal resolution. Also of interest is when the threshold of psychological stress breaches the parameter of ""coercion."" Where should the guidelines be located: the tolerable (legal) limits differ from subject to subject. The maturity, education and religious makeup of the subject all play a part in determining how much coercion can be considered lawful. The excursion into the early attempts at determining truth are well sited to prepare the reader for the task at hand. The present day exposures to recent developments in the sciences is causing the legal system to include these advances in both the civil and criminal applications of the law. This book is mainly concerned with the criminal issues but it was necessary at times to put forth the civil cases for illustration.;The broad legal interpretations of civil law allow for juridical examination for assessing its appropriate application to its criminal cousin. To adequately explain the complex nature of the protection under scrutiny in a democracy, the author has attempted to integrate the most important theoretical foundations, research findings and contemporary practices in a comprehensible and analytical fashion. These findings contain such diverse areas as the use of polygraphs, psychologically created legal entities, and prescribed methods for political remedy if the law is deemed insufficient in purpose, and in need of revision or deletion. The inclusion of research into various indicators of population support, through the use of polls and surveys, assists the reader in understanding how the construction of the law, and its methods of alteration, can help the population to be protected from itself. Extensive documentation is included for those desiring to conduct additional research in this area. With the creation of new nation states this research would prove useful in designing a critical portion of a legal system based upon political action.;However, although the book is written from a researcher's aspect the casual reader will find this book to be easily understood. The legal positions are explained not from an attorney's viewpoint but from that of a layman. The information contained therein allows for those of various interests to garner portions for their own purposes. Although both countries share a common language, in some instances this commonality is what separates them. In those instances when this might be the case, the author provides needed direction for interpretation to allow the reader to easily follow the train of the political or legal direction. Of note are the instances of thought provoking possible scenarios that at first blush appear to be included for the sake of humor, but on reflection, they demonstrate the complexities of legal issues being interwoven by other disciplines. Human nature being what it is, critical events in the lives of citizens are dictated by the political engines driven by the populations involved. The adversarial process dictates that all possibilities be examined in the process of a fair trial.;This can at times appear to stretch and massage the laws of judicial process in areas never previously contemplated. The reader will be pleased to note that many examples are presented indicating that this work was not lax in its endeavor to be comprehensive within its narrow scope of examination. The overriding issue of importance is the ""warning"" or Miranda warning differences between the United States and Britain. Each approach the issue from slightly varying perspectives. Is one warning better than the other? What are the consequences of remaining silent under the two systems? Can the police continue to question in spite of the protection invoked by the suspect? These weighty concerns should be of interest to those individuals striving to create or modify a country's constitution. Political acceptance by the population is predicated upon a belief in a document that will provide a strong measure of protection to the citizenry. This comparison, not only of political fundamentals, but the applications of its laws and their protections, are the bedrock of a country's stability.;This stability then provides for the encouragement of economic growth with the by-product of a content population. And lastly, how difficult would it be to remove this provision of protection under either political system? Herein perhaps lies the true measure of the protection offered. For if the protection declared can be voided by decree then the protection is tenuous at best. On the other hand, if the process is long and involved, then emotion can be removed from the eradication equation and reason can then win the day. Julian Roebuck, Ph.D. Jonesboro, Georgia December 2003

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List Of Tables x
Chapter; 1. Introduction 1; Statement of Problem 1; Research Plan 8; Terms Encountered 11; British Law 12; Interview 12; Voire Dire 12; United States Law 12; Voir Dire 12; Interview 12; Interrogation 12; Custodial Interrogation 13; Inquisitorial System 13; Accusatorial System 13; Functions and Structures 13; Political Culture 15; Literature Review 16; 2. United States And English Law Under Judicial Review 25; United States 26; England 28; Framers' Intent 31; Judicial Restraint 33; Democratic Checks 34; Public Opinion 34; Role of the Court 35; United States Case Law and Supreme Court Decisions 40; 3. Early Methods Of Fact Finding 43; Ordeals of Combat 44; Compurgation 45; The Early ""Bill of Rights"" 53; 4. The Right To Silence Under United States Law 57; Non-Testimonial Self-Incrimination 58; Miranda and Escobedo 61; State Compelled Self-Incrimination 65; Public Expectations of the Government 69; The Use of Psychology in Interrogation 71; At what Risk to Remain Silent? 72; Immunity and Self-Incrimination 74; The Accused 74; The Witness 74; Multiple Personalities and Self-Incrimination 78; Miranda and its Effects 79; Before and After Studies 82; 5. English Law And Suspects' Rights 85; ""Miranda - English Style 86; Civil and Criminal Law 87; Non-Testimonial Self-Incrimination 89; Multiple Personality Disorder 94; Immunity and English Law 94; The ""New"" Caution 95; Areas of Concern 98; 6. The Supreme Court's Ruling And The Bill Of Rights 105; 7. Public Attitudes Concerning The Right To Silence 117; United States Polls and Surveys 120; Polls and Surveys - England 125; 8. Conclusion 129; Is There an Alternative? 130; Appendix; 1. The Use Of Immunity 145; Pocket Immunity 145; Federal Statutory Immunity 145; Compelled or Forced Testimony 146; 2. The Privilege Against Self-Incrimination 147; Immunity and the Privilege Against Self-Incrimination 148; Statutes that Grant Immunity 148; 3. Areas Where Fifth Amendment Privilege Against Self-Incrimination Does Not Apply 149; 4. England - Self Incrimination 151; 5. England - Withdrawal Of Privilege Against Incrimination Of Self Or Spouse In Certain Proceedings 153; 6. England - Privilege Against Incrimination Of Self Or Spouse In Certain Proceedings 155; Bibliography 157; Table; 1. Decision of the Supreme Court Overruled and Acts of Congress Held Unconstitutional, 1789-1988; and State Laws and Municipal Ordinances Overturned, 1789-1988 27; 2. Questioning Result by Length of Questioning 80; 3. Questioning Result by Strength of Evidence 81; 4. Estimates of Changes in the Confession Rate Due to Miranda 83; 5. Confession Rates in Britain Prior to Pace 1984 103; 6. Validity of Examiners' Decisions 133; 7. Reliability of Blind Chart Analysis 136