Talossan Criminal Code: an outline

[Baron Alexandreu Davinescu]

Okay, different approach, for all felonies and serious misdemeanours we require a preliminary hearing of some kind?

That's the "reasonable chance" part of the trial I've been referencing: "The courts shall consent to hear no case until presented with written evidence by the Prosecution proving to a majority of court members that a reasonable chance of obtaining a conviction actually exists."  The revisions of the Still Into This Amendment stripped that protection from defendants on the constitutional level, unfortunately, but it's still in the statutes in a new formal form.

As I said before, though, it would be great to formalize it to a higher standard:

I could be persuaded that we need to reform trial procedure in its entirety and put more scrutiny on all indictments in general at the "reasonable chance" stage.  And speaking of, we should probably work up a Miranda list for Talossa: a notice that the Government is required to send to all of the accused, notifying them of their rights, the availability of a public defender, where to find relevant laws, etc.

The current protections and procedure are at Lex.G.6, by the way.

[Miestră Schivă, UrN]

"The courts shall consent to hear no case until presented with written evidence by the Prosecution proving to a majority of court members that a reasonable chance of obtaining a conviction actually exists."

Right, but you want something stronger than that, you want a preliminary hearing where it's not just the Prosecution presenting the evidence, but the accused/Public Defender can challenge it. Have I got that right?

So how's about this cut-and-paste job from Wisconsin Statutes 970:

1. A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony or a serious misdemeanour has been committed by the defendant.

2. The preliminary examination shall be commenced within 20 days after the receipt by a Cort of a charging instrument alleging a felony or serious misdemeanour, as described in El Lexhatx G.6.2.

3. A plea shall not be accepted in any case in which a preliminary examination is required until the defendant has been bound over following preliminary examination or waiver thereof.

4. The defendant, or their Public Defender, may cross-examine witnesses against the defendant, and may call witnesses on the defendant's own behalf who then are subject to cross-examination.

5.. If the court finds probable cause to believe that a felony or serious misdemeanour has been committed by the defendant, it shall bind the defendant over for trial.

6. If the court finds that it is probable that only a misdemeanour has been committed by the defendant, it shall amend the complaint to conform to the evidence. The action shall then proceed as though it had originated as a misdemeanour action.

7. If the court does not find probable cause to believe that a crime has been committed by the defendant, it shall order the defendant discharged forthwith.

If this isn't good enough, can you write something that is? I'm helping birth a baby in the next few days.

[GV]

Such a fine could be 'paid' by way of a contribution to any non-religious charitable organization with proof of contribution being sufficient as the 'fine' having been 'paid'.

Making this a general rule seems like it could lead to problems, with people deliberately donating to abhorrent causes to "stick it" to those who force them to pay a penalty.  Maybe it might make more sense to adapt it into a provision in the law which directs that BHAID issue recommendations on what part of a fine might be donated by the state and to which charities, where they deem appropriate?  Same result with more flexibility and less risk.
[/quote]

Three specific charities could be chosen in advance by Talossa for all manner of charitable-donations-by-Talossans.

One thing we must keep in mind is what Ben Madison at his best wanted Talossa to always remain as: free, fun, and fair.

[Baron Alexandreu Davinescu]

"The courts shall consent to hear no case until presented with written evidence by the Prosecution proving to a majority of court members that a reasonable chance of obtaining a conviction actually exists."

Right, but you want something stronger than that, you want a preliminary hearing where it's not just the Prosecution presenting the evidence, but the accused/Public Defender can challenge it. Have I got that right?

So how's about this cut-and-paste job from Wisconsin Statutes 970:

1. A preliminary examination is a hearing before a court for the purpose of determining if there is probable cause to believe a felony or a serious misdemeanour has been committed by the defendant.

2. The preliminary examination shall be commenced within 20 days after the receipt by a Cort of a charging instrument alleging a felony or serious misdemeanour, as described in El Lexhatx G.6.2.

3. A plea shall not be accepted in any case in which a preliminary examination is required until the defendant has been bound over following preliminary examination or waiver thereof.

4. The defendant, or their Public Defender, may cross-examine witnesses against the defendant, and may call witnesses on the defendant's own behalf who then are subject to cross-examination.

5.. If the court finds probable cause to believe that a felony or serious misdemeanour has been committed by the defendant, it shall bind the defendant over for trial.

6. If the court finds that it is probable that only a misdemeanour has been committed by the defendant, it shall amend the complaint to conform to the evidence. The action shall then proceed as though it had originated as a misdemeanour action.

7. If the court does not find probable cause to believe that a crime has been committed by the defendant, it shall order the defendant discharged forthwith.

If this isn't good enough, can you write something that is? I'm helping birth a baby in the next few days.

I think we should probably at least start with Lexh.G.6 as a base.

6. Criminal Law: In the interest of providing the accused with the rights granted to them by the Ninth Covenant of Rights and Freedoms, the following rights shall be considered to be inalienable and shall be afforded to all citizens in civilian trials:

6.1. The Ministry of Justice, on behalf of the Crown, shall submit a charging instrument to the Clerk of the Cort identifying, in plain language, the charge to be brought against the accuse, and the factual allegations to be proven to support said charges. Nothing in this section shall limit the Ministry of Justice from relying on unpleaded allegations provided such does not prejudice the accused.
6.2. Upon receipt of the charging instrument, the Clerk of the Cort shall refer the matter to the appropriate tribunal of the Crown as defined by law.
6.3. The tribunal of the Crown shall test the sufficiency by making a prima facie determination that if the factual allegations contained therein were proven true beyond a reasonable doubt, then the accused would be guilty of the crime as alleged. Jeopardy shall only attach if the tribunal of the Crown accepts the charging instrument as sufficient. If the tribunal is not satisfied of such, then it shall reject the charging instrument as insufficient on its face and jeopardy shall not have attached.
6.4. The accused must be informed of the charges against him by the Crown within seven days of said charges being accepted by the Tribunal of the Crown.
6.5. Such notification must be submitted to the accused in writing, by either an electronic medium such as email, a typed letter, or by a handwritten letter. A copy of every such notice shall be archived in the Royal Archives by the Royal Archivist immediately after he receives a copy of said notice. If the notice is given in the form of a hand-written letter, the Royal Archivist shall make a copy of the letter in an electronic format, such that it may be added to the Royal Archives.
6.6. The Prosecution shall have up to 90 days from the time of notification of the accused in which to prepare its case. If a case is not prepared by the Prosecution within the allotted time, then the matter shall be dismissed, unless the Prosecution can show that such delay is through the fault of the accused.
6.7. If a case is not prepared within the 90-day limit, then the Prosecution may request up to an additional 30 days to prepare its case, which shall be granted or denied by the tribunal assigned to the case. This section takes precedence over G.1.6.
6.8. The decision shall be based on the legitimacy of reasons given by the Prosecution in the interests of justice, equity, and efficiency.
6.9. If a matter is dismissed for failure to prosecute, then final jeopardy shall attach unless the Prosecution is able to provide new evidence against the accused with which to build a case. A new case must meet the same statute of limitations for any offence.
6.7. The Prosecution may withdraw a charging instrument upon good cause shown to which jeopardy shall not attach.

For our purposes, strengthening 6.3 and 6.4 are probably best-matched to our goals.  We also probably want to put the public defender bit in here, rather than Title A, since it's more about procedure than defining crimes.  If we also define a high standard of review for the proposed A.7.2.10, then I think we're pretty much set on that whole part of the bill.  I'd be happy to draft this stuff, since you're going to have a lot on your hands.

[Miestră Schivă, UrN]

Sorry, missed that. Fine, make a draft.

[Miestră Schivă, UrN]

If we don't get agreement on the "preliminary hearing" thing or other matters related to 7.2.10 by end of month, I will simply Clark a version of this with 7.2.10 omitted. Replacing Wisconsin law is a much higher priority than sorting out exactly how to punish Talossans for infamous extra-Talossan crimes, though debate on that has to go on.

[Miestră Schivă, UrN]

WHEREAS Talossan criminal law, as contained in Title A of El Lexhatx, has been "imported" from the law of the State of Wisconsin since the 31st Clark;

AND WHEREAS this has never been a satisfactory state of affairs, except for those familiar with Wisconsin law and how to look things up in it;

AND WHEREAS this provision takes part of its wording from Wisconsin statute, wherever necessary, to make sure that the transition to indigenous law will be as smooth as possible;

AND WHEREAS another bill is foreseen for this Cosa, which will relate to outstanding issues of:
a) the crime of bringing Talossa into disrepute by conviction of an infamous crime in an extra-Talossan jurisdiction;
b) questions of the procedure of criminal trials, including the possibility of preliminary hearings;


BE IT ENACTED by the King, Cosa and Senäts in Ziu assembled as follows:

PART ONE. The substantive reform.

That Title A Sections 1-8 of El Lexhatx are hereby replaced in their entirety by the below text:

1.      General provisions of Talossan jurisprudence:

1.1.   Talossan courts shall interpret Organic and Statute Law through the lens of the Covenants of Rights and Freedoms, and otherwise in accordance with Talossan juridical precedent. Judges may also use precedent from other legal systems with which they are familiar to guide their decisions, though such precedent shall not be binding.
1.2.   Only crimes described in Talossan Organic and Statute Law may be prosecuted in Talossan courts.
1.3.  A single action of a defendant may be considered to break more than one law and may be charged accordingly.

2.      Felonies and misdemeanours. All crimes against Talossan law shall be classed as misdemeanours unless stated otherwise.

3.      Authorized punishments for all crimes classed as felonies shall be as follows:

3.1.    Banishment. Banishment may be ordered in conjunction with revocation of citizenship in any felony case. Banishment prohibits the former citizen from entering the territory of the Kingdom of Talossa. A former Talossan who has been banished may not be reinstated as a citizen.
3.2.    Revocation of citizenship. A sentence of revocation of citizenship directs the Chancery to remove the offender from the list of Talossan citizens. Simple revocation is without prejudice to a future reapplication for citizenship.

4.      Authorized punishments for all crimes classed as either felonies or serious misdemeanours shall be as follows:

4.1.   Civil disability. Civil disabilities may include any or all of the following, for a maximum term of 5 calendar years for a felony or 1 calendar year for a serious misdemeanour:
4.1.1.      Bar from holding national executive office
4.1.2.      Bar from holding national judicial office
4.1.3.      Bar from holding national legislative office
4.1.4.      Bar from holding provincial office
4.1.5.      Bar from performing military service
4.1.6.      Bar from service in the Royal Civil Service
4.1.7.      Bar from posting on Wittenberg

5.      Authorized punishments for all crimes shall be as follows:

5.1.   Fines. When a fine is imposed as a component of any sentence, the court shall specify the period within which the sum must be paid, which period shall not be less than thirty days. The court may, in the interests of justice, allow the offender to pay the sum in more than one installment, according to a schedule prescribed by the court. Willful failure to pay a fine within the time provided is punishable as criminal contempt of court. The maximum fine that may be levied is ℓ500 for a felony, ℓ100 for a serious misdemeanour or ℓ50 for a misdemeanour.
5.2.   Restitution. When imposing sentence for any crime, a court, in addition to any other penalty authorized by law, shall order the offender to make full or partial restitution to any victim of a crime considered at sentencing or, if the victim is deceased, to his or her estate, unless the court finds substantial reason not to do so and states the reason on the record. The court must specify a reasonable period of time, not less than thirty days, within which the offender must make restitution. Willful failure to make restitution within the time provided is punishable as criminal contempt of court. Court-ordered restitution shall not bar any victim from pursuing any civil remedies available at law to recover any amount or type of damages not covered by the order of restitution.
5.3.   Reprimand. In all criminal cases, a court may reprimand the offender in addition to (or in lieu of, where no minimum punishment applies) any other authorized punishment.

6.      Suspended sentences:

6.1.   A court may order the suspension of all or part of any sentence, for a period of time not to exceed five calendar years. At the end of the period of suspension ordered by the court, the suspended punishment is rescinded if the offender has not violated any condition of the suspension.
6.2.    If a court determines, by a preponderance of the evidence, that the offender violated any condition of his suspension during the period of the suspension, the suspension shall be revoked and the original punishment imposed. Nothing in this paragraph shall be construed to prohibit prosecuting an act violating a condition of suspension as a criminal offense in its own right, either in the same or a separate action as the revocation of suspension.
6.3.    Refraining from committing any further crimes is an implicit condition of every suspended sentence. Other conditions which may be imposed by the court include, but are not limited to:
6.3.1.      Injunction from requesting or accepting royal honours
6.3.2.      Injunction from violating Wittiquette
6.3.3.      The performance of a fixed amount of community service under the supervision of a public body or not-for-profit organization, as directed or approved by the court.
6.4.   Civil disabilities may be imposed in conjunction with a suspended sentence upon conviction of a felony, but where a sentence of revocation of citizenship has been suspended.

7.      Talossan Criminal Code

7.1.   Definitions.
7.1.1.      "Fraud" shall mean any act of deception carried out for the purpose of unfair, undeserved and/or unlawful gain, or the assumption of a false identity to such deceptive end.
7.1.2.      "Harassment" shall mean engaging in a course of conduct or repeatedly committing acts which harass, intimidate or distress a person and which serve no legitimate purpose.
7.2.   Crimes against the Kingdom.
7.2.1.      Treason. Whoever knowingly endangers the existence of the Kingdom of Talossa, its laws, institutions and state property, by enlisting or attempting to enlist the aid of non-Talossans, commits the felony of treason.
7.2.2.      Perverting the course of justice. Whoever uses fraud, harassment, physical or sexual violence or threats thereof to attempt to influence an active case in any Cort under the Organic Law is guilty of the felony of perverting the course of justice.
7.2.2.1.            Perverting the course of justice shall also include fabricating or disposing of evidence, as well as suborning perjury.
7.2.3.      Sedition. Whoever uses fraud, harassment, physical or sexual violence or threats thereof to attempt to influence any election or any other decision made under the Organic Law of Talossa (outside of an active case in any Cort), or to remove or replace officials duly empowered by that Organic Law, is guilty of the felony of sedition.
7.2.4.      Contempt of court. Contempt of court is a serious misdemeanour consisting of intentional:
7.2.4.1.            Misconduct in the presence of the court which interferes with a court proceeding or with the administration of justice, or which impairs the respect due the court;
7.2.4.2.            Disobedience, resistance or obstruction of the authority, process or order of a court;
7.2.4.3.            Refusal as a witness to appear, be sworn or answer a question; or
7.2.4.4.            Refusal to produce a record, document or other object.
7.2.5.      Perjury. Whoever under oath or affirmation orally makes a false material statement which the person does not believe to be true, in any matter, cause, action or proceeding, before the Ziu, any committee of the Ziu, or court of law, is guilty of the serious misdemeanour of perjury.
7.2.6.      Crimes against state property.
7.2.6.1.             Whoever steals or diverts to their own use without authorization the monetary or physical property of the Kingdom of Talossa is guilty of a felony if the monetary value of such theft is 100 louis or above, and a serious misdemeanour otherwise.
7.2.6.2.            Whoever improperly uses the intellectual property of the Kingdom of Talossa is guilty of a serious misdemeanour if with the intention of misrepresenting the Kingdom or improperly claiming the authority of the Kingdom, and a misdemeanour otherwise.
7.2.6.3.            Whoever improperly accesses any computer or information system belonging to the Kingdom of Talossa is guilty of a serious misdemeanour if with the intention of committing any other crime, and of a misdemeanour otherwise.
7.2.6.4.            Whoever makes a counterfeit of any official document or item pertaining to the Kingdom of Talossa and uses it to gain a benefit to which they were not otherwise entitled is guilty of a serious misdemeanour.
7.2.7.      Solicitation. Whoever induces or attempts to induce any other Talossan to break the Law of Talossa is guilty of the same class of offence as that which they sought to induce.
7.2.8.      Conspiracy. Whoever agrees with any other Talossan to break the Law of Talossa is guilty of the same class of offence as that which they agreed to commit.
7.2.9.      Bribery. The felony of bribery is committed by:
7.2.9.1.            Anyone who offers any officer of the Kingdom or witness in a Court case anything of value in return for the performance of their official duties or to influence their testimony.
7.2.9.2.            Any officer of the Kingdom or witness in a Court case who accepts a bribe (as above) without revealing it as soon as may be practical to the proper authorities.
7.3.   Crimes against the person
7.3.1.      Whoever commits physical or sexual violence or threats thereof against any citizen or "judicial person" under Talossan law is guilty of a felony.
7.3.2.      Whoever commits fraud or harassment against any citizen or "judicial person" under Talossan law is guilty of a serious misdemeanour. Whoever commits threats of the above is guilty of a misdemeanour.
7.3.3.      Theft and invasion of privacy.
7.3.3.1.            Whoever commits theft or misappropriation of physical or monetary property valued at 100 louis or more, or improperly publishes a Talossan citizen's private information, is guilty of a felony.
7.3.3.2.            Whoever commits theft or misappropriation of physical or monetary property valued at less than 100 louis, or of any intellectual property, or improperly accesses a Talossan citizen's private information without publication, is guilty of a serious misdemeanour.
7.3.4.      Defamation. Whoever publicly defames the reputation of a Talossan individual without justification in such a way as to bring them into hatred, ridicule and contempt is guilty of a serious misdemeanour.
7.3.4.1.            No statement shall be considered to be defamation if it is justified by being true, or by being fair comment in the absence of malicious intent.
7.3.5.      Whoever deprives an individual of the free exercise of their rights under the Organic Law in a way not otherwise mentioned in law commits a serious misdemeanour.

8.      Public Defender: No Talossan shall be convicted of any crime under this Lexhatx unless they have had the opportunity of defending themselves in Court. The Ministry of Justice shall appoint a Public Defender who is a member of the Talossan Bar at the request of any defendant, or if the defendant is for any other reason unable to defend themselves in Court.

PART TWO: Revisions of references to classes of misdemeanour and felony

1. El Lexhatx A.9.10. is amended to read:

9.10. Commission of any of the criminal acts defined in A.9. constitutes a serious misdemeanour for a first offence, and a felony for a subsequent offence.

2. El Lexhatx A.22 is amended to read in its entirety

22. The unauthorised usage of any official seal of the Crown, of the Government, or of any other official body, shall constitute a serious misdemeanour. Authorisation may be given by the Seneschal or the respective Minister, or by the head of the body concerned, or any of their duly designated proxies. (46RZ23)

    22.1. The unauthorised bearing, signing or displaying of any official seal of the Crown, of the Government, or of any other official body, shall constitute a serious misdemeanour. Authorisation to bear any seal may be granted by the Seneschal, or the respective Minister, or by the head of the body concerned.

    22.2. The use of any seal, that is attached unto a document, or a notification, or a declaration, or similar, that bears sufficient resemblance to any official seal, which is used by the creator in a document, or notification, or declaration, or similar, so as to create the impression of officiality, in order to:

        (a) obtain any personal advantages or benefits; or,
        (b) put a person or a body in disadvantage, or discredit a person or a body; or,
        (c) obtain any benefits and advantages for another person,

    shall constitute a serious misdemeanour.

        22.2.1. Whether any seal, that is used in such a manner, bears "sufficient resemblance", must, in cases of doubt, be decided by the Courts on an individual basis.

        22.2.2. The use of the Kingdom's colours ("El Bicoloreu") on any seal does not satisfy the requirements of "sufficient resemblance".

    22.3. Any subsequent unauthorised use of any seal, committed by a formerly punished convict of this act, shall constitute a felony.

3. El Lexhatx C.1.4.4. shall be amended to read as follows:

Any person who damages or causes to be damaged any Public Archive or Record in the control of a Governmental or Royal Civil Service body; or damages or causes to be damaged any Public Archive in the control of a Private body, Community and/or Individual; or removes, destroys or erases such Public record or archive otherwise than in accordance with this provision or any other law, shall be guilty of a serious misdemeanour if such damage, removal, destruction, or erasure was wilful, or guilty of a misdemeanour if such damage, removal, destruction, or erasure was reckless.