Talossan Criminal Law Reform Part Deux

[Miestră Schivă, UrN]

So where we were?

We were deliberating the following, to make it possible for Talossa to sanction citizens who commit infamous crimes outside the nation:

7.2.10.  Bringing Talossa into disrepute. Any Talossan citizen who has been convicted by a credible foreign court, which has been deemed to abide by Talossan values, of a crime established at trial to have involved fraud, harassment, bribery, physical or sexual violence or threats thereof, has committed the crime of bringing Talossa into disrepute to the following degrees:
7.2.10.1.        A felony if sentenced to penal servitude of more than 2 years.
7.2.10.2.        A serious misdemeanour otherwise.

And we were also deliberating improving El Lex G.6 to establish a higher hurdle before criminal cases (just felonies? felonies and serious misdemeanours) can come to trial:

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.

Last I heard, AD suggested beefing up sections 6.3 and 6.4 above. Our aim: a means to punish Talossans for infamous crimes committed outside Talossa, with sufficient safeguards to prevent malicious prosecution (for this or other criminal offences).

Please proceed.

[Miestră Schivă, UrN]

Here was my suggestion, based on Wisconsin law:

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.

[Miestră Schivă, UrN]

All right, I can't see any reason why we can't just combine the two.

Amend El Lex G.6 to read:

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. Preliminary Hearings

              6.6.1. 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.

              6.6.2. 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.

              6.6.3. 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.

              6.6.4. 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.

              6.6.5. 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.

              6.6.6. 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.

              6.6.7. 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.

    6.7. 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.

    6.8. 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.

    6.9. The decision shall be based on the legitimacy of reasons given by the Prosecution in the interests of justice, equity, and efficiency.

    6.10. 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.

    6.11. The Prosecution may withdraw a charging instrument upon good cause shown to which jeopardy shall not attach.

[Baron Alexandreu Davinescu]

How do 6.6.2 and 6.7 interact?  The proceedings begin within 20 days, but then the prosecution has 70 more days after that to submit their brief?

[Miestră Schivă, UrN]

Their brief for the formal hearing, if there turns out to be one. The Preliminary Hearing is entirely separate, and based only on the "charging instrument". I wonder if I can tweak the wording accordingly. How about:

The Prosecution shall have up to 90 days from the time of notification of the accused in which to prepare its case for trial.

[Baron Alexandreu Davinescu]

Ah, I see. In that case, I would suggest giving 30 days as the initial deadline. Otherwise this looks good and I applaud your efforts.

[Miestră Schivă, UrN]

WHEREAS the Kingdom of Talossa was rocked to its foundations in February 2016 by the conviction and sentencing of a prominent Talossan for abhorrent crimes in the United States;

AND WHEREAS the Kingdom of Talossa found at that point that there were no provisions for formally sanctioning this citizen for crimes committed outside the country;

AND WHEREAS it is beneficial for the Kingdom of Talossa to be able to effectively and legally disassociate itself from notorious criminals;

AND WHEREAS it is also necessary that this be through a properly constituted judicial process, rather than an administrative "banishment";

AND WHEREAS in debate around bringing in this measure, it was thought necessary and proper to simultaneously introduce additional safeguards promoting the right to a fair trial and discouraging malicious prosecution for all serious crimes at Talossan law;

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

1. Crime of Bringing Talossa into Disrepute

A new section 7.2.10 shall be added to El Lexhatx Title A as follows:

7.2.10.  Bringing Talossa into disrepute. Any Talossan citizen who has been convicted by a credible foreign court, which has been deemed to abide by Talossan values, of a crime established at trial to have involved fraud, harassment, bribery, physical or sexual violence or threats thereof, has committed the crime of bringing Talossa into disrepute to the following degrees:
7.2.10.1.        A felony if sentenced to penal servitude of more than 2 years.
7.2.10.2.        A serious misdemeanour otherwise.

2. Reform of Prosecution Procedures and Introduction of Preliminary Hearing to Preserve Defendant Rights

El Lexhatx Title G Section 6. shall be replaced in its entirety as follows:

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. Preliminary Hearings

              6.6.1. 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.

              6.6.2. The preliminary examination shall be commenced within 30 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.

              6.6.3. 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.

              6.6.4. 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.

              6.6.5. 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.

              6.6.6. 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.

              6.6.7. 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.

    6.7. The Prosecution shall have up to 90 days from the time of notification of the accused in which to prepare its case for trial. 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.

    6.8. 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.

    6.9. The decision shall be based on the legitimacy of reasons given by the Prosecution in the interests of justice, equity, and efficiency.

    6.10. 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.

    6.11. The Prosecution may withdraw a charging instrument upon good cause shown to which jeopardy shall not attach.

[Miestră Schivă, UrN]

Aight, think I'm going to Clark this in October

[Viteu]

I tend to avoid the Hopper these days, so my apologies for raising these concerns on the eve of clarking.

First, section 6.3, which requires an automatic prima facie (i.e. facial) challenge to the legal sufficiency of the allegations in the charging instrument.  This requires that the tribunal take all allegations as true and determine whether such would establish guilt beyond a reasonable doubt. It does not establish guilt but obligates the Crown to bother to draft a well-pleaded charging instrument.  If the allegations were established as true but would not result in guilt beyond a reasonable doubt, the charging instrument is legally insufficient.  There is nothing that would require briefing or arguments, and the court appears free to set its own procedure. 

Proposed section 6.6 involves preliminary hearings.  As set forth, these involve a hearing before the court to determine if there is probable cause for a felony or serious misdemeanor (sidebar—serious misdemeanor should be defined). This does appear somewhat different in that a defendant can cross-examine witnesses, but to me, there's some degree of evidence or proof involved.

But reconciling the two leaves me scratching my head—6.3 follows the "beyond a reasonable doubt" standard, which is strict.  Generally, it requires that there is no other reasonable explanation from the evidence (or lack thereof)—the jury is basically certain of the defendant's guilt.  66.6, however, has the lower burden of proof of probable cause, which only requires there be a reasonable basis for believing the crime was committed.  This is what loses me—in what scenario would a court that has concluded that the charging instrument alleges conduct that, if true, would establish guilt beyond a reasonable doubt would then turn around and, during a preliminary hearing, resolve that there is no probable cause for the crime? I'm sure there are some very specific circumstances some can muster, but it seems a bit too much procedure for what may come before Talossan courts.

I am not married to 6.3 or 6.6, and I suggest that there may be a way to reconcile the two. 

Second, with regard to section 6.6.6., I am not a fan of the court tinkering with the charging instrument on its own and selecting lesser charges if what is charged does not meet the legal standard.  The court would be doing the Crown's job.  I'd prefer that the charging instrument may include alternative lesser charges from which the court may consider if the primary charge failed. I'd rather place the burden on the Crown to put forth well-pleaded charging instrument than rely on the court to fix the charging instrument.  If the crown does not include a lesser charge (or the wrong one), that's on the crown.

Third, I'd move 6.6.3. below 6.6.6.  It's just a matter of flow in my mind—if a plea may only be entered following the preliminary hearing, then why mention it beforehand.  This is more stylistic I'll concede.

I know this has been up for a while, and my regrets for not commenting sooner. But for some reason I decided to check the Hopper tonight.

-V

(As always, apologies for typos.)

[Miestră Schivă, UrN]

I've been leaving responding here to give me time to think. I also hoped that The Baron would have popped in to defend his concept of why preliminary hearings as necessary on top of the process involved in 6.3. Of course The Baron doesn't get a vote, but nor does Judge V. And no-one who does get a vote has commented.

My answer to V's first point 6.3 is a test of "if all these facts were true, would the defendant be guilty?" 6.6 is a test of whether there is probable cause" to believe that the facts are true. I'm no legal genius, but that's a different question, surely?

V's second and third points refer to provisions (and clause order) which were copy-pasted directly out of the Wisconsin Statute. Honestly, he makes a good argument, but not good enough for me to actually change the language. If any actual MC agrees with him before Clarking time, I'll make the amendment.