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Right to a fair trial
The Right to a fair trial is an essential right in all countries respecting the rule of law. It is explicitly proclaimed in the Sixth Amendment of the US Constitution, Article Ten of the Universal Declaration of Human Rights, Article Six of the European Convention of Human Rights, as well as numerous other constitutions and declarations throughout the world.
The essential ingredients for a fair and just civil trial must include a competent, neutral and detached judge (an independent judge); the absence of any intimidation of witnesses and ideally, an equal weight of arms i.e. a level playing field in terms of legal representation.
These are general principle, and, understandably, there exist divergent approaches and appreciation to what constitutes a fair trial. Proponents of both major classes of systems of criminal procedure (the adversarial system and the so-called inquisitorial system) allege that their system offers defendent a fairer trial than the other system. There may be differences on points of procedures: for instance, some jurisdictions, in certain circumstances, allow trials of defendants in their absence (in absentia) while some other jurisdictions consider that a trial can only be fair if the defendant has attended it.
In cases of extradition, the extraditing country generally requires that the country requesting extradition offers the defendant a fair trial. In some cases, this has led to some procedural defenses by defendants who alleged that their trial would not be fair according to the rules of the extraditing country. As an example, murderer Ira Einhorn waged a legal battle against his extradition from France to the Pennsylvania on grounds that his trial occurred in absentia and rendered a final judgment.
Other (historical) divergences are stated below.
Ingredients of a fair trial
Right to counsel
Nowadays, it is generally believed that a fair trial includes the possibility for the defendant to be assisted by counsel (i.e. lawyers), and that if he cannot afford having his own lawyer, the government should appoint one for him, or pay his lawyer expenses. However, this has not historically always been the case:
- Before the Prisoners' Counsel Act (1836), felony defendants did not have the possibility of having a counsel in British courts. It was thought, at the time, that counsels would serve no purpose in criminal proceedings, where what matters is deciding fact: the defendant should simply tell the truth to the court, without the interference of some counsel.
- In the United States, while the right to counsel in trials by the federal government was recognized by the US Bill of Rights, the affirmation that this right extended to cases tried by state courts (i.e. most criminal trials, including for crimes such as murder in most cases) came much later. While some state supreme courts affirmed this right during the 19th century, it was only in 1963 that the US Supreme Court affirmed the right for defendants to have counsel in trials for serious crimes.
On the other hand, some other countries had adopted the right to counsel earlier on. For instance, the Napoleonic Code of Criminal Instruction, adopted in France in 1808 and inspiring many similar codes in civil law countries, made it compulsory that the defendant should have a lawyer when tried in the assize courts (which judged severe crimes).
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