美國刑事訴訟法

楊智傑

• Abductor 綁架者• Abduction誘拐、綁架

–比較 Hijacking劫持• Suspect 嫌犯

– Suspected 受懷疑的• Criteria 判準

安珀緊急通告• An AMBER Alert or a Child Abduction Emerge

ncy is a child abduction alert bulletin in several countries throughout the world, issued upon the suspected abduction of a child, since 1996.

• AMBER is officially a backronym for "America's Missing: Broadcasting Emergency Response" but was originally named for Amber Hagerman, a 9-year-old child who was abducted and murdered in Arlington, Texas in 1996.

發出通告需有判準• Alerts usually contain a description of the

child and of the likely abductor. To avoid both false alarms and having alerts ignored as a "wolf cry", the criteria for issuing an alert are rather strict. Each state's AMBER alert plan sets its own criteria for activation, meaning that there are differences between alerting agencies as to which incidents are considered to justify the use of the system.

美國的判準• However, the U.S. Department of Justice issues

the following "guidance", which most states are said to "adhere closely to" (in the U.S.):– Law enforcement must confirm that an abduction has

taken place. – The child must be at risk of serious injury or death. – There must be sufficient descriptive information of

child, captor, or captor's vehicle to issue an alert. – The child must be 17 years old or younger

• searches and seizures 搜索和扣押• Unreasonable 不合理的• probable cause 正當理由• Warrant 令狀• exigent circumstances 緊急狀況• exclusionary rule 證據排除法則

搜索和扣押• The

Fourth Amendment to the United States Constitution provides that:

• The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and Warrants shall not be issued, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

證據排除法則• The primary remedy in illegal search

cases is known as the "exclusionary rule". This means that any evidence obtained through an illegal search is excluded and cannot be used against the defendant at his or her trial.

• Courts have also established an "exigent circumstances" exception to the warrant requirement. "Exigent circumstances" simply means that the officers must act quickly. Typically, this is because police have a reasonable belief that evidence is in imminent danger of being removed or destroyed. Exigent circumstances may also exist where there is a continuing danger, or where officers have a reasonable belief that people in need of assistance are present.

• Brigham City v. Stuart, 547 U.S. 398 (2006), was a case decided by the Supreme Court of the United States involving the exigent circumstances exception to the Fourth Amendment's warrant requirement. The Court ruled that police may enter a home without a warrant if they have an objectively reasonable basis for believing that an occupant is or is about to be seriously injured.

• confronted with the witnesses 與證人對質• Hearsay 傳聞• reliability 可信賴性• Evidence 證據• Testimony 證詞• cross-examination 交互詰問• Trial 審判• Accused 被起訴者 accuse 起訴

對質證人權• The Confrontation Clause of the

Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against him." Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial.

• In 2004, in Crawford v. Washington, the Supreme Court of the United States significantly redefined the application of the right to confrontation. In Crawford, the Supreme Court changed the inquiry from whether the evidence offered had an "indicia of reliability" to whether the evidence is testimonial hearsay.

• The shift was from a substantive and subjective inquiry into the reliability of the evidence, to a procedural question of whether the defendant had been afforded the right to confront her or his accuser. The Court implicitly noted the shift, "Dispensing with confrontation because testimony is obviously reliable is akin to dispensing with jury trial because the defendant is obviously guilty."

• The Crawford Court decided the key was whether the evidence was testimonial because of the Sixth Amendment's use of the word "witness." Quoting the dictionary, the Court explained that a witness is one who "bear[s] testimony" and that "testimony" refers to a "solemn declaration or affirmation made for the purpose of establishing some fact."

記者免作證特權• testimonial Privilege 免作證特權• reporter’s privilege 記者特權• First Amendment 憲法第一增補條文• Press freedom 出版自由• summoned 被傳喚• grand jury大陪審團• Contempt of court 藐視法庭

記者不能援引言論自由作為免作證特權依據

• Branzburg v. Hayes, 408 U.S. 665 (1972), was a landmark United States Supreme Court decision invalidating the use of the First Amendment as a defense for reporters summoned to testify before a grand jury.

聯邦法院不給記者免作證特權• in federal courts, a reporter may not avoid

testifying in a criminal grand jury. It remains the only time the Supreme Court has considered the use of Reporters' Privilege.

• Justice White acknowledged the argument that refusing to recognize such a privilege would undermine the ability of the press to gather news, but wrote that "from the beginning of the country the press has operated without constitutional protection for press informants, and the press has flourished."

排除合理之懷疑• Beyond reasonable doubt排除合理懷疑• burden of proof舉證責任• adversarial system對抗式訴訟制度，當事

人進行主義• reasonable person理性之人，通情達理之

人• Trier of facts 檢驗事實之人

無合理懷疑程度• Beyond reasonable doubt is the

standard of proof required in most criminal cases within an adversarial system. Generally the prosecution bears the burden of proof and is required to prove their version of events to this standard.

• This means that the proposition being presented by the prosecution must be proven to the extent that there is no "reasonable doubt" in the mind of a reasonable person that the defendant is guilty.

優勢證據• Preponderance of the evidence, also known as

balance of probabilities is the standard required in most civil cases. This also is the standard of proof also used in Grand Jury indictment proceedings, and in family court determinations.

• The standard is met if the proposition is more likely to be true than not true.

• Effectively, the standard is satisfied if there is greater than 50 percent chance that the proposition is true.

清楚並有說服力之證據• Clear and convincing evidence is a higher level

of burden of persuasion than a "Preponderance of the Evidence", and is employed intra-adjudicatively in Administrative Court determinations, as well as in civil and criminal procedure in the United States.

• Clear and convincing proof means that the evidence presented by a party during the trial must be highly and substantially more probable to be true than not and the trier of fact must have a firm belief or conviction in its factuality.

無罪推定原則• The presumption of innocence is a legal right of the ac

cused in a criminal trial, recognised in many nations. • The burden of proof is thus on the prosecution, which ha

s to collect and present enough compelling evidence to convince the trier of fact, who is restrained and ordered by law to consider only actual evidence and testimony that is legally admissible, and in most cases lawfully obtained, that the accused is guilty beyond a reasonable doubt.

• In case of remaining doubts, the accused is to be acquitted.