THE DEFENDANT'S RIGHTS:

VIETNAMESE PRINCIPLES COMPARED TO AMERICAN PRACTICE

 

Ta Van Tai

Research Fellow, Harvard Law School, and Attorney

 

ABSTRACT

 This paper was presented, on the occasion of the April 2004 Training Workshop in  Hanoi, Vietnam, to about 400 Vietnamese attorneys  who, in their professional job of defense counsels to protect the civil and human rights of their clients in a Communist regime, showed their eagerness  to exchange experiences with their American counterparts and learn from the long rule of law tradition of  the United States.  From careful comparative research on the constitutional and criminal law standards and the practice in the two countries, concerning the rights of the defendants in the areas of  search and seizure (with or without warrant), arrest and detention and other measures such as house arrest, bail , and the right to counsel, this study has found more similarities than differences between the two legal systems . For the practitioners as well as for the people in general in both countries, the comparison is helpful : for legal work or struggle by the people in Vietnam,  the legal framework for better rule of law and protection of civil rights is in place in Vietnam and the American experiences—albeit still having many difficulties—can be a source of inspiration ;  for  the Vietnamese-Americans, and other Americans in general, in the United States, they can evaluate how Vietnam, with a civil law system, can rapidly codify the law, not having to take hundred of years to evolve case law as in the United States, and at the same time learn from American case law, the knowledge of which is also useful to these Americans in their daily life. For this last purpose, the paper has been revised and updated to July 2006 on American legal development.

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Introduction

            This paper is a revised and updated version of one of the presentations of a delegation of six American attorneys in Hanoi, Vietnam, at the April 2004 Defense Counsel Training Workshop for about 400 Vietnamese attorneys of the Northern regions of Vietnam, sponsored financially by the Geneva-based International Bridges for Justice and organizationally by the Hanoi Bar Association and Vietnam’s Ministry of Justice. During the exchange of legal practice experiences with Vietnamese attorneys, the author presented the American experiences to the Vietnamese counterparts, by way of comparing American case law with the principles in the written law embodied in Vietnam’s new Code of Criminal Procedure, promulgated earlier that year and effective from July 2004, on one aspect of defense counsel’s work: The rights of the defendants.

            The author had the impression that the Vietnamese attorneys have a highly self-respecting concept of their professional role and they want to learn about the realities of legal practice in other countries, especially in one with more than 200 years of rule of law and democratic development, the United States. . After his presentation, the author  was surrounded by many attorneys with more questions, which revealed to him that these attorneys have been the fighters for civil and human rights within the framework of the regime, with the courage to raise the need for more legal reforms, for example giving the defendants and their counsels more guarantees; these attorneys later drafted a list of demands for reform (for example, give defendants  access to attorneys at the very early stage of initial interrogation by police [ on which, the President of the Criminal Division of the Supreme People’s Court, participant and lecturer in the Workshop, agreed], and permit easier and longer contact and consultation between clients and attorneys.)

            The voiceless Vietnamese masses are having defenders of their civil/human rights within Vietnam itself. Overseas Vietnamese communities must remember that within the national community in Vietnam, there have been courageous fighters soldiering for the citizens’ human rights and from abroad they can contribute to the fight.  When Prime Minister Phan Van Khai visited Boston and Harvard in mid-2005, Senator Kennedy’s Office asked for materials for talk on human rights with the Prime Minister, and the author offered this paper and other documents. In his meeting with the Vietnam National Assembly Delegation that accompanied the Prime Minister, the author also gave one copy to Madame Ton Nu Thi Ninh, Vice-Chair of the Foreign Affairs Committee of the National Assembly and head of the Delegation.

         With this paper, the overseas Vietnamese in the United States can, besides reading about the law on defendants’ rights in Vietnam, look for and grasp the principles of American statutory law and practice on the civil/human rights of the accused/defendants, to use them for themselves or for their compatriots in their life in the United States, especially in meeting the challenge of the  illegal acts of the police, which may arise out of their inclination toward brutality or their discrimination motive. In this purpose of presenting American law, this paper has been revised and updated in the last two years, up to July 2006, to cover the struggle between the Executive branch, which wants to increase the power of search and seizure, arrest and detention, in the war against terrorists (for example, telephone tapping without warrant) and Congress and other strata of  the people which want  to preserve the traditional civil rights.

 

 

To begin, may I say that it is a pleasure to witness the acceleration of legislation in Vietnam, my former homeland, compared to that in the big People's Republic of China. In fact, Vietnam has had an earlier and more comprehensive history of law-making than China. In 1975, China had a very short Constitution and held law and the lawyers in low esteem  and not until 1979 when Mr. Deng Xiao-ping acceded to power did China introduce a period of respect for law.  Even in 1986, Vice-Premier Qiao Shi and Minister of Justice Zou Yu still had to declare that, after many years of recovery from the devastation of the Cultural Revolution, it was time to develop a legal system and a system of bar associations to bring about the security of the rule of law and to promote economic and social development (The People's Daily, July 7,1986).  For criminal procedure, in 1963, China had a draft code of 200 articles, but it was shelved;  only in 1979 did China adopt  the first Criminal Procedure Code of 164 articles, which was revised in 1996, down to 110 articles.  More than a billion of Chinese have just a few thousand lawyers in 1979, and only 100,000 attorneys in 1996. In comparison, Vietnam has four long and comprehensive constitutions: 1946, 1959, 1980 and 1992, and a series of law codes ever since the French colonial days up until now.  Even during the Resistance War against the French for independence, the Democratic Republic of Vietnam had a law stating that law codes dating back to the French rule which are not  incompatible with national sovereignty, in the area of civil and criminal  matters for example, shall continue to have effect.  During the two long wars against the French and against the Americans, The Democratic Republic of Vietnam  promulgated many written laws and  regulations (when bound up in volumes, they counted many thousands of pages).  With this careful legislative tradition, the number of laws and regulations in Vietnam far exceeds that in China, before as well as after the Renovation  period  (Doi Moi) that began in 1986.

In November 2003, Vietnam promulgated the new Criminal Procedure Code (CPC) , consisting of 346 articles, substantially revised in comparison to the old 1988 Criminal Procedure Code. This is the most progressive Code compared to the previous codes, and it has taken effect since July 2004.  We think it is appropriate to compare this Vietnamese Code's characteristic principles of law governing the defendant's rights ( which principles were codified in accordance with the  lessons learned during the implementation of the 1988 Code) with the criminal law practice in the court system of the United States, the newly friendly country of Vietnam, developed in the two-hundred-and-thirty-year constitutional democracy.  This comparison will hopefully help facilitating the exchange of experiences between Vietnamese and American lawyers who are from two distinct legal cultures.   There have been exchanges, in the form of many delegations of lawyers from Vietnam to the United States for research  and observation-- belonging to the executive (Office of the Government), the legislative (Office of the National Assembly) and the judiciary (the delegation headed by the Chief Justice  of the Supreme People's Court arriving in the United States in 2003). Experts from both sides will see that in comparing the ways the two legal systems provide for the rights of the defendant, more similarities than differences are found--in the legal principles embodied in the statutes and the more fundamental documents, namely the 1992 Constitution of Vietnam (CVN) and the federal Constitution of the United States (provided for in those Amendments called the Bill of Rights).  The international lawyers will find with keen interest the degree of modernity of Vietnam's criminal and criminal procedure law. Similarly, in Vietnam's effort of implementing the Renovation of the country in all fields  to promote the goals of "justice, democracy and civilization", including the ideal of "respecting the legal  rights and interests of citizens" in the criminal procedure (Article 4 of the Criminal Procedure Code)-- the Vietnamese lawyers will find it fruitful to study the American  practice of criminal procedure  in this important area, to see how the liberty and the integrity of the person of citizens are protected  by the Federal Constitution and the state constitutions  and laws, as well as common law and case law, developed in the 230-year constitutional democracy  of the United States.

We wish to make one more observation for the defense counsels.

Even in the United States, lawyers have to struggle for a long time to gain fair justice for the defendant in practice (as evidenced by the history of the development of case law).  In Vietnam, the new Criminal Procedure Code is a legal framework, more comprehensive than before, to fight for the clients; therefore, the Vietnamese lawyers, in their professional work, can take a look at the experiences of the American lawyers in their effort to defend their clients. In accordance with the Code of Professional Ethics, American attorneys  pursue justice for clients by exerting "strenuous efforts to defend client's interests within the bounds of law", in two areas: (1) thorough investigation of the facts in order to present to the court the credible and sound story in terms of the logic of the facts, and (2) request for  the court to apply legal principles for which counsel has the right to ask for an extension in the interpretation advantageous to the clients ("argument for extension of the law"). In Vietnam, if the law makers and the institutions that apply and implement the law have the tendency to advance and comply with the good principles of law, then the Vietnamese defense counsels can similarly rely on the framework of written law to ask the court to protect the rights of the clients, taking inspiration from the practice in the American legal system.

 

I.   SEARCH AND SEIZURE

             The CVN proclaims the inviolability of the person of citizen (article 71). The CPC sets forth the principle of protection of life, health, honor, dignity and property of citizen (art.7) 

            The CVN (art.73) and the CPC (art.8) uphold the  inviolability of residence, security and secrecy of correspondence, telephone, telegraph; any search would have to be in accordance with law.[Hereinafter, the numbers following the CVN and CPC denotes the articles in these documents].

            SEARCH. CPC 140 states that the ground for search of the body, the dwelling places and other premises, as well as mail and postal parcels  is the belief that instruments or means to commit an offense, objects obtained by committing an offense, documents and other relevant things or the wanted persons may be located in/at those places . CPC  141: The search requires a warrant issued by the chief procurator, his deputy, the president or vice president of the court , the head or his deputy of the investigating bodies at all levels (in the last cases, the chief procurator must ratify in advance the warrant, or in urgent case, must be notified within 24 hours after the search) . CPC 142: The strip search only takes place if the person in question refuses to hand over the things requested and needs a warrant, which must be read out loud to the defendant, and cite his rights, and the search must be carried out by persons of the same sex ; strip search may take place without a warrant, if the person is being arrested or the authority has reason to believe that the person present at the searched place is hiding things on his body. CPC 143: Search of premises should proceed in the presence of adult family members or representatives of the local authority and two neighbors and can be carried out only during daytime, except where there is a need not to delay, which must be  stated in the record; search of the work place requires  the presence of the person in question and his employer; persons searched may not leave the place  or communicate with each other until the search is completed.

            SEIZURE:  CPC 144: Seizure  of correspondence, telegram, postal post and matters at the post office requires a seizure warrant of the head of the investigating body or his deputy, which must also have prior approval by the chief prosecutor at the same level or his deputy, except where the seizure cannot be delayed, in which case  that urgent need must be stated in the record and the seizure promptly reported to the procuracy. The representative of the post office must assist in conducting the seizure and serve as witness. Notification must be given to the owner of the things seized.  CPC 145: Seizure of things and documents relevant to the criminal case must be recorded in a report, made out in four copies given to the owner, to the case file, to the procuracy, and to the agency responsible for safe-keeping. Articles seized must be delivered promptly to the competent agency, and if necessary, put under seal or otherwise locked away in the presence of the owner or the representatives of his family and his local authority. CPC 146: Property is not seized but subject to inventory in case a person is charged with an offense likely to give rise to confiscation of property, or a fine or to damage payment; the inventory shall be in proportion to the amount to be confiscated, fined, used for damages ; the process of inventory shall be carried out in the presence of the person concerned, or an adult member of his family, a representative of the local authority and his neighbors; and the property inventoried shall be entrusted to the owner or his relatives for preservation; the report will be made out in 3 copies: one to be given to the owner, one to the procuracy and one for the case file. CPC 147: Persons entrusted with safekeeping of the seized items must no break the seal ,use, transfer or conceal them, or they may be criminally liable. CPC 149: Persons who issue illegal warrants of search, seizure and inventory, or conduct them illegally, shall be disciplined and punished criminally as well as be liable civilly for compensation.

 AMERICAN PRACTICE

             The long development over the years of American case law on Search and Seizure has been derived from the  IVth Amendment in the Bill of Rights of the Federal Constitution, which reads: " 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 no warrants shall issue but on probable cause supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized".

The US Supreme Court has held that this IVth Amendment applies to       

search/seizure  as well as arrest/detention.  

When applying to search and seizure, the IVth Amendment has given rise to the Exclusionary Rule in criminal law : evidence obtained by unlawful search and seizure  is excluded, or inadmissible, in criminal proceedings 

            But this exclusionary rule is not applicable to [not invalidating] searches by private persons,  or searches in civil cases, such as civil deportation in immigration law. Also, there are (1) a good faith exception to exclusionary rule: the rule does not bar the use of evidence obtained by officers acting reasonably in reliance on a facially valid search warrant  issued by a detached and neutral magistrate but ultimately found to be invalid for lack of probable cause , and (2) an inevitable discovery exception: if the prosecutor can establish that unlawfully obtained evidence ultimately  or inevitably would have been discovered by lawful means, the evidence would be admissible to the proceedings. Nix v. Williams, 81 L.Ed. 377 (1984).

            A lawyer or a court  discussing the validity of a search would go through these following  four or five steps.

 1. First, is there a search ? or no search at all ?

The criterion for evaluation is embodied in Katz v. United States, 389 US 347 (1967), which abandoned the property-oriented definition of search, and held that an unreasonable search occurs when the government violates the defendant's reasonable expectation of privacy. The Court in this case invalidated electronic surveillance of the defendant's telephone conversation in a public telephone booth. But there was no search in Smith v. Maryland, 442 US 736 (1979)  when the telephone company gave to the police the numbers dialed by the defendant, but did not record the content of the conversations, because the numbers called must be submitted to the telephone company anyway to make a call, so there was no expectation of privacy in this information. Also, a person who has thrown things in the trash has relinquished all expectation of privacy in those things, which are no longer protected by the law on search. Commonwealth v.Krisco Corp. 421 Mass. 37,41 (1995).

a) Areas protected due to expectation of privacy are: a dwelling house, a hotel room, a private business office or private areas of a store or of a corporation . Lanza v. new York,370US 139,142 (1962) .Goods displayed in a store do not cause the store to lose all expectations of privacy in the goods and do not obviate the need for a search warrant. Lo-Ji Sales, Inc. v. New York, 442 US 319 (1979). But police can examine the books intentionally on display for customers ( no search) and then purchase some obscene literature (no seizure, but voluntary transfer of possession). Maryland v. Macon, 86 L.Ed. 370 (1985) . The difficult borderline problems of search in garages, common areas of apartment buildings can be resolved by considering the defendant's interest in privacy in the area . Hiding a radio transmitter in a container sold to the defendant to monitor his moving around in his automobile on the highway ,then to his private home, is not search nor seizure, because it is simply technological enhancement of police's sensory facilities United States v. Knotts,75 L.Ed. 2d 55 (1983). Sticking a global positioning system (GPS) device on a person's car to track him is not search, because there is no expectation of privacy in the whereabouts of a car on public roadways (an attorney suspected of being a member of Hell's Angels, the  drug-trafficking motor cycle gang. Boston Globe Jan.17,2005).  But putting a beeper inside a home, in which the owner has a justifiable interest in the privacy of the residence, constitutes illegal search in violation of the right of privacy .United States v. Karo 82 L.Ed. 2d 530(1984). However, even in the privacy of a home, a search with warrant (see section 2 on search warrant below) can start without knocking at the door or waiting for the door to be opened; and the evidence collected in such search is valid, not to be excluded  (Decision on June 15,2006 by US Supreme Court, denoting a new orientation in favor of the police by the High Court, with two new justices).

b) Areas/things not protected are the following:

(i) Open fields, streets and sidewalks, and parks. No individual can demand privacy for activities conducted out-of-doors, except in the area immediately surrounding the home.  But the wooded area and other green areas surrounding the house can be observed from the airspace . California v. Ciraslo 90L.Ed.1986

( ii )Objects, although in a protected area (home, office, automobile ), are in "plain view", i.e. they can be seen from a vantage point open to the public. There is no search when the police sees objects inside an automobile through the glass window ,even if using a flashlight illuminating the inside of the car. Harris v. United States, 390 US 234 (1968).The "plain view" doctrine  is also used to validate seizure of an incriminating object inside a house when the police is lawfully in the premises pursuant to a search warrant, even that object is not specified in the search warrant. Washington v. Chrisman, 455 US 1 (1982); for example, looking for drugs but finding stolen merchandise in " plain view" . However, objects are not in plain view if the police must use a telescope to identify them.

(iii) Statements made by defendant to police's informers and spies posing as his friends are not obtained by search. Hoffa v. United States 385 US 293 (1966).

(iv) Evidence obtained by a subpoena, is not from search.  A subpoena for physical evidence of criminality such as voice or handwriting sample, issued by a grand jury, is not a search or seizure within the meaning of the  IVth amendment. United States v. Dionisio 410 US 1 (1973).

 2. Is there a search warrant in valid form?

A search warrant confers authority to search only the place and persons named in it. Warrant to search a bartender and tavern does not mean permission to search customers. A warrant must satisfy these procedural requirements to be valid:

a) The officer's personal appearance before a neutral and detached  magistrate (the court or other independent official) who determines if there is probable cause to issue a warrant. Johnson v. United States 333 US 10 (1948).

After the terrorist attacks of 9/11/2001, the Patriot Act, giving broader power to the executive, has raised some alarm to some people who worry that government agents may snoop around and spy on  citizens with checks on what they read at a library or on the Internet, or by delayed-notification search warrants allowing  investigators to search home, business and seize property without disclosing  for weeks or months ("sneak and peek") to avoid prompting escape or destruction of evidence. The government doubled the rate of use of the delayed-notification  to 47 times and the clandestine seizure of property to 45 times in 22 months from October 26 ,2001 to April1,2003, for not only terrorism but also other criminal investigations (Boston Globe, April 5,2005).  However, for decades, judges have approved delayed-notification warrants in certain criminal cases, and as for terrorism, under section 215 of the Patriot Act, protection  against unreasonable search is not only assured by the necessity for Federal Bureau of Investigation to apply for judicial order, but also by the limitation that "an investigation conducted under this section shall…not be conducted of a United States person solely upon the basis of activities protected by the first amendment to the Constitution of the United States" ( freedom of speech, religion) . Every six months, the Attorney General must tell Congress how many court orders have been requested, and how many requests have been granted.

b) An Affidavit setting forth the facts and circumstances (evidence) on which the officer relies to establish sufficient grounds or probable cause for issuance of the warrant. Although the evidence need not be enough to justify conviction (beyond a reasonable doubt) and can be hearsay too, an informer's statement need corroboration by other evidence (such as police investigation results), in a "totality of the circumstances" approach to determine probable cause Illinois v. Gates 76 L.Ed. 2d 527 (1983).

c) The content of the application for warrant must specify that the property which is object of the search has been used or is intended for use in committing a crime, and then describe specifically the object and point out with particularity the place to  be searched.  Search of entire apartment building is invalid. United States v. Hinton 219 F2d 326(7th Cir. 1955). The application must describe specifically the items to be searched. A warrant that lists too many things "of any kind or any form" (too broad) or  leaves the objects to be searched for blank, is invalid. Lo-Ji Sales, Inc. v. New York,442 U.S. 319 (1979).

d) Search of the property of a third party. The Privacy Protection Act of 1980 requires that the officer obtain a subpoena duces tecum to find evidence of a crime in the possession of a third party not suspected of engaging in criminal activity . No need of this subpoena if immediate seizure is necessary to prevent death or serious injury, or to prevent destruction, concealment or alteration of materials.

e) Right to attack truthfulness of Affidavit. Defendant may move to suppress evidence by attacking the truthfulness of the affidavit attached to the application for warrant: (i) He must make a substantial showing that the affidavit contained false statements knowingly made, or made with reckless disregard for the truth; (ii) He must show that the magistrate could not have found probable cause on those portions of the warrant which remain after the false portions are deleted. At the hearing, if he can prove these points, then the warrant is invalid and all evidence discovered in the search are inadmissible Franks v. Delaware, 438 U.S. 154 (1978).

3. If there is no warrant, is there an exception to the need for search warrant ? In other words, is this the case  of a valid warrantless search?

a) First, search incident to a lawful arrest is valid. The policy reason is that an officer making an arrest ought to be able to search for weapons which might harm him, and to find evidence that the defendant might destroy.  Also, the officer making an arrest usually has no time to obtain a search warrant. The standard for this search, established by Chimel v. California 395 US 752 (1969), is that at the time of making the arrest ,or immediately thereafter, an officer is permitted to search the person of the defendant as well as those areas in this immediate physical surroundings which may be deemed to be under his control. Therefore, a search of a footlocker 90 minutes after an arrest was held not incident to that arrest . United States v. Chadwick, 433 US 1 (1977). The lawful arrest for traffic violation would permit a full personal search : the occupant of the car may be required to get out of the car make the search easier, even though there is no reason to suspect concealed weapon or contraband. Pennsylvania v. Mimms 434 US 106 (1977). The passenger compartment of a car is within the individual 's control; the  police can fully search that compartment and any containers therein, closed or not. New York v. Belton 453 US 454 (1981).

b)  Threshold inquiry : "frisk" or pat-down search for weapons to protect officer's safety. This search requires less than probable cause, but must have a reasonable basis. An officer who does not have the right to arrest may make a limited search by patting down the person for concealed weapons, IF(this is the standard)  a reasonable man in his position would believe that the person has concealed weapon and it necessary for the preservation of his safety and that of others. Terry v. Ohio, 392 U.S. 1 (1968). The basis for the officer's belief can be hearsay, i.e. information from a reliable informant. Adams v. Williams 407 U.S. 13 (1972). If illegal weapons are found in the pat-down search, an arrest may then be made and a full body search made incident to that arrest ( see a) above). On the other hand, search cannot be made on an individual who just stands near others independently suspected of criminal activity Ybarra v. Illinois,444 U.S.85 (1979); and  without reasonable basis for suspicion, it would be unlawful search by merely stopping an individual on the street and asking his name and address (violation of expectation of privacy). Brown v. Texas, 443 U.S. 47 (1979). Random stopping and search of automobile or boat where there is no suspicion of wrongdoing is also unconstitutional, because it would leave too much discretion to the police officer. Delaware v. Prouse,440 U.S. 648 (1979). The exception  is given to search of a vessel about to go into the open sea in the case of United States v. Villamonte-Marquez,77 L.Ed.2d 22 (1983): US custom agents may, at random and without suspicion, stop a vessel in a channel leading to the open sea, to examine its documentation; this search was considered reasonable because of the waterborne setting that precludes use of fixed checkpoints or roadblocks, the complexity of the system of registering seagoing vessels as compared to the motor vehicle registration system and the strength of the government's interest in assuring compliance with the registration requirements.

c) Search in hot pursuit. If the police suspect that a person has committed an offense and are pursuing him to arrest him, they have the right to enter a private place during the pursuit to search that place and to seize evidence there even though the material is "mere evidence" and is not contraband or instrument of offense Warden v. Hayden, 367 U.S.294 (1967). The justification for this warrantless search, not incident to an arrest, is the impracticability of obtaining a warrant while in hot pursuit.

d) Border search. On the slightest suspicion, border guards may make a routine search of a person and effects on the person crossing the border. More thorough searches, such as strip searches, require real suspicion. For searches of body cavities, a clear indication that the suspect possesses contraband is necessary. Henserson v. United States, 390 F.2d 805 (9th Cir.1967). Considering all the facts surrounding the traveler and her trip, customs agents can reasonably suspect that she has contraband in her alimentary canal and detain her 16 hours to await the natural emptying of it. United States v. Montoya de Hernandez. 87 L.Ed. 381 (1985)

--The search need not take place at the border but may be carried out at a convenient inspection station some distance from the border. Searching vehicles for illegal aliens, the guards at an inspection station away from the border may stop a vehicle for brief questioning of its occupants, even though there is no reason to believe the vehicle contains illegal aliens. United States v. Martinez-Fuerte 428 U.S.543 (1976). But a full-scale search of a vehicle at such a checkpoint must be based on probable cause.United States v. Ortiz, 422 U.S.891 (1975)

--Full search of vehicles by roving patrols (stopping at other than fixed checkpoints) requires more stringent conditions: either a warrant or probable cause Almeida-Sanchez v. United States, 413 U.S.266 (1973). Cursory inspection of a vehicle requires a suspicion beyond the fact that  its occupants appear to be of Mexican ancestry. United States v. Brignoni-Ponce, 422 U.S. 872 (1975).

--Searches at airport. Search conducted pursuant to federal law of passengers entering airplane boarding areas are analogous to border searches and therefore require no warrant or probable cause as long as they are limited to the purpose of protecting the airplanes from weapons and explosives. A person may refuse to submit to an airline terminal search by not entering the restricted area. A "canine sniff" is not a search, but removing the luggage from its owner is an "investigatory detention" subject to the limitations of the Constitution; and  a ninety minutes detention was deemed unreasonable. United States v. Place 77 L.Ed. 2d 110 (1983). There is no search where a package is broken during transit and inspected by employees and federal drug enforcement agents were called to the scene after a white powder was found: a warrant is not required to field test a small sample for narcotics. United States v.Jacobsen, 80L.Ed. 2d 85(1984).

e) Items in official custody. A car in police custody for a parking violation can be subject to routine inventory search on the theory that the owner has less expectation of privacy for things in the car than in his home. South Dakota v. Opperman,428 U.S.364 (1976). Personal property in long-term official custody, such as a car in forfeiture proceedings, may also be searched . Cooper v. California ,368 U.S. 58 (1967). However, a warrant is necessary to search property locked in a trunk in official custody, unless there are exigent circumstances. United States v. Chadwick,433 U.S. 1(1977). The government's possession of misdelivered obscene films does not give it authority to search them. Walter v. United States,447 U.S. 649 (1980).

f) Seaches of automobiles. Search of automobiles without warrant can be justified on several grounds:  (i) Object in plain view: there is no search. (ii) Search incident to arrest: If the defendant is lawfully arrested, the area within his control can be searched: for example search of a car in police custody after an arrest or an accident .Cady v.Dombrowski, 413 U.S. 433 (1973).(iii) Routine inventory search: as when the car is in official custody. South Dakota v. Opperman, 428 U.S. 364 (1976).  But a microscopic search of a car in long-term police custody is invalidated. Coolidge v. New Hampshire, 403 U.S.43 (1971). (iv) A car crossing a border, or functional equivalent, can be subjected to extensive search. If a car can be moved away before a warrant can be obtained, and the officer has probable cause, every part of it and its contents , such as containers, packages, can be searched. United States v. Ross, 4456 U.S. 798 (1982); or the containers can be moved to a warehouse and opened three days later. United States v. Johns. 83 L.Ed. 890 (1985). A mobile motor home located in a public parking lot belongs to this "automobile exception" of warrantless search  by reason of  probable cause, because it can be used on the highway.

In the stop and search of automobiles, police in many states have engaged in racial profiling against the minorities: blacks and Hispanics constitute 70%-75% of the motorists stopped and searched, and 80%-95% of drug couriers stopped in bus and train. This situation has caused resentment among those minorities and there have been riots. The courts have given new orders that police must make statistics of  racial traits proportions in the tabulation of arrests of motorists. 

g) National security. Foreign Intelligence Surveillance Act (FISA), enacted during the Carter Administration, created a federal court specializing in counter-terrorism and international intelligence . For national security in foreign affairs, a warrantless wiretap is allowed.  But for domestic security surveillance, there must be a judicially-sanctioned wiretap warrant. United States v. District Court for the Eastern District of Michigan, 407 U.S. 297 (1972).  The Bush Administration states that the National Security Agency program of electronic tapping of million of telephone calls, with the cooperation of  big telephone companies, does not violate privacy because (i) it does not aim at listening to the content of the telephone conversations; and (ii) it merely keep track of  the telephone numbers, the times and the locations of calls that connect to suspected terrorists or countries suspected to be sponsors of terrorists.  While such tracking of so many telephone calls raises concern among some members of Congress and some opposition leaders, the program, if truly searching mainly for patterns of calls by a numbers of suspected targets, probably conforms to FISA. A majority of interviewed Americans state that inn view of national security, they have no concern about this program violating their privacy. Some of them state that they have nothing to hide in their telephone conversations and for protection of national security, tracking telephone calls is all right. In any case, the Bush Administration has agreed with the Senate Judiciary Committee to submit this program to  the FISA court to test its constitutionality. See the discussion on court practice after 9/11 events in the paragraph on Search warrant in valid form, above.

It is noteworthy that the above protections do not extend to people who are not US persons. And for the sake of national security against terrorists, there have been proposals, such as those of Harvard Professor Phillip Heymann (author of a book entitled  "Terrorism, Freedom and Security") who suggests some profiling against certain people who are not US citizens.. He proposes that (i)  there should not be profiling, on the basis of race, national origin, religion or political affiliation,  of US citizens and permanent residents who have had that status for 7 years--unless they preach violence ;  but  (ii)  there can be certain profiling of certain nationals of particular hostile countries, for example, some Arab/Middle Eastern countries. This selective approach for national security would create much less legal problem and would be more effective than the broader approach:  the broader approach would be unfair, because only a tiny percentage of certain groups may be dangerous  , and would also be counterproductive, because it would alienate many innocent people outside the target group, and  the terrorist organizations might sidetrack the measure by inducting new recruits outside the group profiled.. Even this selective profiling, when applied, would show the difficulty of balancing counter-terrorism measures and civil rights in a democracy . After the terrorist bombing of 10 commuter trains in Spain, some cities in the United States want to have random stop of passengers in the subway to inspect their bags; but even random stoppage raises protest by some Arab, Muslim organizations and the National Lawyers' Guild on the ground that  Arab, Muslim and some South Asian people may be singled out for stop.

h) Searches at the crime scene . There is no general exception to the warrant requirement, because, on the one hand, a four-day warrantless search of a murder scene is illegal (Mincey v. Arizona, 437 U.S. 385 (1978)), or a warrantless search of  the scene of a fire for signs of arson several days after the fire has been extinguished, without consent, is illegal, on the other hand, the warrantless search of the fire scene as soon as the fire was extinguished or 2 or 3 hours later is upheld by the Court. Michigan v. Tyler, 436 U.S.499 (1978). Michigan v.Clifford, 78 L.Ed.2d 477(1984)

i) Prison searches. A prison inmate cannot claim reasonable expectation of privacy. Hudson v. Palmer,82 L.Ed. 393(1984), and he may be subject to body cavity and room searches, justifiable for reason of security and internal order and discipline. Bell v. Wolfish, 441 U.S. 520 (1979). If he makes a telephone call from prison, it can be recorded and monitored and evidence found based on that call is admissible.

k) Emergency situations. Many of the above-described exceptions to the search warrant requirement can be covered by a more general statement of rationale:  Warrantless search is authorized whenever there is a reasonable apprehension that delay due to obtaining a warrant would frustrate the search.  Schmerber v. California, 384 U.S. 757 (1966) and Winston v. Lee,84 L.Ed. 662 (1985) used a balancing test, and decided to uphold a blood test without a search warrant imposed on the operator suspected of drunken driving, but to invalidate, in the light of the IVth Amendment, as severe intrusion on the defendant's private interests and bodily integrity, the order for surgery to remove a bullet from a suspect's chest to look for evidence.  Courts usually look at a  number of factors in a balancing test to evaluate the search of a moving automobile (emergency situation): the mobility of the car, the time needed to obtain a warrant, the defendant's knowledge of the police observation, and the likelihood of destroying evidence. Commonwealth v. Sergientko 399 Mass. 292,294,296.            

l) Administrative searches where strict warrant procedure is not required. For example, searches of dwellings by municipal fire, health, housing or licensing inspectors do not necessarily require warrant, although governed by the IVth Amendment. Warrantless searches for emergency health problems are valid . See v. Seattle, 387 U.S. 541 (1967). A warrantless search of a locked storeroom of a firearms establishment which was subject to licensing requirements is valid, provided that such search is conducted at reasonable times--the rationale is that these searches are reasonably necessary to carry out regulatory duties of the licensing authority. United States v. Biswell,406 U.S. 311 (1972).A mandatory visit by a social worker to the home of a welfare recipient is not usually a search, but when it is, it is considered reasonable for purpose of administering a government program.  Wyman v. James,400 U.S.309 (1971).Searches by public school officials need no warrant nor probable cause, but simply depend, for legality, on reasonableness of search under all circumstances : the ground for suspecting that a search will turn up evidence, the measures are reasonably related to the  objectives of searches, and not excessively intrusive. New Jersey v. T.L.O. 83 L.Ed. 720(1985) (search for cigarettes in students).Surveys of workplaces by the Immigration Service in search of illegal aliens and for questioning about citizenship of employees are not considered seizure of the workforce I.N.S. v. Delgado, 80 L.Ed. 2d 247(1984)

             However, a warrant is required for inspection by the Occupational Safety and Health Administration, even if the warrant does not need a showing of probable cause, because there are already reasonable standards for conducting an inspection .Marshall v. Barlow's, Inc., 436 U.S. 307 (1978).

 4. Is this a consent search?

             When the defendant consents to a search, it may be conducted without warrant or probable cause. The consent must be voluntary, given under no threat of compulsion. Thus, if the totality of the circumstances indicates that consent was not coerced, the consent of person already in custody is valid. United States v. Watson, 423 U.S. 411 (1976).

            But  if the police appear at a home claiming authority to search pursuant to a warrant or otherwise, the consent given would be compulsory and therefore ineffective Bumper v. North Carolina, 391 U.S. 543 (1968).

            Consent by third party.  A third party in joint control with the defendant over the premises to be searched can give consent for a search only over the areas of joint control, but not over areas of the defendant's exclusive control. See Bumper just cited. Similarly, the landlord cannot consent to a search of a tenant's apartment, which is, although owned by him, was in control of the tenant; and the hotel management cannot consent to the search of a guest's hotel room until the guest checked out permanently. Chapman v. United States,365 U.S. 610 (1961). Parents can consent to a search of a house but not to the search of the locked trunk of children over 18 years of age, without their consent.

5. The consequences of an invalid search.

An invalid search can lead to the suppression of all evidence (objects as well as verbal statements) discovered pursuant to that search, even though some of the evidence might be legally seized, James v. Louisiana, 382 U.S.36 (1965). However, a statement voluntarily given by the suspect, which is unaffected by any illegality in the search or detention, is admissible . Rawlings v. Kentucky, 448 U.S. 98 (1980). The victim's knowledge of the defendant's identity acquired prior to the illegal arrest of the defendant  is not considered as a product of official misconduct and therefore is considered valid for in-court identification of  the defendant, which was not suppressed. United States v. Crews,445 U.S.463 (18980)

            The suppression of evidence obtained by illegal search is a preliminary question of law for the judge to decide and not for the jury's finding and therefore, most states and federal courts require a motion to suppress to be filed prior to the jury 's hearing of the evidence.

             As the defendant himself must show that his rights, and not those of another person, have been violated, there is a difficulty for him to establish standing without admitting to the crime. For example, if he shows that he has standing by testifying that he possessed or owned the object, he is at the same time admitting to the crime.  In Simmons v. United States, 390 U.S.377 (1968), the US Supreme Court relieved the defendant from this dilemma by holding that the testimony given by the defendant to establish standing cannot be admitted as evidence against him at trial. The defendant must also show that he had a legitimate expectation of privacy in the place searched. Therefore, a defendant who hid away drugs in the purse of his girl friend just prior to the search was denied standing based on the lack of a legitimate expectation of his privacy in his girl friend's purse, Rawlings v. Kentucky, cited above; and a passenger has no property interest in a car or items seized from it, so he cannot challenge the search of the car. Rakas v. Illinois, 439 U.S. 128 (1978).

            Even if the prosecutor cannot use evidence illegally seized to convict the defendant affirmatively, such evidence may be used to impeach the credibility of testimony given on direct or cross examination. Walder v. United Sates, 347 U.S. 62 (1954). United States v. Havens, 446 U.S. 620 (1980).

       

II.  ARREST AND DETENTION and ALTERNATIVE DETERRENT MEASURES

              CVN 71 declares the inviolability of the person of citizen who cannot be arrested without the decision of the court and the procuracy, except in case of fragrante delicto; arrest and detention must be in conformity with the law.  CVN 72 states that the victim of unlawful arrest and detention has the right to compensation and rehabilitation of honor, while the authorities who violate the law during arrest and detention as well as prosecution and judgment stages, will be punished. CPC 6 ensures the right of citizen to bodily security by confirming the principle stated in the CVN, that nobody shall be arrested without a decision of Court or a decision made or approved by the Procuracy, except in case of fragante delicto or red-handed offence. CPC 6 makes clear the second meaning of bodily security: any coercion or bodily torture is strictly prohibited. CPC 7,already mentioned above, is also relevant to the law on arrest and detention, because it states the principle of protection by law of the life, health, honor, dignity (and property) of citizen.

How the above overall principles operate during arrest and detention and other deterrent measures?

First of all, on the grounds for arrest and detention, CPC 79 provides that the reasons for the investigating body, the procuracy and the court  taking the various deterrent measures such as arrest (bat), remand in custody (tam giu), detention (tam giam), house arrest or prohibition of leaving domicile(cam di khoi noi cu tru), guarantee (bao lanh) and release on bail (dat tien, tai san de bao dam), are the following:  the belief that the charged or accused person would impede the investigation or prosecution of a crime, or would commit further crime. However, CPC 94(2) also provides that if these measures are deemed to be no longer necessary, the investigating bodies, the procuracies and the courts shall rescind them.

 ARREST.

There are three situations for arrest, with different provisions on persons entrusted by law with authority to issue warrant of arrest or power to arrest.

1. Arrest of the charged person (bi can) and the accused (bi cao)  .CPC 80. The persons with power to issue arrest warrant are: the chief procurator and his deputy of the people's procuracy, and military procuracy , at all levels; the president and vice president of the People's Court and military court at all levels, the president and vice president of the Appeals Court Department of the Supreme Court, and  the head and deputy head of the Investigating Bodies at all levels .However, the investigating bodies, usually understood as the police, must have the warrant ratified by the procuracy of the same level before executing the warrant. The warrant must be signed and stamped by the person issuing it and cite the ground for arrest. The warrant executor must read it out loud to the arrested person and explain the warrant and his rights and obligations. Arrest must be witnessed by the local administrative authority and also, if arrest is at the person's home, by his neighbors [this principle dated back to the emperors' time]; if arrest is at the person's working place, it must be witnessed by the employer. Arrest shall not be allowed at nighttime, except in urgent cases or in flagrante delicto (caught red-handed)

2. Arrest in urgent cases (trong truong hop khan cap) .CPC 81. Urgent means there is ground to believe that the person is preparing to commit a very serious or particularly serious offence, or there is a person who has eye-witnessed the crime and recognized the culprit and the arrest is necessary to prevent escape, or there is evidence of the offence on the person or at his domicile and the arrest is necessary to prevent escape or destruction of evidence. The persons with power to issue arrest warrant for urgent cases are: head and deputy head of Investigating Bodies at all levels, the commander of the military detachment at regional level or of the border security unit, and the commander of airplane, or vessel while leaving airport/seaport.  An urgent arrest has to be promptly informed in writing  to the procuracy at the corresponding level for ratification (even after the fact of arrest). Within 12 hours, the procuracy must either ratify or not ratify the urgent arrest; in the latter case, the prisoner must be released immediately.

3. Arrest of person in flagrante delicto (pham toi qua tang) or wanted person (dang bi truy na).CPC 82. Any citizen can arrest and disarm, and produce to the nearest police station or procuracy or administrative committee, a person in the process of committing a crime or being in hot pursuit after committing a crime, or being a wanted person. The said government institutions must make a protocol of the arrest and promptly transfer the arrested person to the appropriate investigating body.

CPC 84: The executor of the arrest must make a protocol of the arrest (mentioning date and place of arrest, actions taken, matters that occurred, things and documents seized, complaint of the arrested)  and read it out  loud to the arrested person and other persons present; and all must sign it, and anyone who has a dissenting opinion can write it down in the protocol. If the arrested person is transferred to another agency, there must be a protocol about the transfer, which should include, besides the above details, the other details such as the taking of statements, the health conditions of the arrested person.

CPC 83. The actions that must be taken without delay by the Investigating Bodies after receiving the arrested person are : in case of arrests in urgent case or on flagrante delicto, a statement must be  taken, and in 24 hours, a detention warrant must be issued or the person must be released.; in case of arrest of a wanted person, a statement must be taken and a notice must be sent to the body which has issued the order on hunting down the wanted person to request it to come and receive the person arrested. After receiving  the person, that body must suspend the hunting down. If that body cannot come and receive the prisoner, the investigating body must promptly issue the order on remanding in custody and notify the body that hunted down the person, and the latter must promptly issue a warrant of detention and send it, after ratification by the procuracy, to the Investigating Body  in order to take the prisoner into a detention house.

CPC 85 . The official issuing the arrest warrant and The Investigating Body receiving the arrested person must promptly notify his family, and the  administrative authority of the locality where he lives or works.

On whether the arrested person has the right be silent or not to make statement during the arrest, or the later detention and interrogation, please see the discussion below in the section on the right to counsel and counsel's work.

 REMANDING IN CUSTODY (Temporary Detention)

Persons arrested in urgent cases and in flagrante delicto and as hunted persons, or who confess to crime or surrender, shall be remanded in custody (tam giu) with orders of remanding in custody issued by the head and deputy head of the investigating bodies at all levels, the commander of the military detachment at regional level, of the border security, of the sea police and of the commander of the airplane or vessel while leaving airport/seaport. CPC 86. The orders (a copy of which to be given to the persons) must explain their rights and obligations and the grounds for custody and must be sent within 12 hours to the procuracy at the same level for ratification or, if groundless, for rescission and immediate release of the persons.

There are maximum time limits to remanding in custody: 3 days, which may be extended, if necessary, up to 3 more days and in special cases, for still another 3-day period. The extensions must be subject to ratification or rejection (if there is no ground for instituting criminal prosecution) by the procuracy at the same level. The days of remanding in custody shall count toward the later period of detention for investigation. CPC 87.

The regime of the remanding in custody and of the later detention is different from imprisonment after judgment , in terms of living, receiving gifts, connecting to family etc.. CPC 89. 

The authorities issuing order of custody or detention must arrange for the care of the children under 14 and handicapped or weak/old relatives of the person in custody or detention by entrusting to their relatives or, if no relative, to the local authority, and also for the preservation of his/her property if there is no one to look after that, and then inform the person about these measures. CPC 90.

 DETENTION (pending Investigation)

CPC 88 . Detention may be ordered for particularly serious crime or very serious crime, or even serious or less serious crime if punishable by more than two years' imprisonment AND there is reasonable belief that the person can escape or impede the investigation/prosecution or would commit other crimes. The persons exempt from this detention and given alternative deterrent measures (see below) include women who are pregnant or have to feed a child under the age of 36 months, and weak old people, who have definite address. But no exemption is given if the person had previously escaped and has been re-arrested under the order of hunting down, or the person has been given the lenient alternative deterrent measures but then committed further crime, caused impediment to investigation/prosecution , or the person committed offense against national security AND there is sufficient ground for belief that without detention, the person can harm national security.

The authorities having power to issue detention warrants are the same ones who have power of arrest, mentioned in CPC art.80. And there is the same rule of ratification or rejection of the warrant, within 3 days, by the procuracy, if the issuing authorities are the investigating bodies. The persons issuing detention warrant must also notify the detained person's family and local administrative authority and work place

CPC 120 provides for the time limit for detention pending investigation: 2 months for less serious crimes, 3 months for serious crimes, 4 months for very serious and particularly serious crimes. Approval for extensions of detention may be requested by the investigating bodies from the Procuracy for complicated cases that need more time for investigation and that do not have grounds for rescission of the detention: one extension  of one month, for less serious crimes; two extensions, of 2 months and then of one month, for serious crimes; two extensions, of  3 months and then of 2 months, for very serious crimes; and three extensions of one month each for particularly serious crimes ( Is there a contradiction here: 7 months in all, compared with 9 months in all for the previous situation of very serious crimes?) The procuracy at the level corresponding to that of  the investigation body  where the case is being handled (either district, or province or central) will have the power of extending the detention period, with some variations depending on whether it is particularly serious offense or the third time of extension. In the particular case of national security, the Procurator General of the Supreme Procuracy  may extend detention one more time not exceeding 4 months. If detention is no longer necessary,  the investigation body must request the procuracy to rescind detention and release the prisoners or adopt alternative deterrent measures.  At the expiration of the detention period, release must also be ordered or alternative deterrent measures adopted.

It is to be noted that, in CPC 119,  the periods of investigation/ extension of investigation differ slightly from the periods of detention pending investigation: 2+2 months for less serious crimes; 3+3+2 months for serious crimes; 4+4+4 months for very serious crimes; 4+4+4+4 months for particularly serious crimes. But CPC has the last paragraph number 6 which protects the right of defendants: if at the expiration of the investigation period, if there is no proof of crime, the investigation must issue the decision to suspend investigation. And if the case is suspended, the deterrent measures, including detention, must be rescinded. CPC 94 (1). One should compare these Vietnamese provisions with American practice with regards to detention and the constitutional right to a speedy trial, discussed in the below-mentioned case of Barker v. Wingo  (5 years of detention before trial).

 However, the investigation can be re-launched under the name of renewal of investigation (phuc hoi dieu tra), additional investigation (dieu tra bo sung) and reinvestigation (dieu tra lai). CPC 121. No defendant would worry about  these prolongations of investigation if they do not affect his liberty. But can these procedures bring about another period of detention ? Even though paragraph 6 of CPC 121 states that the investigation body can abolish the deterrent measures (including detention), it also states that if there is ground to take detention measure, the detention and extension of detention for the procedures of renewal of investigation and additional investigation shall not exceed : (a)for  renewal of investigation: 2 months for less serious crimes; 3+2 months for serious and very serious crimes; 3+3 months for particularly serious crimes.; (b)for  additional investigation at the request of the procuracy : 2+1 months.

 AMERICAN PRACTICE ON ARREST AND DETENTION

 The constitutional standards applicable to arrest and detention are derived from the IVth Amendment on search and seizure  (already mentioned above) and the Vth Amendment  of the United States Constitution, which reads, in part: "No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentation or indictment of a Grand Jury…; nor shall be compelled in any criminal case to be a witness against himself…"

   The Fourth Amendment Standard

 The rules developed by state law in various states over the years from the federal constitutional standards of the Fourth Amendment are as follows:

a) an arrest pursuant to a valid warrant is reasonable and valid under both the US Constitution  and state law. Even with a warrant, if the arrest is in a home, most states require that the officer announce his purpose before entering ; and failure to do so renders the arrest invalid. There is an exception to  this requirement for exigent circumstances, such as clear probable cause of a violent crime, suspect is armed and believed to be in the dwelling and would escape if not arrested

b) a warrantless arrest is valid also under both common law and state law. (i)  At common law, and under the IVth Amendment, either a police officer or a private person has the right to arrest without a warrant for a felony committed in his presence (flagrante delicto), or for a misdemeanor amounting to a breach of the peace committed in his presence. US v. Watson,423 US 411 (1976) ( Thus, for a misdemeanor not amounting to breach of peace, even committed in the officer's presence, an arrest warrant is needed.) (ìi) By statute, most states permit an officer, and in some states, a private individual, to arrest without a warrant for either a felony or a misdemeanor committed in his presence, whether or not it is a breach of the peace. Moreover, for felony not committed in his presence, an officer can still arrest one who he reasonably believes has committed that felony, whereas a private citizen can arrest for a felony only if that felony has in fact been committed and he reasonably believes that the person is guilty.

The constitutional standard for warrantless arrest is probable cause.  The US Supreme Court states this general rule for arrest without warrant: at the moment of arrest, the police officer must have probable cause to make it--in other words, the facts and circumstances at the moment of arrest, known to them, personally or through an informant, as reasonably trustworthy information, are sufficient to warrant a prudent man in believing that the defendant had committed or is committing an offense .  Draper v. United States 358 US 307 (1959).

The time and  place of arrest affect its validity, even where there is probable cause to arrest. A warrantless arrest during daytime and in a public place is upheld. United States v. Watson, 423 US 411 (1976). A warrantless arrest in defendant's home, but in hot pursuit, is upheld also.United States v. Santana 427 US 38 (1976).  But a routine arrest without a warrant, for even felony, but by nonconsensual entry into the suspect's home, is invalid. Payton v. New York, 445 US 573 (1980).

Ruling on what constitutes an arrest, the Supreme Court in Immigration Service v. Delgado 466 US 1984 states that  a "stop" to question identity is not an arrest or detention  of the IVth Amendment. But if the person refuses to identify himself and then the police indicates he is not free to go, it is arrest and detention. Brown v. Texas 433 US 1979.

And this arrest/detention for information must have probable cause and must be temporary, lasting no longer than necessary to verify or dispel suspicion. Therefore, when a suspected drug courier, although lawfully questioned in an airport concourse, was taken to the police office 40 feet away without probable cause , that would be illegal arrest. Florida v.Roger 469 US 491 (1983).  It is an unconstitutional detention to transport, without probable cause,  a suspect to a police station for fingerprinting without his consent (his fingerprints are thrown out as inadmissible). Hayes v. Florida, 84 L.Ed. 705 (1985). The use of deadly force in making seizure of a suspected felon who is unarmed is unreasonable seizure under the Fourth Amendment, if it is not necessary to prevent escape and the officer has no probable cause to believe that the suspect presented a threat of death or serious injury to the officer or others. Tennessee v. Garner, 85 L.Ed. 1(1985).

However, the following detentions were valid. A 20-minute detention of a suspected drug  trafficker, occasioned in large part by his evasive actions, was not unreasonable. The Court considers the brevity of detention, the purpose of the stop, the reasonable time used, the choice of means of investigation that is likely to confirm or dispel the suspicion quickly, and the diligence in pursuing those means. US v. Sharpe 84 L.Ed. 605 (1985). The Court upheld the brief stop of individuals suspected (based on "wanted" flyers) of involvement in completed felony posing a threat to public safety. US v. Hensley, 469 US 1985.

The time limits for arrest and detention in the cumbersome American judicial process is contained in the constitutional standard of "Right to A Speedy Trial"  in the VIth Amendment of the US Constitution, which states, in part, that :" In all criminal proceedings, the accused shall enjoy the right to a speedy and public trial….". The defendant is guaranteed  a trial within a reasonable period of time . This has been applied to state courts by the Due Process Clause of the Fourteenth Amendment.  A violation of the defendant's right to a speedy trial requires the complete dismissal of the charges against him.  Strunk v. United States 412 US 434 (1973). The Internal Revenue Service has sued the Vietnamese expatriate political  organization called Mat Tran Quoc Gia Thong Nhut Giai Phong Vietnam (National United Front for Liberation of Vietnam) for illegal collection of money among the Vietnamese community in the U.S. and tax evasion,  but because of the delay ìn prosecuting by the IRS, the case against the brothers of the Founder and others who ran the financial organizations of the front was dismissed by the Court.

The length of lapse time alone is not sufficient and usually a 6-month period of delay is no problem. Beyond 6 months, other balancing factors must be considered in a balancing test to evaluate whether the right to speedy trial is violated by long detention. Barker v. Wingo, 407 US 514 (1972) enumerated the factors to be assessed: (1) length of delay , (2) reason of delay,(3) defendant's assertion of his right to a trial, (4) prejudice to the defendant, which includes oppressive pre-trial detention, the anxiety that his defense will be impaired by the death or disappearance of defense witnesses, or significant lapses of memory of his witnesses. The court will weigh the reasons for delay and determine whether the state made a "diligent, good-faith effort" to bring the defendant to trial. In Barker case, the trial was delayed for five years after his arrest. The prosecution had sought many continuances, but the defendant did not object, nor did he assert his right to a speedy trial until three and one-half years after arrest. The Court found there was no serious prejudice to the defendant, who apparently did not want a speedy trial.  One should compare this American case law on length of detention and  right to speedy trial with the Vietnamese Criminal  Procedure Code, articles 119 and 94(1), discussed above.

The time when the right to a speedy trial begins to accrue is the day the defendant becomes an "accused", with the indictment or otherwise; and therefore the time period of the speedy trial does not extend to the period prior to arrest . The prosecution can take time to discover, investigate and prosecute the case.

After the terrorist attack of 9/11/2001, the US government has detained a large number of aliens for an indefinite time period without court review, in many cases on the ground of immigration law violations (only a fraction of the detainees know anybody who know the terrorist organization Al Qaeda), and also has affirmed that immigration detention  is not considered criminal detention. In June 2004, the United States Supreme Court has recognized  the procedural right of detainees to challenge detention in US civilian courts (rejecting the executive branch's position that they must go through military courts under the President as commander in chief), because without court oversight, the executive would go too far in detention without charge. But the Supreme Court talked only about screening procedures and not about what can be done with terrorists after that. On June 29,2006, The Court ruled in the case of Hamdan v. Rumsfeld (Hamdan being former driver of Osama bin Laden)  that the main trial of the al-Qaida and Taliban detainees in Guantanamo Base cannot be held in front of the military commission set up by the government, because this commission lacks the standards of  fairness of the US military code of justice and the Geneva Conventions and is thus illegal.

It has been suggested that the United States needs an international convention on the length of detention of terrorists in order to reconcile the two seemingly contradictory needs,  in the necessarily prolonged  response of the United States against terrorism, which must be also sustainable, i.e. not sabotaging the freedom values of the American rule of law  : (1) to avoid sudden disastrous terrorist attacks, it is critical  to be able to detain without charge some terrorist suspects, and (2) to  avoid the apparent violation of the basic principle of law against detaining people without charge, thereby losing the American way of life and civil liberties  and moreover, losing American prestige and the important cooperation from other countries and risking the creation of more terrorists (already, 75%-90% of people in  Muslim countries approve of more resistance to the United States in Iraq).

This issue of balancing (or reconciling) security against terrorism and civil liberties in a democracy is a difficult global issue.  As United States Supreme Court Justice Jackson said, "The Constitution is not a suicide pact".  It is especially difficult in Europe, where the terrorists are " playing with the civil liberties of European democracies and… shopping for safe havens" (in the words of Professor Gilles Kepel of the Institut d'Etudes Politiques in Paris). In Britain, Islamic cleric Abu Qatada, who had extensive contacts to terrorists worldwide, including those in Al Qaeda, and  preached jihad from his mosque in London to several suspects in the Madrid (Spain) commuter train bombing , was ordered to be released from detention without trial by Britain's highest court, which  ruled that the 2001 Security Act permitting that is unlawful. After the raging debate, Britain passed a new law  allowing detention in the form of "controlled order", such as electronic tagging, strict curfew, restrictions on phone and Internet use.  In March 2005, the Club of Madrid, an independent organization which included 55 current and former heads of state and government, adopted the "Madrid Agenda" calling for a "global democratic response to the global threat of terrorism" with  better cooperation among the democracies to fight terrorism while also ensuring civil rights; among the measures, the document also calls for aid to poorer countries, to eliminate the root cause of  terrorism: poverty and despair. (Boston Globe, March 13,2005).

On the other hand, in ordinary criminal proceedings in the United States, many courts, especially the state courts, have made efforts to address the problem of backlog of felony cases with deadlines for moving cases to trial, even though the reasons of the backlog can be of  many types : time for DNA analysis, delays by the prosecutors and the defense, shortage of judges,detectives and court reporters. For example,in Massachusetts, the backlog of felony cases pending more than one year before trial  has increased from 1822 in 2001 to 3358 in 2004 (53% of caseload).  The trial court has set deadline for trial of felony cases as 360 days for murder and other serious crimes, and 180 days for lesser charges. But some defense counsels  actually do not want a speedy trial but want to prolong the pre-trial stages in order to bargain with the prosecutors for a lesser penalty or to have a better chance for acquittal in a trial, when ,with time, the witnesses disappear, the evidence evaporates and the memories lapse . There is a difference between murder cases which almost always go to trial, and other felony cases which are resolved by plea bargain in 90% of the times,  after the full investigation has revealed the incriminating facts. (Boston Globe, March 14,2005).

 The Fifth Amendment Standard

The Fifth Amendment  right not to have to make self-incriminating statements has been elaborated in the Miranda case , which requires that the arresting officers have to tell a suspect  they are taking  into  custody the following words or equivalent words: "You have the right to remain silent. Any statement you make may be used  against you later in a court of law. You have the right to an attorney; and if you cannot afford an attorney, one will be appointed for you if you so desire".  Miranda vs. Arizona 385 US 436 (1966). In many localities in the United States, these required  words of warning for the police to use have been translated into foreign languages, including Vietnamese, to be used in case of arrest of non-English speaking people.

The right to remain silent means  that  the arrested person ,later to be detained and formally accused  in a prosecution, does not have to say anything to prove his innocence and the burden of proof is shifted toward the government or the prosecution. Vice-versa, one can suppose that any system of criminal procedure that assigns the burden of proof in criminal prosecution to the government and exempts the defendant from proving his innocence would have to logically accept the right to remain silent, especially if there is also a prohibition against torture and coercion.

            But after the terrorist attack of 9/11,  facing the silence of the terrorist suspects during interrogation, many American intelligence agents, including the military interrogators and the Central Intelligence agents, have resorted to extreme interrogation techniques amounting, in many cases, to torture of the detainees, not only in the front line detention centers in Iraq and Afghanistan, and at the Guantanamo base (in Cuba), under U.S.jurisdiction ,  but also in other countries, such as Jordan and Egypt, where the United States has sent detainees for harsh interrogation (this kind of outside contract for interrogation has been called "outsourcing torture").

            The Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, ratified by the United States in 1994, prohibits torture of any person, for any reason, by any government, with "no exceptional circumstances whatsoever", i.e.  it applies to everyone, including enemy combatants and terrorists and that Convention cannot be evaded by "outsourcing" to a country for torture  during interrogation.  Many Americans, so enraged by the cruel 9/11 attacks on civilians, would approved of torture in a "ticking bomb" scenario, where a deadly terrorist attack is about to happen and torture might force a terrorist suspect to reveal the plot in order to save thousands of innocent people, and where a refusal to use torture that allows another attack to happen would  be wrong. Former British Ambassador to Uzbekistan, Craig Murray, said on March 21,2005 that for three years, the United States have routinely handed over terrorist suspects to Uzbekistan, a regime known to have resorted o systematic torture to elicit confessions (as stated in the US State Department Report on Human Rights ) and that the CIA head of mission in Uzbekistan told the Ambassador's Deputy that  the CIA knew their intelligence was probably obtained by torture but that was "no problem" because it is not illegal to obtain intelligence by torture and it is only illegal to use it in legal proceedings (Boston Globe, March 24,2005.). Professor Heymann of Harvard describes this situation as follows: the top wanted to be permitted to go far; the lawyers provided "legitimacy" and immunity; and the ground level did go too far. But a number of judicious middle-level officials, such as the Defense Department's joint investigation team on abuse at Guantanamo in December 2002, tried to dissociate themselves from the harsh interrogation there (revealed in a recently declassified report , Boston Globe March 16,2005).  So far, 27 detainees in US custody in Iraq and Afghanistan were victims of homicide or suspected homicide, although the loss of US credibility is somewhat mitigated by the fact that many soldiers have been court-martialed. (Boston Globe, March 26,2005).

            But in the final analysis, torture , besides going clearly against international and domestic law, is also unproductive and may even lead to false lead, and therefore cannot save the people from the "ticking bomb", and moreover, may create more terrorists and expose Americans to torture in retaliation when they become prisoners. The other means to get comprehensive intelligence for counter-terrorism are better: intensive interrogation, purchasing and matching intelligence data, and careful analysis.

            At the National Intelligence Conference in February 2005, of 600 people in this business, including 2 former CIA Directors, and current officials from the Federal Bureau of Investigation and the National Security Agency, congressmen, defense contractors and intelligence experts in think tanks, an interrogator for the US forces in Iraq, Mr. Bill Tierney, after exclaiming that " The suspects didn't break" and "Are we litigating the war or fighting it?", agreed that the seasoned interrogator has to control the sadism tendency and use "smarts over smacks", i.e. psychological techniques that are fruitful. On March 23,2005 the Pentagon is preparing a 142-page draft guideline, "Joint Doctrine for Detainee Operations", to order US forces to apply humanitarian treatment to detainees, and protect them against all acts of violence, theft, insult, reprisals , even if the detained persons provoke them. (Boston Globe, February 13 and April 9,2005).

ALTERNATIVES TO DETENTION: HOUSE ARREST, GUARANTEE AND BAIL

              HOUSE ARREST. CPC 91.  Instead of detention, the authorities empowered to detain/arrest a person can issue a warrant of house arrest or prohibition of leaving domicile , if the charged person/ the accused has a definitive address and file a promise not to leave domicile (unless permitted to leave temporarily for legitimate reasons) and to present later at the place stated in the summons . The institutions of state power in the locality of the person will be notified and entrusted with the power to administer and supervise the house arrest. Violations of the house arrest will bring sanctions.

            GUARANTEE . CPC 92. Taking into account the nature and degree of seriousness of the crime and the background of the charged person/ the accused, this person may be guaranteed, by two relatives of good moral and law-abiding character, or by the head of the organization to which the person belongs, about his promise not to commit further crime and to show up later as summoned. The authorities empowered to detain/arrest will also be the authorities to decide on acceptance of guarantee, instead of imposing detention.

BAIL. CPC 93. Instead of detention, bail money or bail property may be accepted by the authorities with power of detention/arrest, after considering the nature and degree of seriousness of the crime and the background of the charged person/the accused, as well as his property. Bail money or bail property will be confiscated if the person fails to appear without good reason and the person subject to other deterrent measures . Otherwise, they will be returned after completion of obligations.

AMERICAN PRACTICE IN ALTERNATIVES TO DETENTION:  PROBATION CONTROL AND BAIL

             While waiting for trial, American courts also have alternative measures to detention, (1) to save the expenses for housing the huge number of inmates which are enormous in all the federal and state jails and prisons (The United States is the country with the highest percentage of population in prison in the industrialized world: 2 million persons, or 5 times more than that of the next highest Western nation, and among them, more than half are black Americans, while the percentage of Blacks in the general population is 12%  ) ; and also (2) to control the whereabouts of defendants and to assure they will present themselves in court for criminal proceedings. 

CONTROL BY THE PROBTION OFFICE OF THE COURT.

              During the pre-trial stage, house arrest is just one of the many measures organized to control the accused pending trial. Because the American system respects freedom of movement and would want the accused to continue working and be a productive member of society, there are other measures managed by the Probation Officers in the Probation Office of the Court, working under the direction of the Judges:

1. The defendant is released on personal recognizance but, in many cases, he also has to sign a contract with the Probation Office of the Court in which the defendant promises to obey all federal and state laws, to notify changes of home and work addresses, to report regularly in person or by telephone to the probation officers, to ask permission for travel out of the state [many Vietnamese had to ask for permission to go back to Vietnam for visits, pending trial] and to restrain from certain actions, such as going near the victim (whether the victim in a street brawl or his own wife which he had abused at home) or going to the  place where his alleged offenses took place (for example, the shopping mall where he committed theft or burglary) .

2.  Also there is technological means to monitor and control the defendant, such as to have him wear an electronic device on his leg, so the government can track him down 24 hours a day . 

 BAIL .

        The right to post bail for temporary freedom pending trial is incorporated in the Eighth Amendment of the US Constitution, which states, in part, that: "Excessive bail shall not be required.." Bail can be cash money or guarantee of other people with their property (for example, a house) or their commitment to pay if the defendant escapes (bail bond company).  If the bail is set too high, the defense counsel can appeal to the appellate court for bail review and reduction.

        However, there is exception to the right to get out on bail if the defendant is a danger to society, in which case the Court can hold him in detention  to wait for trial. There must be a hearing on this detention without bail, for the defense counsel to present evidence to argue for reversal of the court decision to hold the defendant. 

 

III.  RIGHT TO DEFENSE 

CVN 132 guarantees the right of defense of the accused, standing in his own defense or using the service of defense counsel. This article of the Constitution also declares that the bar organizations are established to help the defendants and other litigants to defend their lawful rights and interests. CPC 11 repeats the same guarantee of the right of defense and adds that the investigating body, the procuracy and the court shall have the duty to ensure the right of defense for the detained person in custody (nguoi bi tam giam) , the charged person (bi can) and the accused (bi cao). 

When to have counsel ?

 Thus the defendant here does not have the right to a lawyer at the time of his arrest and can ask for access to a lawyer when he is detained.

The defendant in the United States is in the same legal situation, except that under the Miranda rule, he has to be informed of his right to counsel from that time on,  by the arresting officer: the arresting officer must orally tell him that he is entitled to an attorney's presence before he says anything to the law enforcement officer and he has the right to be silent until the attorney comes.  The Vietnamese Code does not require this warning of the right  to counsel, but provides, in CPC 11 above, for  the duty of all government agencies involved to ensure  that the defendant  enjoys  the right to counsel from the time of detention (tam giu, remand in custody) onward.  CPC 58 (paragraph 1) is explicit about this: for persons arrested in urgent cases and in flagrante delicto, defense counsel will participate when there is  the decision on remand in custody, or temporary detention (tam giu); otherwise [if there is no custody or temporary detention yet and only the investigation of a crime or a person],  the defense counsel will participate in the proceedings only after the  institution of the prosecution (khoi to),  which is the equivalent of the filing of formal charge for prosecution or the issuance of the grand jury indictment in the United States.

 However, if  there is need to protect secrecy of investigation in national security cases, the defense counsel will be permitted by the Procurator to participate in proceedings only after the conclusion of investigation .CPC 58 (1). [ Compare: with  US practice after 9/11  for enemy combatant, discussed below ].

Also, CPC 58(2)(b) states that  defense counsel has the right to submit a  proposal (de nghi) to the investigation body to ask for advance notice about the time and place of interrogation of the defendant, so that he/she can be present there.  This wording ("proposal") and the practice in Vietnam make it difficult for defense counsels be present at the interrogation sessions to defend the defendant's interest. At the April 2004 Training Workshop for Defense counsels in Hanoi, under the sponsorship of the Ministry of Justice, the Hanoi Bar Association, and the International Bridge for Justice (Geneva), high officials of the Ministry and the Chief Judge of the Criminal Department of Supreme People's Court agreed that further reform of the law is necessary for the earlier presence of defense counsels in the criminal process, because there were cases wherein in practice the defense counsels were not notified to begin working for their clients for 9 days and in case of national security , there is no defense counsel until the completion of investigation. 

How to have counsel ?

CPC  57.The detained person/ the charged person/the accused can select his defense counsel  who may be a lawyer or a people's advocate or legal representative. If he does not retain defense counsel, the investigating body, procuracy or court shall have the duty to request the bar association to send a defense counsel to him or to request the Vietnam Fatherland Front or a member organization of the Front to send a defense counsel for its member, if the crime is punishable by death, or the person is a juvenile or person with physical/mental defects. The person can accept, refuse, or request change of, the appointed defense counsel.

However, before he can begin working for his client, the defense counsel, whether chosen by the person or appointed by the bar association or the Fatherland Front, must be accepted by, and given a certificate by, the investigating body, procuracy and court, within three days of receiving the proposal of the defense counsel (within 24 hours of receiving proposal if it is a detention case). The organs just mentioned can refuse to issue the certificate with specific reasons. CPC 56(4).  Thus the right of defense is subject to the will of the adversary of the defense (investigating body, procuracy) , instead of just to the will of the impartial arbiter, i.e. the court. This is different from the situation in the United States. The Chief Judge of the Criminal Department of Vietnam's Supreme People's Court opined during the above-mentioned Training Worshop that because  the government has the  obligation to ensure the right to counsel for the defendant(CPC 11)  and its refusal to issue the certificate of acceptance of the counsel must adduce specific reasons (CPC 56(4)), the right to counsel is well protected by law. However, he agreed that in practice, because the dossiers usually do not contain any filing of the proposal of representation by counsel , it is difficult to find out in the investigation whether there is a well-grounded denial of the certificate of representation or there is simply no proposal of representation by any counsel.

As for the nearly 400 practicing Vietnamese attorneys who attended the Worshop, they made two points in the summary of complaints about their current professional situation : (a) to give the power to issue certificate of counsel representation to the investigation body (police) and the procuracy, who are their opponents in the criminal process, is tantamount to permitting them to act both as soccer player and umpire; (b) the police chief usually pretends to be absent from his office and thereby delays the issuance of counsel's certificate of representation until the interrogation date, thus depriving the counsel of the time needed to talk to clients for better preparation for interrogation; and moreover, the certificate allows, at the end of a long and expensive trip to the detention place, only one hour of visit with clients, not enough to permit a full and complete consultation session with clients.

All people in the Worshop, from the judges to the defense counsels, agreed that there must be reform of law and regulations governing this aspect of the defense counsel's role

The defenders (whether lawyers or  people's advocates) of the interests of  related parties in the case, such as the victim, the civil plaintiff, the civil defendant, the person having interests and obligations involved in the case, must also be accepted by the investigating body, procuracy or court. CPC 59 (1). 

Counsel's work

However, once the defense counsel is at work, the law gives him much opportunity to work for his client as an effective counsel if he dares to do so, especially if he emphasizes to the authorities conducting the proceedings that they have a legal duty to explain, and ensure the respect of, the rights and obligations of all the parties participating in the criminal process. CPC 62. The defense counsel can do these things provided for in CPC 58, to help the defendant:

1. Meet with the defendant who is being detained; and keep confidential the secrets he gathers during the exercise of his duty ( this CPC 62 (3f))

2. Read all the record of the file (case-dossier) and copy all the important documents ;  and collect all documents and objects and background information from the defendant, his relatives, his workplace;

3. Get advance information about the time and place of the interrogation of the defendant and appear at the place where that testimony takes place, raising questions to him to assist him in the testimony; also provide related documents , objects to make claims. CPC62, in paragraph (3a), emphasizes that the defense counsel has the duty to assert all means to find out exonerating and extenuating circumstances

            4.Participate in hearings and oral arguments in court and make claims against decisions of authorities conducting proceedings.

5. Request the replacement of persons conducting the proceedings and others such as expert, interpreter

6. Appeal against judgments, decisions of the Court 

One of the most important roles of the defense counsel is to make sure that the defendant has the right not to be tortured or coerced (CPC 6) and to encourage the defendant not to be afraid  or  feel coerced into false confession, to the detriment to his interests. The counsel can tell the defendant that he is not guilty until proven guilty and being imposed a guilty judgment from the court (the presumption of innocence in CPC 9) and that the law clearly states that "the burden of proof is on the bodies conducting the criminal proceedings and he is entitled to his innocence without having to prove that innocence"(CPC 10). Confession inconsistent with the other evidence in the case (presumably due to coercion) shall not be considered evidence (CPC 72 (2)). Articles 63 and the rest of chapter V of CPC talk at length about the duty of the state to collect evidence in criminal cases, in order to shoulder the burden of proof. Thus the defense counsel can suggest that the defendantmight take advantage of this right not to have speak up to prove his innocence and therefore, to remain silent, as in the Vth amendment of the Bill of Rights ìn the US Constitution.

Some other articles of  the CPC seem not to recognize this right to silence, for example, in  CPC 71 (on Statement of the arrested and the detained persons) and CPC 72 (on Statement of  the charged person and the accused ), the defendant "presents the facts of the case" (" trinh bay ve nhung tinh tiet"). Does this mean he is obliged to speak up about the fact ? The proper interpretation should be  that these articles give the defendant the option to speak up, but he is not obliged to speak up and has the right to remain silent, because these articles do not use the word "phai trinh bay" ("must present") but simply "trinh bay" ("presents") and moreover, CPC 10 and CPC 6  also state that  "the government has the  burden of proving the offense, and the defendant has the right but no obligation to prove his innocence" and "all forms of coercion and torture are prohibited".

Only CPC 83 uses the word "must" in the paragraph stating that " After making arrest or after receiving the person arrested in urgent cases and in flagrante delicto, the  investigating authority  must  immediately take the declaration of the arrested person and in 24 hours must issue the order of remand in custody (temporary detention) or release the person ". But the word "must" here refers to the authority 's obligation of diligent work, and the defendant can still remain silent. 

THE RIGHT TO AN ATTORNEY IN AMERICAN PRACTICE  

We will discuss below in more details the right to an attorney announced at the time of arrest and beginning custody, as specified in the Miranda warning on the basis of the Vth Amendment, as well the  right to defense counsel  in all stages of the criminal proceedings, based on the VIth  Amendment of the U.S. Constitution, which states, in part,  that "In all criminal prosecutions, the accused shall enjoy the right  to a speedy and public trial …and to have assistance of counsel for his defense".

Thus, there are two different rights to an attorney with different underlying policy rationales : (1) The Fifth Amendment right to counsel, elaborated in the Miranda warning, attaches when the defendant is arrested and subject to custodial interrogation ; the right to an attorney at this stage serves the purpose of  insuring fairness of interrogation during custody. (2) The Sixth Amendment right to counsel attaches only at the initiation of formal adversary criminal proceedings. Kirby v. Illinois 406 U.S. 682,689 (1972). This right to an attorney has the purpose of guaranteeing the right of an accused to rely on counsel as a medium between himself and the state, and to communicate to the police only through counsel. 

1. The Fifth Amendment right to counsel upon arrest and custody.

After the Miranda  rule was set forth in 1966, police still violated it indirectly by failing to inform the suspect that his attorney or the attorney hired by his relatives requested to be present and by misleading the attorney as to the place of detention.  Commonwealth v. Sharman 389 Mass.287,291 (1983); Commonwealth v. McKenna 355 Mass. 313,324 (1969), Weber v. State 457 A2d 674,686 (Del 1983) , Haliburton v. State 476 SO 2d 192,194 (Fla 1985) .It has been quite a struggle against the police for many years in the American courts for the respect of the right to counsel.

Commonwealth v. Mavredakis ,430 Mass.848(2000) at 861  held that "When an attorney identifies himself or herself to the police as counsel acting on a suspect's behalf, the police has a duty to stop questioning and to inform the suspect of the attorney's request immediately. The duty to inform applies whether the attorney telephones or arrives at the station". Also the suspect himself can assert his right to counsel. Edward v. Arizona 451 U.S. 477,484-485(1981) stated that a suspect in custody who invokes the right to counsel during an interrogation may not be questioned further until a lawyer is made available or unless the suspect himself initiates further communication.  Also, the police cannot use trick to lure a suspect into talking, for example by offering to explain the criminal justice  system to invite him to talk. United States v. Johnson 812 F 2d 1329,1331 (1986).Police cannot use surreptitious questioning by undercover agents posing as fellow inmates. People v. Perkins 618 N.E. 2d 1275,1281-1282 (Ill.1993). However, a volunteered statement   is admissible; for example ,after asking for a lawyer, defendant said "I admit it", Commonwealth v. Saroust Noon 426 Mass.152,157 (1977), or the defendant "blurted out" a statement , United States v. Guido 704 F 2d 675,678 (1983).

But there are some tightening up of the conditions for asserting this right to counsel. Professional criminals cannot use this right to counsel to claim a kind of "house counsel" because of prior escapades. United States v. Masullo 489 F 2d 217,223 (1973). First, there must be a genuine attorney-client relationship; if the lawyer does not officially represent the suspect, the lawyer cannot stop the interrogation. A lawyer might have represented a suspect on a firearms case thirteen months earlier, but there is no evidence that that lawyer is his attorney for the current murder case. Commonwealth v. Shipps,399 Mass.820 (1987). Second, the police is not accountable if the attorney lacks diligence and does not come in time. "The suspension of questioning will apply only so long as the attorney appears at the station within a reasonable time. Mavredakis, cited above.

 

2. The Sixth Amendment right to counsel after formal charge

This right attaches only "after the government's role has shifted from investigation to accusation and the defendant finds himself faced with the prosecutorial forces of organized society" Kirby v. Illinois, supra ,at 689.

Police misconduct is the primary reason for the necessity of the right to counsel at this stage. The Federal Bureau of Investigation (FBI) was seriously violating the right of the defendant in quite a few case. For example, a World War II hero ,wrongly condemned because of FBI mishandling of  information, did not see his honor restored until his death at 78 years old.

When does the right to counsel attach?

 The VIth Amendment right to counsel attaches at the "critical" stage of confrontation between the defendant and the prosecutorial machinery of the state. United States v. Wade 388 U.S. 218, 224 (1967). The routine of complaint and arrest warrant does not amount to a formal charge commencing adversary proceedings. Commonwealth v. Smallwood,379 Mass.876(1980) . On this matter, the Vietnamese Criminal Procedure Code ,article 58(1), as stated above, protects the right to counsel at the same starting point: the institution of the criminal case (khoi to).  In American law, the defendant has no VIth Amendment right to counsel  during the pre-indictment plea negotiation .United States v. Moody 206 F 3d 609,614 (2000)., or during non-confrontational proceedings, such as a psychiatric examination ,United States v. Bondurant 689 F 2d 1246,1249 (1982),or a decision to submit to blood alcohol test, Commonwealth v. Brazelton 404 Mass. 783,785 (1989). No right to consult attorney while on witness stand, in Grand Jury for example, except that the witness may need to ask a lawyer about his possible assertion of his 5th amendment right against self-incrimination and to remain silent about his past act.  Perry v. Leeke 488 U.S. 272 (1989).The attachment of this right to counsel is also restricted to the specific offense being prosecuted, because it does not preclude police interrogation on unrelated offenses. McNeil v. Wisconsin 501 U.S. 171,175 (1991).

   How to assert this right to counsel? Defendant must affirmatively request appointment of counsel or retain counsel himself.

  The impact of this right to counsel is as follows. (i)  After this right to counsel attaches, any statements from the accused during subsequent  police-initiated custodial questioning are inadmissible . McNeil v. Wisconsin, supra, at 179 . (ii) Prosecutor's contact with a defendant who has attorney violates the ethical rules despite the fact that defendant circumvented his lawyer to initiate plea bargain. United States v. Lopez 4 F 3d 1455(1993). (iii) There can be no surreptitious interrogation. After formal charges are filed, the government cannot use informants (undercover agents) to illicit incriminating  statements from a represented defendant . Maine v. Moulton 474 U.S. 159,176 (1985). The government cannot recruit a cell-mate to coax incriminating statements from an indicted defendant. Massiah v. United States 377 U.S.201,206 (1964). But there is no violation of the VIth Amendment when the cellmate simply "kept his ears open" and reported defendant's incriminating remarks. Kuhlman v. Wilson 477 US 436

 Waivers of this right to counsel must be voluntary and informed, although they need not be explicit, for example, defendant initiated contact with agent, United States v. Monti 577 F 2d 899, 904 (1977),or insisted on making a statement prior to the conference scheduled with lawyer, Commonwealth v. Curtis 388 Mass.637 (648) (1983), or blurted out a statement exonerating a co-defendant, United States v. Melanson 691 F 2d 579,585-588, or volunteered incriminating statements to a cellmate, Commonwealth v. Libran 405 Mass.6343,639-640.

Sanctions for violations of this right to counsel.  Defendant must show government misconduct had an adverse effect on the effectiveness of his counsel's representation or otherwise prejudiced his defense. United States v. Morrison 449 U.S. 361,365 (1981). If the government gained nothing of evidentiary value or  is unaware of violation, there is no sanction. United States v. Solomon,  679 F 2d 1246,1251 (1982)

Where prejudice is shown, the usual remedy is suppression of evidence or  statement, or even dismissal with prejudice. Commonwealth v. Fontaine 402 Mass.491,497 (1988) (officer electronically monitored a discussion between defendant and his lawyer), United States v. Levy 577 F 2d 200,210 (1978)(informant retained defendant's  counsel  as a means of infiltrating a defense strategy meeting).

Some cases may even be dismissed without a showing of prejudice. Commonwealth v. Manning 373 Mass.438,443-445 (1977) (agents contacted defendant with deliberate purpose of disparaging his counsel's ability).

In practice,  the right to counsel is sometimes difficult to exercise for lack of government funding for free counsel appointed by the court for indigent defendants, even in the state of Massachusetts, for example, which has been the vanguard state, since the 1960's and 1970's, in recognizing citizens' right to free counsel for crimes with the possible penalty of imprisonment. This is probably  the situation  in Vietnam also, unless the government has good funding and/or the appointed attorney's fee is small, because everywhere, funding for free service is always a budget problem. There is a Vietnamese proverb to that effect: "Cai kho bo cai khon" (" poorness restricts wisdom").

After the terrorist attack of 9/11, the United States military established a system of administrative hearings in the summer of 2004 at Guantanamo Base (Cuba) to review the status of 558 detainees captured in Afghanistan and detained for three years already, to determine whether they can be held properly and indefinitely as enemy combatants, and not prisoners of war, thereby depriving them of  the right to defense counsels, the right to see and rebut evidence that is considered classified, or the right to appeal decision. In June 2004, The United States Supreme Court disagreed, stating that federal courts have jurisdiction to hear these detainees' cases and mandating that detainees have the Vth Amendment right to "due process" (including the right to counsel).  On January 31,2005, pursuant to this Supreme Court's decision,  Federal district Court Judge Joyce Hens Green, under whom the Supreme Court consolidated all the claims of the Guantanamo detainees,  ruled  that the detainees must be allowed to challenge their imprisonment in a federal court, with the assistance of a defense lawyer, to make claim that they are innocent and are entitled to greater protections under the United States Constitution and the Geneva Conventions. The Judge wrote about the necessity of balancing national security and civil liberties: " Although this nation unquestionably must take strong action under the leadership of the Commander-in-Chief to protect itself against enormous and unprecedented threats, that necessity cannot negate the existence of the most basic fundamental rights for which the people of this country have fought and died for well over two hundred years." (Boston Globe, Febraury 1,2005). This decision follows other recent decisions which have gone against the Bush administration, in the name of judicial protection of the rights of individuals.

 

IV. ENFORCING THE RIGHTS OF THE DEFENDANT : DISCIPLINARY AND LEGAL SANCTIONS AGAINST, AND PUBLIC OPINION MONITORING OF, VIOLATIONS OF RIGHTS

 The principles enunciated in the CVN and the CPC are very distinguishingly Vietnamese .

DISCIPLINARY AND LEGAL SANCTIONS AGAINST VIOLATIONS OF DEFENDANT'S RIGHTS.  CVN, article 72 provides for " severe sanctions for authorities who violate the law on arrest, detention, prosecution and judgment, causing damages to others" and CVN, article 74 provides for " compensation and restoration of honor" for the victims of violations of  lawful rights. CPC 12 , 29 and 30 order the authorities conducting criminal proceedings to strictly obey the regulations of the law and  would subject those who unlawfully conduct arrest, custody, detention, investigation, prosecution, adjudication  to disciplinary sanctions and penal penalty, as well as would require them to pay compensation and restore honor to the victims.

            Authorities conducting criminal proceedings shall not be permitted to sit and rule on the case, if there are good grounds to believe they may be unfair. CPC 14. They must be disqualify themselves from the case, or else be replaced at the request of the defendant and other parties in the case, if there is  conflict of interest (They have been victim, civil plaintiff, civil defendant, person having interest, defense counsel, representative, witness, expert and interpreter in the case or are relative of the charged person/the accused) or there is some other ground to suspect partiality on their part. CPC 42 and 43. As for the judges and the assessors, they must disqualify themselves if there is conflict of interest, or if they had participated in the case as investigator, procurator, court secretary or judge in the first instance trial, or if they are on the same bench and are relatives of each other. CPC 46.They are supposed to be independent and act pursuant to the law only. CPC 16.

 PROCEDURES OF COMPLAINT AND DENUNCIATION  IN CRIMINAL PROCEEDINGS.

            The CPC has a whole chapter 24 on the right of individuals (including the defendants, of course), as well as agencies or organizations in  proceedings, to file complaint against acts in criminal proceedings that are violations of law or infringements of their interest, and the complained person, whether the investigating person, the procurator, or the judge, or another person conducting investigation, must give explanation with evidence justifying the legality of the acts. The complaint must be handled within seven days by the head of the investigating body, the chief prosecutor or president of the court, and if not satisfying to the complainant, handled within 15 days by the next higher level of those authorities. But the time limit for handling complaints about arrest, remand in custody and  detention must be handled immediately by the procuracy, or if extra time is needed, within 3 days.

            Chapter 24 also permits any citizen to make denunciation on violations of law by authorities conducting proceedings causing or threatening to cause damages to the state, the agencies/organizations and the citizens.

 

 PUBLIC OPINION MONITORING.  The leaders of public opinion in the nation, such as state agencies, Vietnam Fatherland Front, member organizations of the Front, public representatives shall have the right to monitor and supervise the activities of the bodies and persons conducting proceedings, and they may ask for review of and solution to unlawful acts by those conducting proceedings. CPC 32.  

SANCTIONS AGAINST PROSECUTORS AND JUDGES IN AMERICAN SYSTEM 

 Because of the principle of judicial immunity of American judges in their professional work, they incur no personal liability to pay compensation and to restore honor to the defendant for their mistakes in criminal proceedings. The remedies  for the defendant are the following:

1) to ask the trial court to revise and revoke the sentence, but this is only on the sentence, and not a review on the issues of fact which, after the jury decision, would have the res judicata effect

2) to appeal the case from the trial court to the appellate court for review, but this review is only for error of law and abuse of  discretion (the appeal court generally gives a lot of weight to the trial judge for fact-findings) , not for the total retrial on the issues of facts at the appellate level , as in the two-level adjudication of Vietnam (of  such other civil law system as France, for example). Sometimes, as in Ornelius v. United States, 5-29-1996, the Appeal Court was ordered to conduct a new review of facts surrounding  an improper police search of a car without a warrant.

 If the appellate court finds error of law (say in ruling on motions during trial), the appellate court will remand the case, sometimes to the same trial judge, for retrial, which is very uncomfortable and worrisome for the defendant. Occasionally, the appellate court would render a very short judgment in one or two lines, stating that it rejects the appeal and affirms the trial court's judgment, which is unsatisfactory to the defendant.

 The judges can be removed from the bench by impeachment, for serious offenses such as corruption , but impeachment is a very difficult road for the ordinary defendant., and it seems that he is embarking on total war with the judge, instead of narrowing the dispute to his ruling on his specific case.  The method for the defendant to avoid a judge is only available before  the  trial: ask him to disqualify himself before the trial, but disqualification requires solid grounds.

As for the prosecutor , there have been cases of prosecutorial misconduct that is flagrant, such as not checking carefully the testimonies of the accusing witnesses for lying/perjury or omitting the exonerating evidence, which resulted in long sentences or even the death penalties for the defendants. Once the defendants are vindicated by newly discovered facts , say from scientific evidence such as DNA tests, after many years in jail (for some defendants already executed by electric chair, it would be too late), the only recovery for the defendant is to sue the state for damages. As for the prosecutor, at most, he would be subject to disciplinary measures in the internal management of the prosecution office. Again, the prosecutor incurs no personal liability for compensation to the defendant because  the defendant has to seek recovery from the state.

 

SOME TENTATIVE CONCLUDING REMARKS 

1. There are more similarities than differences between the two criminal law and criminal procedure systems of Viet Nam and the United States, at least in the crucial area of the rights of defendants, an important component of the rule of law. In Vietnam, there are even some aspects of the jury system, a particular feature of the Anglo-American legal system provided for in the VIth Amendment of the US Constitution. The people's jurors in Vietnam are appointed by the Court to sit and decide cases with the judge on an equal footing* .

2. The United States has taken hundreds of years of case law, developed slowly from the founding days of the country with the Bill of Rights in the Federal Constitution, to construct a refined system of principles and processes for the defense of the defendant's rights and other issues in criminal law and procedure. On the contrary, Vietnam, being a member of the civil law system since the French Colonial days and the Soviet-influenced days, has quickly codified a comprehensive Criminal Procedure Code incorporating many fair principles of a modern criminal justice system (although implementation is still an issue).  Compared to another Communist country, The People's Republic of China, Vietnam's rapid codification of law is ahead of the slower development of law in The PRC. This rapid development of law happened, not only because of  Vietnam's hurried drive toward modernity in the era of "Renovation" (Doi Moi), but also because of the rapid elaboration of statutory law which is the distinct comparative advantage of the civil law system when compared to the common law system.

            However, there is another difference, the difference in the degree of openness of the court system, between Vietnam and the United States, which is the consequence of the differences in the two  political systems. With the transparency provided by the  Freedom of Information Act (FOIA), people in the United States can look at the court records without being easily accused of violating state secret, as in Vietnam . But then, again, there is still some similarity between the two countries:  the freedom of information in the United States is not free, because one has to pay the cost for searching for the information, which has at times been put at an exorbitant level to seemingly deter the request for information--as in the case of searching for documents on the detention of people after 9/11: more than US $300,000.00 (Boston Globe February 1,2005)

 April 1, 2005

Further revised on July 15,2006

 

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 *Within the trial council of each court, consisting of the judge and the people's assessors, all decisions will be by simple majority, on each of the issues.  Thus, Vietnamese law gives to the people an important role in the administration of justice.  But there are female people's jurors who want to avoid their responsibility, on the ground that " I am pregnant" and next year, again "I am pregnant", according to the very humorous observation given in a witty manner by the Chief Judge of the Criminal Department of the Supreme People's Court, during the Training Workshop for Defense Counsels  in April 2004.

 

 

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