美國刑事訴訟法二

楊智傑

美國憲法增補條文第六條• In all criminal prosecutions, the accused shall enjoy

the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law …

• 在一切刑事訴訟中，被告應享受下列之權利：發生罪案之州或區域之公正陪審團予以迅速之公開審判，其區域當以法律先確定之；

• Sheppard v. Maxwell, 384 U.S. 333 (1966), was a United States Supreme Court case that examined the rights of freedom of the press （新聞自由） as outlined in the 1st Amendment when weighed against a defendant‘s right to a fair trial （受公平審判權） as required by the 6th Amendment.

• After suffering a trial court conviction （定罪） of second-degree murder （二級謀殺） for the bludgeoning （棍棒毆打的） death of his pregnant （懷孕的） wife, Sam Sheppard challenged the verdict （陪審團裁定） as the product of an unfair trial（不公正審判） .

• Sheppard, who maintained his innocence （無辜） of the crime, alleged that the trial judge failed to protect him from the massive, widespread, and prejudicial （有偏見的） publicity （公開宣揚） that attended （出席、伴隨） his prosecution （起訴） .

• In an 8-1 decision the Court found that Sheppard did not receive a fair trial. Noting that although freedom of expression （表達自由） should be given great latitude （份量） , the Court held that it must not be so broad as to divert the trial away from its primary purpose: adjudicating （審判） both criminal and civil matters in an objective （客觀） , calm （平靜） , and solemn （莊嚴） courtroom （法庭） setting.

• The Court concluded that the trial judge should have either postponed （延期） the proceedings （訴訟程序） or transferred（轉移） them to a different venue （審判地點） .

美國憲法增補條文第五條• … nor shall any person be subject for the same

offense to be twice put in jeopardy of life or limb…

• 同一罪案，不得令其受兩次生命或身體上之危險。

陪審團宣告無罪• Once acquitted （宣告無罪） , a defendant

may not be retried （重新審判） for the same offense （同一犯罪行為） : “A verdict（陪審團裁定） of acquittal （宣告無罪） , although not followed by any judgment （法院判決） , is a bar to a subsequent prosecution for the same offense.“ Acquittal by a jury is generally final and cannot be appealed （上訴） by the prosecution （檢方） .

法院自己判無罪• An acquittal in a trial by judge (bench trial) is also

generally not appealable by the prosecution （檢方） . A trial judge may normally enter an acquittal if he deems the evidence insufficient for conviction（不足以定罪） . If the judge makes this ruling before the jury reaches its verdict, the judge‘s determination is final. If, however, the judge overrules （推翻） a conviction by the jury, the prosecution may appeal to have the conviction reinstated （恢復） .

證據不足撤銷定罪• If a defendant appeals a conviction and is

successful in having it overturned （推翻） , they are subject to retrial （接受重審） .

• An exception arises if the verdict is overturned on the grounds of evidentiary insufficiency（證據不足） , rather than on the grounds of procedural faults （程序錯誤） .

不同罪名• Another exception arises in cases of conviction for

lesser offenses （較輕罪名） . If a defendant charged with murder in the first degree （一級謀殺） is convicted for murder in the second degree, and later the jury‘s conviction is overturned on procedural grounds, the defendant may be retried for second degree but not first degree murder; the jury, by convicting the defendant of second degree murder, is deemed to have implicitly （暗示） acquitted them of first degree murder.

同一犯罪• Defendants may not more than once be placed in

jeopardy for the “same offense” （同一犯罪行為） . Sometimes, however, the same conduct may violate different statutes.

• The defendant had first been convicted of operating an automobile without the owner‘s consent, and later of stealing （偷竊） the same automobile. The Supreme Court concluded that the same evidence was necessary to prove both offenses, and that in effect there was only one offense. Therefore, it overturned the second conviction.

審判無效 mistrial

• Mistrials （審判無效） are generally not covered by the double jeopardy clause. If a judge dismisses the case or concludes the trial without deciding the facts in the defendant's favor (for example, by dismissing the case on procedural grounds), the case is a mistrial and may normally be retried.

• Furthermore, if a jury cannot reach a verdict （陪審團無法達成裁定） , the judge may declare a mistrial and order a retrial. When the defendant moves for （提議） a mistrial, there is no bar to retrial, even if the prosecutor or judge caused the error that forms the basis of the motion.

雙重主權• The clause, it has been held, does not prevent

separate trials by different governments, and the state and federal governments are considered “separate sovereigns” （不同主權） . Therefore, one may be prosecuted for a crime in a state court, and prosecuted for the same crime in another state, a foreign country, or (most commonly) in a federal court.

球隊隊員強暴啦啦隊員• In March 2006 Crystal Gail Mangum, an

African American student at North Carolina Central University who worked as a stripper（脫衣舞女） ,dancer and escort （儀隊） , falsely accused three white Duke University students, members of the Duke Blue Devils men‘s lacrosse （曲棍球） team, of raping her at a party held at the house of two team's captains in Durham, North Carolina on March 13, 2006.

DNA 檢測• Shortly after the party, the prosecution ordered

46 of the 47 team members to provide DNA samples.

• On Monday, April 10, 2006, it was revealed that DNA testing had failed to connect any of the 46 tested members of the Duke University men's lacrosse team.

照片指認問題• During the photo identifications （照片指認） , Mangum

was told that she would be viewing Duke University lacrosse players who attended the party, and was asked if she remembered seeing them at the party and in what capacity.

• this was essentially a “multiple-choice test （複選題） in which there were no wrong answers",… "[t]he officer was telling the witness that all are suspects, and say, in effect, 'Pick three.'

• U.S. Department of Justice guidelines suggest to include at least five non-suspect filler photos for each suspect included

撤回起訴• On April 11, 2007, North Carolina Attorney

General Roy Cooper dropped （撤回） all charges and declared the three players innocent （無辜） . Cooper stated that the charged players – Reade Seligmann, Collin Finnerty, and David Evans – were victims of a “tragic rush to accuse.” （急於指控之悲劇）

檢察官被除名• That June, Nifong was disbarred for

“dishonesty （不誠實） , fraud （詐欺） , deceit （欺騙） and misrepresentation （不實陳述）” , making Nifong the first prosecutor in North Carolina history to lose his law license（證照） based on actions in a case. Nifong was found guilty of criminal contempt（藐視） and served one day in jail. Mangum never faced any charges for her false accusations as Cooper declined to prosecute her.

法律倫理• “Legal ethics” （法律倫理） in the United

States is generally understood to primarily apply to lawyers, while codes of professional responsibility （專門職業人員責任） also apply in a derivative sense (indirectly) to non-lawyers who work with lawyers, such as paralegals （律師助理、法務） or private investigators （私人調查員） .

美國律師公會職業行為規則• The American Bar Association （美國律師公

會） has promulgated （公布） the Model Rules of Professional Conduct （職業行為模範規則） which, while formally only a recommendation by a private body, have been influential in many jurisdictions.

各州州法自行規定律師執業守則• In the United States, the practice of law is

regulated by the governments of the individual states and territories （領域） .

• Each state or territory has a code of professional conduct dictating rules of ethics. These may be adopted by the respective state legislatures and/or judicial systems.

各州懲戒權• Every town in the United States has a regulatory

（管制性） body (usually called a state bar association) that polices （維持） lawyer conduct. When lawyers are licensed （被許可） to practice( 職業 ) in a state, those lawyers subject themselves to this authority. Overall responsibility often lies with the highest court in a state (such as state supreme court).

懲戒• Lawyers who fail to comply with （遵守）

local rules of ethics may be subjected to discipline （懲戒） ranging from private (non-public) reprimand （訓斥） to disbarment （取消資格） .