INTRODCUTION TO LAW

Tsu-Sung Hsieh

Professor, Law Department, MCU

ROC Patent Attorney
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Criminal Substantive Law and
Criminal Procedural Law
 State Involvement
 State Powers

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The Basic Structure of the
Criminal Process
 Investigations
 Trial

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Trial

 Public Trial
 Equality of Arms

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Adversarial or Inquisitorial?

 Adversarial
 Inquisitorial
 Differences
 Supranational Law

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Basic Principles of Criminal
Justice Systems
 Tension Between Security and Liberty
 Presumption of Innocence
 Fair Trial and Proportionality
 Proportionality

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Presumption of Innocence

 Nature of the Presumption

 In dubio pro reo
 Pretrial Detention as an Exception

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Issues

 Miranda warning
 Search and seizure
 Fruit of the Poisonous Tree
 Hearsay Evidence

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Miranda Warning

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Miranda Warning

 The Miranda warning, which also can be

referred to as the Miranda rights, is a right
to silence warning given by police in the
United States to criminal suspects in police
custody (or in a custodial interrogation)
before they are interrogated to preserve the
admissibility of their statements against
them in criminal proceedings.
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Miranda Warning

 The Miranda warning is part of a preventive

criminal procedure rule that law
enforcement are required to administer to
protect an individual who is in custody and
subject to direct questioning or its functional
equivalent from a violation of his or her Fifth
Amendment right against compelled self-
incrimination.
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Miranda Warning

 In Miranda v. Arizona (1966), the Supreme

Court held that the admission of an elicited
incriminating statement by a suspect not
informed of these rights violates the Fifth
Amendment and the Sixth Amendment right
to counsel, through the incorporation of
these rights into state law.
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Miranda Warning

 Thus, if law enforcement officials decline

to offer a Miranda warning to an individual
in their custody, they may interrogate that
person and act upon the knowledge gained,
but may not use that person's statements as
evidence against him or her in a criminal
trial.
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Article 95, ROC Code of Criminal
Procedure
 Theaccused shall be informed of the following items
before an interrogation is conducted:
1. The alleged crimes committed, and all the criminal
charges. If it is deemed necessary to change the
criminal charges after the information is given, the
accused should be informed of such changes.
2.The right to remain silent, and that no statements
should be made against his/her own will.

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Article 95, ROC Code of Criminal
Procedure
3. The right to retain an attorney. If the accused is qualified to
request for legal aid, pursuant to the laws, due to his/her low-
income, or middle-to-low-income, aborigine status, or other
qualifications, he may request to retain an attorney.
4.The right to request an investigation on evidence favorable to
the defendant.
 When an accused, without a counsel present, indicates that
he/she has retained a defense attorney, the interrogation shall
be ceased immediately. However, this rule does not apply
where the accused consents to continue with the interrogation.

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Fourth Amendment of U.S. Constitution- Search and
Seizure

 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
upon probable cause, supported by Oath or
affirmation, and particularly describing the
place to be searched, and the persons or
things to be seized.
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Article 8, Constitution of the
ROC
 Personal freedom shall be guaranteed to the people.
Except in case of flagrante delicto as provided by law, no
person shall be arrested or detained otherwise than by a
judicial or a police organ in accordance with the
procedure prescribed by law. No person shall be tried or
punished otherwise than by a law court in accordance
with the procedure prescribed by law. Any arrest,
detention, trial, or punishment which is not in accordance
with the procedure prescribed by law may be resisted.

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Article 8, Constitution of the
ROC
 When a person is arrested or detained on suspicion of
having committed a crime, the organ making the arrest or
detention shall in writing inform the said person, and his
designated relative or friend, of the grounds for his arrest
or detention, and shall, within 24 hours, turn him over to
a competent court for trial. The said person, or any other
person, may petition the competent court that a writ be
served within 24 hours on the organ making the arrest for
the surrender of the said person for trial.

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Article 8, Constitution of the
ROC
 The court shall not reject the petition
mentioned in the preceding paragraph, nor
shall it order the organ concerned to make
an investigation and report first. The organ
concerned shall not refuse to execute, or
delay in executing, the writ of the court for
the surrender of the said person for trial.
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Article 8, Constitution of the
ROC
 When a person is unlawfully arrested or
detained by any organ, he or any other
person may petition the court for an
investigation. The court shall not reject such
a petition, and shall, within 24 hours,
investigate the action of the organ
concerned and deal with the matter in
accordance with law.
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Maryland v. King

 In 2003 a man concealing his face and

armed with a gun broke into a woman's
home in Salisbury, Maryland. He raped her.
The police were unable to identify or
apprehend the assailant based on any
detailed description or other evidence they
then had, but they did obtain from the
victim a sample of the perpetrator's DNA.
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Maryland v. King

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Maryland v. King
 In2009 Alonzo King was arrested in
Wicomico County, Maryland, and charged
with first- and second-degree assault for
menacing a group of people with a shotgun.
As part of a routine booking procedure for
serious offenses, his DNA sample was taken
by applying a cotton swab or filter paper--
known as a buccal swab--to the inside of his
cheeks. The DNA was found to match the
DNA taken from the Salisbury rape victim. 23

King was tried and convicted for the rape.

Maryland v. King

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Electronic privacy

 Whether a police officer’s search of a

suspect’s smartphone constitutes an
intrusion of privacy
Riley v. California

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Fruit of the Poisonous Tree

A doctrine that extends the exclusionary rule to

make evidence inadmissible in court if it was derived
from evidence that was illegally obtained. As the
metaphor suggests, if the evidential "tree" is tainted,
so is its "fruit." The doctrine was established in 1920
by the decision in Silverthorne Lumber Co. v. United
States, and the phrase "fruit of the poisonous tree"
was coined by Justice Frankfurter in his 1939 opinion
in Nardone v. United States.
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Fruit of the Poisonous Tree

 Like
the exclusionary rule itself, this doctrine is subject to three
important exceptions. The evidence will not be excluded:
if it was discovered from a source independent of the illegal
activity;
its discovery was inevitable;
or if there is attenuation between the illegal activity and the
discovery of the evidence.
 Further, if the primary evidence was illegally obtained, but
admissible under the good faith exception, its derivatives (or
"fruit") may also be admissible.

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Article 158-4, ROC Code of
Criminal Procedure
 The admissibility of the evidence, obtained
in violation of the procedure prescribed by
the law by an official in execution of
criminal procedure, shall be determined by
balancing the protection of human rights
and the preservation of public interests,
unless otherwise provided by law.
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Hearsay Evidence

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Hearsay Evidence

 Hearsay evidence, in a legal forum, is

testimony from an under-oath witness who is
reciting an out-of-court statement, the
content of which is being offered to prove
the truth of the matter asserted. In most
courts, hearsay evidence is inadmissible (the
"hearsay evidence rule") unless an exception
to the hearsay rule applies.
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Hearsay Evidence

 Forexample, to prove that Tom was in

town, a witness testifies, "Susan told me
that Tom was in town." Because the
witness's evidence relies on an out-of-court
statement that Susan made, if Susan is
unavailable for cross-examination, the
answer is hearsay.
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Article 159, ROC Code of
Criminal Procedure
 Unlessotherwise provided by law, oral or
written statements made out of trial by a
person other than the accused, shall not be
admitted as evidence.

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Criminal law

 U.S.
Government Files Charges in Yahoo
Hacking
https://www.bloomberg.com/news/audio/2
017-03-16/u-s-government-files-charges-in-y
ahoo-hacking-audio

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Criminal law

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