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4th Class Slides Attendance sheet Audio recording on Agenda –Review –Throckmorton –Defendants’ Rights Treason Act of 1696 Defense Counsel Self-Incrimination.

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Presentation on theme: "4th Class Slides Attendance sheet Audio recording on Agenda –Review –Throckmorton –Defendants’ Rights Treason Act of 1696 Defense Counsel Self-Incrimination."— Presentation transcript:

1 4th Class Slides Attendance sheet Audio recording on Agenda –Review –Throckmorton –Defendants’ Rights Treason Act of 1696 Defense Counsel Self-Incrimination –Punishment Transportation Imprisonment 48 hour take home exam, April Next class: Property Cases (print them out)

2 Review I:Rex v Hugh Illustrates important institutions Self-informing jury –Presentment –Trial. No evidence presented at trial –No necessary contradiction between presentment and acquittal Presenting jury supposed to present all who are suspected, even if they do not believe suspect is guilty Benefit of clergy –Hugh was denied benefit of clergy, even though ordinary claimed him, because jury said he was a bigamist (e.g., had married widow) Juror challenges –Hugh successfully challenged members of the jury for three reasons – membership in the presenting jury, lack of knightly status, and perhaps bias –“for cause” challenges, not “peremptory challenges” –Rare in Middle Ages Hugh exceptionally well informed. Most defendants did not know their rights Finish Smith, De Republica Anglorum

3 Throckmorton– Political Background I Queen Mary’s decision to marry Philip of Spain was very unpopular –Phillip was Hapsburg, son of Emperor Charles V, ruler of Spain, Netherlands, Germany –Fear of entanglement in continental war, taxes –Hatred of Catholics –Pure xenophobia –Fear that Spaniards would get good government jobs –Commons asked her to reconsider, but she refused Only possibility was rebellion –Rebellion would require deposition of Mary, substitution of Elizabeth –Multi-pronged rebellion planned Assaults on London from West and south (Kent) –But word got out, so rebellion had to be started prematurely Rebellion from West never really got under way –Wyatt marched army from Kent to London, Demanded custody of Tower Turned back when it looked like Londoners might fight –Very little bloodshed, but nearly toppled Mary, No standing army

4 Throckmorton– Political Background II Throckmorton –Son of knight, knighted himself in 1551 by Eward VI –Probably involved in planning rebellion –Did not actually take part in rebellion –But might have been involved in uprising in West, if rebellion had not started prematurely Rebellion resulted in many prosecutions –Mary would have liked to have gotten Elizabeth, But conspirators preserved her plausible deniability –A few dozen hangings, mostly of those actually fighting Including Wyatt –Many pardons

5 Regina v. Throckmorton (1554) 1) How do the procedural aspects of the trial differ from those described by Smith? Why? 2) How is the trial different from a modern criminal trial? 3) How is it similar? 4) How reliable do you think the report is? What evidence can you marshal to support your view?

6 Throckmorton – Dramatic Reading Larger parts –Throckmorton, defendant, accused of treason –Bromley, judge (Chief Justice of England) –Narrator –Stanford, serjeant –Attorney [General] Smaller parts –Hare, Judge (Master of Rolls) –Shrewsbery, Judge (Earl, member Privy Council) –Southwell, Judge (member of Privy Council) –Chomley, Judge –Sendall, clerk –Dyer, serjeant –Vaughan, Fitzwilliams. witnesses –Whetson. Jury foreman; Everyone one else is rest of jury Staging –Judges to one side of table; Clerk, to side; jury to other side; serjeants, Attorney, Throckmorton, facing judges; Vaughn & Fitzwilliams, approach when called

7 Political Trials of 16 th & 17 th Centuries Political turmoil of period led to politically tinged trials Different from ordinary trials –Lawyers for prosecution –High status defendants –Biased judges Some acquittals but also some notoriously unjust convictions Brings problems with criminal trial to attention of Parliament

8 Treason Act of 1696 Act restricted to those accused of treason Pretrial –copy of indictment 5 days in advance –list of jurors –right to consult freely w/ counsel Trial –right to present witnesses on oath –compulsory process for witnesses –counsel to make defense Rights extended by judges to other defendants in 18 th & 19 th c. Not in Act –Self-incrimination –regulation of evidence / exclusionary rules (19 th & 20 th centuries) –judicial independence (1701) –right of accused to testify under oath (19 th century

9 Right Against Self-Incrimination 3 phases in development I. Right not to accuse self (medieval) –Right developed in canon law (ecclesiastical law) as part of inquisitorial procedure –Distinction between confession (self-accusation) and inquisition (accusation & questioning by judge) Inquisition permissible only if “mala fama,” credible witnesses or suspicion of crime –Not relevant to ordinary criminal trial, because 14 th century statutes interpreting Magna Carta require indictment or appeal II. Right not to answer incriminating questions under oath (early modern) –Defendant’s statement to Justice of Peace not under oath –Defendant’s testimony at trial not under oath III. Right to remain silent (modern) –Possible only when defendants have lawyers

10 Mitigation of Death Penalty Pardon Jury Nullification –“pious perjury”. Valuing stolen goods at less than 1s, so not capital Benefit of Clergy –By early modern period, Benefit of Clergy meant no punishment Church no longer punished –17 th c. Many offenses made ineligible – murder, pickpocketing, theft from dwelling over 40s… –1690 extended to women –1706 reading test eliminated Everyone could claim benefit of clergy once –1718 transportation for those claiming benefit of clergy By 1720, half of convicts transported

11 Imprisonment Before late 18 th century, jails used for –Pretrial detention –Pre-execution detention –Insolvent debtors –Punishment of minor crime with short sentences –NOT punishment of felony Prisons –Start being used for punishment in late 18 th century in both England and US –England – American Revolution –US - decline in effectiveness of pillory and other shaming penalties –3 theories Penance Reform / rehabilitation Work –Prisons are very expensive Not feasible before modern period

12 Homicide rates in England, Monkkonen, Homicide: Explaining America's Exceptionalism, AHR Forum


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