Law and Justice

Posts Tagged ‘Rights’

Since China’s accession to the WTO, as China’s integration into the world economy is picking up speed, intellectual property rights work are also faced an enormous challenge. Although in recent years China has always been accusations of inadequate protection of intellectual property, but the actual situation is not so bad as people thought. Chinese Patent Office published in 2009 the number of patents more than 580,000, an increase of 41%, second only to Japan and the U.S., one of the world’s busiest offices.

    China’s solar industry, the order has been chaotic, follow the trend of the phenomenon becomes stronger, a lot of shoddy products in circulation in the market has not only damaged the interests of consumers, but also the development and upgrading of the entire industry caused serious obstacles. Intellectual property protection is to regulate the order of solar energy industry, an important way.

    Norit force the end of 2008 have been identified as Municipal Intellectual Property after the pilot enterprises, enterprise specially formulated for the next few years, intellectual property goals, and the company’s intellectual property management to improve and standardize the work carried out on the “Patent Work Management Measures” “secrecy”, “incentive policies for scientific and technological projects,” a series of intellectual property management system was revised for the conduct of intellectual property foundation.

    R & D is the life of intellectual property rights

    To rely on international technical standards and excellent R & D team, force Norit in intellectual property protection has made remarkable achievements. In 2009, Li Norit declaration and authorized a total of more than 30 patents covering inventions, utility models, appearance and other areas, including systems technology, structure, process, modeling and other areas.

    In recent years, Li Norit in the leading products and key technologies (such as mandatory split system, solar collector, solar power stations, natural cycle split system, large-scale solar water heating and heating engineering, etc.) has increased efforts to declare , and most have been mandated. At present, the power to declare the patent of invention — Norit medium temperature solar collectors, is home to the most advanced medium temperature product technology, has been completed prototype production and testing, technical level reached the international advanced level.

    Technology into effective is the last word

    Norit a force upon application of patented technologies, the enterprise product quality and stability, superior performance, technology leadership, sales in the country far ahead, and to achieve high volume of exports. Li Norit technology in the domestic industry has been in a leading position, get the same industry and the customer widespread praise, and bear the Eleventh Five-year project on “Solar Energy in the construction of large-scale application of key technologies” and a series of national, provincial and municipal science and technology plan for China’s solar thermal industry has made great contribution.

    Polyurethane thermal insulation material as a solar energy in recent years, production is increasing. The general production of solar water heater using polyurethane production methods, raw material storage primitive, slow and prone to failure; foaming agent, such as CFC-11 and so on for the fluorine-containing blowing agents, produced of polyurethane has damaging effects on the atmospheric ozone layer. Norit recently invented a solar power thermal insulation material production methods, not only simple, raw materials without failure, no leakage, thermal insulation and flame-retardant effect of product and good, but does not destroy atmospheric ozone layer, greenhouse effect low. R & D investment of the project 2,000 million, post-marketing generated more than 1 million in proceeds from the current force Norit has applied for patent protection.

    Yao Ding intellectual property protection does not relax

    Attention to intellectual property protection and patent applications, strengthening intellectual property rights to information, is the ability of enterprises to improve their effective means of scientific and technological innovation. The timely collection of patent information, patent information database set up an enterprise; in new product development, research project, patent applications, licensing trade, patents, technology investments and patent litigation activities, regular retrieval and effective analysis and use of proprietary technical information, and make Forward-looking projections … … force for the future protection of intellectual property Norit no slack.

    Turning to the 2010 target of intellectual property protection, force Norit relevant responsible person said, would like other forms of value to enhance the effective protection of intellectual property such as copyright, copyright, etc.; make full use of the patent analysis system, expand the scope of application, for the company product development and technology strategy services; continue to improve the intellectual property system, and gradually standardize intellectual property management, at the same time China’s solar thermal industry, proprietary strategic research.

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“Jump on Your Intellectual Property Rights”

If you are a startup business looking for financing, you should already have (1) acquired your IP rights (patents, trademarks, and copyrights) and (2) cleared your business of any IP infringement. Investors and competitors respect the value of patent and trademarks and applications for them. Investors should not invest in a startup, unless they are assured that its product or service is not infringing another’s IP rights.

There is a saying in the law, “don’t sleep on your rights.” If you do not affirmatively acquire what could become your patent and trademark rights, you will lose the opportunity to do so. To often today a startup is shut down because it is infringing another’s patent or trademark rights. That shut down could have been avoided with appropriate foresight. The infringed patent or trademark is one that the startup could have obtained for itself by applying for those IP rights, — if it had acted early enough. Alternatively, an early due diligence search could have identified another’s IP rights that covered the proposed product or service, thereby providing time for a design around and negotiations for a license to the problem IP rights.

Patents provide a limited monopoly on your company’s new product or process. Monopoly translates into high profit margins due to a lack of competition. Patents can be obtained on almost any product or process that is useful, novel, and non-obvious. Under prevailing case law, usefulness extends to any method of calculating a number that has real world utility, including business methods, and the novelty and non-obviousness requirements are not as high a standard as many people believe.

Trademarks (and service marks) indicate the source or origin of a product or service. Source or origin means that a consumer can identify your product or service in the marketplace, and thereby avoid using another’s similar product or service.

United States patents and trademarks are obtained by filing an application for them in the United States Patent and Trademark Office (USPTO). The USPTO then examines the application for compliance with all statutory requirements, and eventually issues complying applications and rejects noncomplying applications. Obtaining these IP rights is expensive, primarily due to the amount of high hourly rate attorney time required to prepare an application and guide it through the USPTO. For patents, part of that cost can be deferred by initially filing a relatively simple provisional patent application the filing date of which is prima facie proof of the date of invention. A provisional patent application protects for one year the right to pursue patent protection on the novel aspects of a product or process at a very low cost, and it is accorded respect by inventors and competitors. However, to get a patent, a provisional application must be followed within one year of its filing, by filing a more formal US application and any foreign applications to obtain the benefit of the filing date of the provisional application.

Substantial information on patents and trademarks is provided at the USPTO’s website at http://www.uspto.gov.

Copyright Richard A. Neifeld, President, Neifeld IP Law, PC

If you have any other questions or need further information please feel free to contact us via email at www.Neifeld.com

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The Attitude of Ghanaian Courts towards the Enforcement of Socio-economic Rights of the Citizenry: A Critical Review.

Introduction

Ghana has a chequered past; one interspersed with both civilian and military governments since its independence from Great Britain in 1957. The concept of human rights enshrinement in the Constitution was not foreign to the Ghanaian setup. Prior to the adoption of the 1992 Republican Constitution human rights were  provided in the 1969 and 1979 Constitutions of Ghana. It was provided to a limited extent in Chapter Six of the 1979 constitution of Ghana. During the deliberations leading to the adoption of the 1992 Constitution, the Committee of Experts noted that even though there has been compartmentalization of human rights into civil and political right; and economic, social and cultural rights, they felt that whatever the material scope of the rights, all persons were entitled to them. (Paragraph 137 of  Report of Committee of Experts on Proposals for Draft Constitution of Ghana).

 The 1992 Constitution of Ghana has its Bill of Rights being Chapter Five of the Constitution. A reading of the constitution evinces a number of civil and political rights as well as socio- economic rights in the Bill of Rights. The socio-economic rights include: protection from deprivation of property (Article 20), property rights of spouses (Article 22), right to work under safe, satisfactory and healthy conditions and right to form trade unions (Article 24), right to educational opportunities and facilities (Article 25), women’s rights (Article 27),children’s rights (Article 28), rights of the disabled (Article 29). Also, a number of these socio-economic rights such as the right to a healthy environment (Art. 36(9)); the right to work; the right to good health care and the right to education are provided for under Chapter Six of the 1992 Constitution. Yet still a number of socio-economic rights like the right to social security and adequate standards of living are not provided for at all under the present constitution.

The Directive Principles of State Policy (DPSP) are to serve as guidelines in the application and interpretation of the constitution (Article 34(1) of the 1992 Constitution of Ghana).  Due to this, it has been suggested that the directive principles are not justiciable. However, a provision in the constitution stipulates that the fundamental human rights mentioned in Chapter Five are not to be regarded as excluding others not specifically mentioned (Article 33(5)). In other words, Chapter Five does not exhaust the socio-economic rights.

The question then is, whether the socio-economic rights which are not mentioned in chapter Five are rights which can be enforced by the courts? The High court has been charged with the duty of enforcement of the fundamental rights with right of appeal to the Court of Appeal and then, the Supreme Court. A number of cases involving socio-economic rights under chapter Six of the constitution have come before the courts for interpretation.

1.     The Legal Arguments Emanating from the Courts

The Ghanaian decisions to be examined in this respect are: the New Patriotic Party (NPP) v Attorney-General (the 31st December case, 1993-94, 2 GLR 35- 192) ; New Patriotic Party (NPP) v Attorney-General (CIBA case 1996-97, SCGLR 729-803) and Ghana Lotto Operators Association & 6 Ors. v National Lottery Authority (Lotto case, 23rd July 2008, unreported)).

In the 31st December case, an action was brought by the plaintiff, a registered political party in the supreme court for a declaration that the celebration of the 31st December as a statutory public holiday was inconsistent with articles 3, 35(1) and 41(b) of the Constitution. Amongst the issues for determination was whether the directive principles of state policy were justiciable. This was because the declaration sought was in respect of two provisions under chapter Six of the constitution.

Adade JSC, in giving the lead judgment of the court stated that “The Directive Principles of State Policy contained in the 1992 Constitution,  Chapter Six were justiciable because the Constitution as a whole was a justiciable document and accordingly, if any part was non-justiciable, the Constitution itself had to indicate it”. But no provision in the constitution had indicated that chapter Six was not justiciable. Yet, the evidence to establish the non-justiciability of the principles had to be internal to the constitution otherwise it would be in conflict with it and thus be void and inadmissible. He stated further that “although in some quarters it had been said that the use of the phrase ‘shall guide’ in article 34(1) of the 1992 Constitution implied that the directive principles were not meant to be justiciable, the argument was weak and unimpressive and that though, all laws were for guidance, they had not on that account, be said to be non-justiciable”. 

It must be said that though this was not a unanimous decision of the house either some members of the house inferring the non- justiciability of the directive principles from the Committee of Experts and Consultative Assembly reports, it must be said that the deliberations leading up to its adoption in the 1979 Constitution of Ghana does not support such a position nor does the express language in Article 34(1) suggest same. The majority decision is the one supported as such a decision can be said to be the natural deduction and conclusion to be inferred from the preamble and Article 1 of the constitution that the will of the people shall be supreme and that the fundamental human rights and freedoms shall be protected and preserved.

The CIBA case was concerned with a declaration sought under article 2(1) of the 1992 constitution  by the NPP to the effect that the Council of Indigenous Business Association (CIBA) law was inconsistent and thereby contravened Articles 21 (1) (e), 35(1) and 37(2)(a) and (3) of the 1992 constitution of Ghana. The defendant raised a preliminary objection to the suit on the ground that the articles sought to be relied on by the plaintiff fell under chapter Six of the 1992 Constitution titled Directive Principles of State Policy (DPSP) and were thus not justiciable. In ruling on the preliminary objection to the action, the majority of the house held that the Directive Principles of State Policy had the effect of providing goals for legislative programmes and a guide for judicial interpretation but were not of and by themselves legally enforceable by any court.

According to Bamford Addo JSC, as a mouth piece of the unanimous majority, the Directive Principles of State Policy were of and in themselves, not justiciable. She made reference to Par. 95-97 of the Report of the Committee of Experts on Proposals for a Draft Constitution of Ghana especially par.96 which stated that the principles should not of and by themselves be legally enforceable by any court. She however qualified this statement to the effect that they could be justiciable when read in conjunction with other enforceable provisions of the constitution by reason of the fact that the courts are mandated to apply them, they become justiciable. Also, that any provision in chapter Six that could be interpreted to mean a guaranteed fundamental right also became justiciable. She concluded by stating that the justiciability of any provision under Chapter Six of the constitution would rest on the peculiar facts of the case presented before the court. The position stated by Bamford Addo remained the position as regards the directive principles of state policy until a new position was stated by the Supreme Court of Ghana in 2008 in Lotto case.

The Supreme Court decision in the Lotto case can be said to be the most recent and hence the current position of the law on the Directive Principles of State Policy. In this case, a reference was made to the Supreme Court of Ghana for a determination as to whether The National Lotto Act, 2006, Act 722 violated Articles 33(5), 35(1) and 36(2) of the 1992 constitution of Ghana.

 The background to the case concerned the issue of a writ by some private lotto operators in Ghana by virtue of newspaper announcements by the defendant established under the National Lotto Act, 2006 to the effect that no person other than the National Lotto Authority  from operating any form of lottery in Ghana. The plaintiffs who were aggrieved sought a declaration inter alia that, Act 722 violated the afore-mentioned provisions.

Date- Bah JSC, giving the judgment of the court made some very interesting pronouncements on the justiciability of the Directive Principles of State Policy. It is this aspect of the case that shall be subject to our perusal. After establishing the fact that the plaintiffs had failed to make a case concerning the first two articles, he stated that the most relevant issue to be determined was whether the Act violated Article 36(2) of the constitution. He examined this article by stating that an issue was justiciable if it was capable of being settled by a court. For him all the provisions in the constitution were justiciable because it contained the most important rule on political governance. 

In so stating, he reiterated the view earlier expressed by Adade JSC in the 31st December Case that all the provisions in the constitution were justiciable unless the constitution categorically stated otherwise. He distinguished the restraint on Indian judges to adjudicate on the Directive principles by reference Article 37 of the Indian Constitution which unequivocally stated that the Provisions in Part IV therein was unenforceable by any court as against a non- express exclusion in the Ghanaian constitution. After examining the Committee of Experts report on the adoption of the constitution of Ghana, he came to the conclusion that there was no language in the constitution suggestive that the Directive principles are not of and by themselves legally enforceable by any court.  He stated that even if the original intention of the Committee may have being to make the principles unenforceable that did not appear in the constitution as such.

He continued that as the problems of the nation changed, the interpretations of the constitutions by the judiciary also had to change to reflect modern practices. A statement he made which is at the heart of this article bears repeating. He stated that the rights set out in chapter Six are predominantly the economic, social and cultural rights which by international and domestic practice are becoming just as fundamental as the rights in chapter Five.

The enforceability of these economic, social and cultural rights was a legitimate purpose for the court to seek to achieve through appropriate purposive interpretation and so any interpretation to Article 34 of the constitution should take into account the purpose of expanding the range of enforceable human rights in Ghana. He emphasized the need for the elaboration and enforcement of economic, social and cultural rights in light of the history, culture and legal system as a need of the present times and for the test of Article 34 if it could help meet this need, then the court should fulfil it.

He added that a presumption of justiciability in respect of Chapter Six of the constitution would strengthen the legal status of socio- economic and cultural rights in the Ghanaian jurisdiction and that any provision that does not lend itself to enforcement by its nature would rebut such a presumption as this would go a long way to deepen our democracy. Any ambiguity in article 34 should be resolved in favour of enforceability so as to strengthen the enforcement of fundamental human rights as a core value of the current legal and constitutional system.

Date-Bah however cautioned that the enforceability of these economic, social and cultural rights did not mean that the implementation in respect of it would be the same as the civil and political rights embodied in Chapter Five. The court thus needed to be flexible and imaginative in determining how provisions under the Chapter Six would be enforced.

Aside the courts, a body clothed with competence to hear complaints on the fundamental human rights is the Commission on Human Rights and Administrative Justice (CHRAJ) hereinafter known as CHRAJ. CHRAJ which is an elaboration of the Ombudsman in the 1979 constitution has now per Article 218(a) and section 7(1) (a) of the CHRAJ Act the mandate to investigate complaints of violations of fundamental rights and freedoms. In line with this mandate, CHRAJ has given a number of decisions on the fundamental human rights specifically the socio-economic rights. However it has not given a decision in respect of the justiciability of socio-economic rights.

2.     Conclusion

Having recognized that the CIBA case was a departure from the 31st December case and that there was a conflict between two previous decisions, of the supreme court and thus the court was free to choose between the two or formulate a different rule, the court still went ahead to choose a presumption of justiciability of chapter Six of the 1992 constitution. This is probably due to the fact that the court recognized the increasing trend in various jurisdictions to this position as a need of our time and hence important that it does likewise.

After a reading of the various cases, it can be boldly stated that the Ghanaian position on the Directive Principles and thus, the socio- economic rights has now been established by the Lotto case and has been resolved in favour of the justiciability of the socio- economic rights. Ghana has therefore joined hands with other jurisdictions to safeguard the protection of the socio- economic rights, thus changing the attitude of the courts in that direction. 

As human rights violations continue to occur around the globe, law schools are establishing human rights clinics to meet the ever increasing demand for human rights lawyers. These United States based institutions are not only working to strengthen their own communities, but also to train students and professors, organizations and professionals, who are working to strengthen these rights outside of the United States.

Even though the Universal Declaration of Human Rights forms the basis of International Human Rights Law, the Declaration itself is not legally binding. However, civil rights clinics are training lawyers to strengthen the enforcement of such rights and increase adherence to the agreements that several nation-states have signed.

While international law is a relatively young field, many distinguished law schools have created outstanding programs for aspiring civil rights lawyers and professors. At Columbia Law School’s Human Rights Clinic, students and professors focus on the cross cultural implications of international law, and encourage students to immerse themselves in today’s human and civil rights battles.

The clinic focuses on providing students with a number of different skills that are necessary in the field. For example, the clinic instructs students on how to conduct investigative research and interviews that are necessary for human rights cases. Unlike many other fields of law, these on the ground skills are necessary for learning how to identify human and civil rights abuses in a number of different settings and how to empower local organizations and lawyers to bring violators to trial.  

Similarly in Harvard Law School’s International Justice Clinic, students learn about these rights through current events. While the clinic is based in Cambridge, students regularly travel internationally to document human and civil rights abuses and promote respect for international law.

Harvard’s program also provides students with connections to dozens of organizations throughout the world that are seeking to bring human and civil rights cases to trial. The clinic provides funding for research during summer and winter breaks and free support to dozens of countries where human rights violations occur on a mass scale.

At Yale Law School, the Lowenstein Human Rights Project enables students to pursue human and civil rights on an extracurricular basis. In this clinic, small groups of students work together with public interest and human rights NGOs, conducting research, designing advocacy activities, and organizing events that bring further attention to human and civil rights violations in the United States and abroad.

Stanford Law School’s International Human Rights Clinic also works to integrate classroom learning with experience in the field. In recent years, Stanford has mandated that students’ first course is about the clash between International Human and Civil Rights Law and the United States actions in Guantanamo. This course is coupled with subsequent international travel where students help universities abroad establish human and civil rights clinics of their own. Last fall, Stanford’s Human Rights Clinic also started providing free coordination of international doctors and psychologists in order to train local medical professionals to deal with rights violations in their own countries.  

While several distinguished universities have established human and civil rights clinics, one of the most promising clinics was launched just last year, in August of 2008. The Sanela Diana Jenkins International Justice Clinic at UCLA is a unique interdisciplinary program that seeks to be focused and dynamic.

Established with a generous donation of $4 million from Diana Jenkins, a refugee of the Bosnian war in Sarajevo, the clinic helps students and professors create and implement new advocacy strategies. By focusing on advocacy, the Jenkins International Justice Clinic hopes to teach lawyers how to draw national and international attention to human rights violations, creating the necessary pressure that inspires nation-states to enforce human and civil rights law.

In honor of Diana Jenkins and the schools commencement, students and faculty dedicated their first academic year to the war crimes committed in Bosnia and the International Criminal Tribunal for the former Yugoslavia.

As these human rights clinics continue to grow, their efforts will surely be seen in the coming years. Already their work has deeply influenced individuals and organizations in the United States and abroad and strengthened the implementation of international law. In the fight against human rights violations, these clinics are necessary for training the future’s leaders and strengthening international law around the world.

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One of the most important things in intellectual property is to understand the value of an idea or an invention. Let’s take one of the most prominent ideas in the history of mankind – the personal computer. It is well known that the idea of personal computer was rejected at first. IBM was dominating the market and they considered the PC to be a failure. Xerox instead developed stuff like Operation System and even the first mouse in one of its labs. But the executives were too focused on copying machines and also rejected the project. All the inventions fell into the hands of Steve Jobs and he released the first Mac. The market basically exploded and today we have a PC in almost every home. Xerox hasn’t received ad dollar, because the patents were not made at the required moment.

Before moving to ways of protecting intellectual property at first let us define the term. Intellectual property is unique items (or ideas) created by you, that provide an economic benefit. It can include inventions, designs, original works of authorship and even trade secrets. To choose the right protection you need to define the property you have. There are three general ways to protect it.

The first way is Patenting. It is the best way to protect your invention. There are two difficult moments in patenting. First one is to obtain the patent. The best solution will be to find a lawyer experienced in patent law, he will help you determine that your invention is unique and it has no problems with the already patented stuff. There are actually many not obvious things like a patent for a certain type of devices for example. Receiving a patent will allow you guarantee that no third parties will manufacture or sell your product. The second problem is patenting an invention made in a company. But this must be solved in the work arrangement, so basically a good consultation for the work arrangement can provide you with more rights to your inventions.

Second are Copyrights. It can be used for protecting original works of authorship like literary, musical, and dramatic works, as well as photographs, audio and visual recordings, software, as well as some other intellectual works. Copyright protection begins as soon as the work is fixed in a tangible medium. After that the author can protect his work with a copyright symbol. It will serve as a warning label for everyone who wants to steal the property and will help in seeking
court enforcement of your copyright

The third thing is Trademark, it is used to protect the name of your product by preventing others to sell or manufacture a product under the same name. In this type of protection an attorney with experience in intellectual property will help you. It is well known that a good name for a product is important, so protection of your name must begin even before the name is invented. Before developing a brand name you need to check if this name isn’t already registered, or sounds confusingly similar with a registered name (this is also protected by trademarks). After that you can develop your brand name and register it.

Overview

Every saint has a past and every sinner a future. Criminal law takes cognizance of this universal truth and every accused is provided with ample rights while deciding whether he/she has committed any offence. Prosecution guidelines provide for certain procedural niceties to be extended to a person accused of crime. After all, the law intends to punish the crime, not the criminal. Adversarial system views crime as a wrongdoing against the state and not against a particular person. The interests of the state are represented by the prosecuting attorney. As such, law views the offender sympathetically and treats him/her as innocent until proved guilty and passes the burden of proving the case to the prosecution. The defendant has a right to be presumed innocent unless and until the State has proven each and every element of the crime beyond a reasonable doubt. Thus, for instance, if a culpable mental state is required to prove a crime, the prosecution must prove that it existed at the time of commission of the offence.

Constitutional Rights

The United States Constitution guarantees a wide array of rights to the criminal defendant from the time of arrest through the trial proceedings. These include: the right to be free from any unreasonable search and seizure, to remain silent, to be tried before a judge or a jury, to summon witnesses and compel their attendance to testify on behalf of the defendant, and to confront and cross-examine any witness the State may call. The defendant in a criminal case has a right to a speedy trial and to be represented by an attorney and is entitled to have an attorney appointed by the court, if the defendant is unable to afford one. The defendant also has a right to consult an attorney or family members before pleading guilty or not guilty before the court.

The criminal proceedings begin by the initiation of a complaint by the purportedly injured person, the complainant. The police investigate about the complaint. A formal charging document called a complaint or an indictment brought by a grand jury is filed with a court in the proper jurisdiction.

The Right to Speedy Trial

The Sixth Amendment of the Constitution guarantees a criminal defendant the right to a speedy and public trial, in both state and federal courts, which means that the proceedings are to be completed within a reasonable time after the person being arrested. The defendant has a right to be informed of the nature and cause of the accusation. The Sixth Amendment also guarantees a criminal defendant the right to be tried before an “impartial jury,” which will consider the evidence against the defendant and decide whether to find him/her guilty. In almost all states, the concurrence of twelve jurors is necessary in order to find a defendant “guilty or not guilty.”

Right to be Free from Unreasonable Search and Seizure

Fourth Amendment to the U.S. Constitution guarantees the defendant the right to be free from any unreasonable search and seizure. The quintessence of the Amendment is that “every man’s house is his castle” and the rights to be secured in their persons, houses, papers, and other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause.”

Privilege against Self-incrimination

The defendant is entitled to a right under the Fifth Amendment to the U.S. Constitution to remain silent during the trial. In other words, the accused person can refuse to answer any questions or make any statements, if such answers or statements establish that the person committed a crime or is in any way connected to some criminal activity. As already mentioned above, the burden of proof of a crime is on the prosecution. However, no one including the prosecutor, the judge, and even the defendant’s lawyer can force the defendant to be a witness against himself/ herself if the person declines to do so. Furthermore, when a defendant exercises his or her right not to testify, the jury is not permitted to take such denial into consideration when deciding the question of liability. Thus, this is a prominent privilege to the criminal defendant. Nevertheless, the defendant cannot selectively answer questions that go against him/her. Once a defendant decides to testify at trial, he/she cannot ordinarily choose to answer some questions but not others. It is to be noted that the Fifth Amendment privilege does not apply when a defendant is fingerprinted, or made to provide a DNA sample in connection with a criminal accusation. Like a criminal defendant, witnesses are also entitled to refuse to answer certain questions by asserting their Fifth Amendment rights. However, this right is not extensive as that of the criminal defendants.

Conclusion

A criminal defendant is presumed to be innocent and accorded all humane considerations during the trial. Justice is not a one sided notion favoring the victim, but it looks at the accused person from a reformative angle. The punishments accorded to the criminal defendant are meant to reform the person and not a retributive measure. As such, in the pursuit of justice, law takes in to consideration, the rights of the accused.

Mr. Smith is a renowned Florida criminal defense attorney . The knowledge, experience, and killer instincts J. Layne Smith has honed over years of civil and administrative trials in insurance related cases makes him force when defending white collar crimes. Simply put, prosecutors do not have the background and depth of understanding Mr. Smith has, and he uses that advantage to the fullest extent, for your benefit.

Overview

Every saint has a past and every sinner a future.  Criminal law takes cognizance of this universal truth and every accused is provided with ample rights while deciding whether he/she has committed any offence.  Prosecution guidelines provide for certain procedural niceties to be extended to a person accused of crime.  After all, the law intends to punish the crime, not the criminal.  Adversarial system views crime as a wrongdoing against the state and not against a particular person.  The interests of the state are represented by the prosecuting attorney.  As such, law views the offender sympathetically and treats him/her as innocent until proved guilty and passes the burden of proving the case to the prosecution.  The defendant has a right to be presumed innocent unless and until the State has proven each and every element of the crime beyond a reasonable doubt.  Thus, for instance, if a culpable mental state is required to prove a crime, the prosecution must prove that it existed at the time of commission of the offence.

Constitutional Rights

The United States Constitution guarantees a wide array of rights to the criminal defendant from the time of arrest through the trial proceedings.  These include:  the right to be free from any unreasonable search and seizure, to remain silent, to be tried before a judge or a jury, to summon witnesses and compel their attendance to testify on behalf of the defendant, and to confront and cross-examine any witness the State may call.  The defendant in a criminal case has a right to a speedy trial and to be represented by an attorney and is entitled to have an attorney appointed by the court, if the defendant is unable to afford one.  The defendant also has a right to consult an attorney or family members before pleading guilty or not guilty before the court.

The criminal proceedings begin by the initiation of a complaint by the purportedly injured person, the complainant.  The police investigate about the complaint.  A formal charging document called a complaint or an indictment brought by a grand jury is filed with a court in the proper jurisdiction.

The Right to Speedy Trial

The Sixth Amendment of the Constitution guarantees a criminal defendant the right to a speedy and public trial, in both state and federal courts, which means that the proceedings are to be completed within a reasonable time after the person being arrested.  The defendant has a right to be informed of the nature and cause of the accusation.  The Sixth Amendment also guarantees a criminal defendant the right to be tried before an “impartial jury,” which will consider the evidence against the defendant and decide whether to find him/her guilty.  In almost all states, the concurrence of twelve jurors is necessary in order to find a defendant “guilty or not guilty.”

Right to be Free from Unreasonable Search and Seizure

Fourth Amendment to the U.S. Constitution guarantees the defendant the right to be free from any unreasonable search and seizure.  The quintessence of the Amendment is that “every man’s house is his castle” and the rights to be secured in their persons, houses, papers, and other property, from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause.”

Privilege against Self-incrimination

The defendant is entitled to a right under the Fifth Amendment to the U.S. Constitution to remain silent during the trial.  In other words, the accused person can refuse to answer any questions or make any statements, if such answers or statements establish that the person committed a crime or is in any way connected to some criminal activity.  As already mentioned above, the burden of proof of a crime is on the prosecution.  However, no one including the prosecutor, the judge, and even the defendant’s lawyer can force the defendant to be a witness against himself/ herself if the person declines to do so.  Furthermore, when a defendant exercises his or her right not to testify, the jury is not permitted to take such denial into consideration when deciding the question of liability.  Thus, this is a prominent privilege to the criminal defendant.  Nevertheless, the defendant cannot selectively answer questions that go against him/her. Once a defendant decides to testify at trial, he/she cannot ordinarily choose to answer some questions but not others.  It is to be noted that the Fifth Amendment privilege does not apply when a defendant is fingerprinted, or made to provide a DNA sample in connection with a criminal accusation.  Like a criminal defendant, witnesses are also entitled to refuse to answer certain questions by asserting their Fifth Amendment rights. However, this right is not extensive as that of the criminal defendants.

Conclusion

A criminal defendant is presumed to be innocent and accorded all humane considerations during the trial.  Justice is not a one sided notion favoring the victim, but it looks at the accused person from a reformative angle.  The punishments accorded to the criminal defendant are meant to reform the person and not a retributive measure.  As such, in the pursuit of justice, law takes in to consideration, the rights of the accused.

“The Criminal Law Handbook: Know your rights, survive the system of Attorneys Paul Bergman & Sara J. Berman is an impressive tome of 678 pages of information on criminal law. The book aims to help you understand the rules confused and procedures relating to criminal offenses and to show how the system works, because the police, lawyers and judges do what they do and more importantly what can be done to limit the damage. I think it achieves that goal very well. Most part of the book is written in a question-and-answer understandable to explain the criminal justice system, both within and outside the court. They range from the first police interview through trial in jail and probation.

Nolo Remember that focuses on making the law accessible to all, and books published by Nolo doing an outstanding job of doing just that. Therefore, this book is not a manual of criminal law as would be in law school, but a general guide for the non-lawyer or layman. For a guide like this is very good and includes a range of information.

The twenty-seven chapters consist of:

Chapter one: to speak with police. Chapter provides information on police interrogation of persons who have not taken into custody and interrogation of detainees.

Chapter two: search and seizure. Some of the topics covered here are search warrants, the doctrine of public view, stop and search, searches of cars, and research.

Chapter Three: Arrest: When it does, what it means. This chapter discusses the general principles of detention, arrest, arrests without warrants, the use of force during arrests and detentions of citizens.

Chapter Four: the identification of eyewitnesses: Psychology and procedures. Topics include procedures for identification of eyewitnesses, the psychology of eyewitness identification, alignments, showups, photo ID, and the proposals to remove the identification.

Chapter Five: Reservations and deposit: and out of prison. The booking process, the organization of bail and be released on his own are covered here.

Chapter Six: The suspect asked. This chapter focuses on crime and criminal procedures and criminal responsibility, a grand jury, and diversion.

Chapter Seven: Criminal Defense Lawyers. You need a lawyer, public defenders, private defense lawyers, and self-representation are discussed in this chapter.

Chapter Eight: Understanding the relationship between lawyer and client in a criminal case. Topics include confidentiality, client-centered decision making, communication between lawyer and client, among others.

Chapter Nine: A Walk Through the Criminal Court. The court, in classroom, players lounge, court and explain the behavior.

Hearings in the tenth chapter. Timing and self-representation at the hearings look here.

Chapter XI: Developing the strategy of defense. Just what the title of the chapter, the fundamentals of defense strategy.

Chapter XII: Crimespeak: understanding the language of criminal law. Basic principles on things such as murder and manslaughter, rape, robbery, theft, hate crimes, the Patriot Act and more.

Common defenses Chapter XIII: Defensespeak: criminal charges. Topics such as partial defense, self-defense, alibi, and madness are covered here, among others.

Chapter XIV: Discovery: the exchange of information with the prosecution. Discovery is an important part of any legal or civil case and this chapter provides the basis for criminal matters.

Chapter Fifteen: investigate the facts. Interviews and testimonies are a few things here.

Chapter XVI: The preliminary hearing. What are your rights, and strategies of both sides are presented here.

Chapter Seventeen: Test of fundamental rights of defense. Topics covered include: due process, the burden of proof, the right to remain silent, the right to address the problem of witnesses, Right to Jury Trial, Right to a lawyer, and others.

Chapter XVIII: the ground rules evidence in criminal proceedings. There are procedures to follow in the presentation of evidence and this chapter provides guidelines for doing things right.

Chapter XIX: proposals and their role in criminal proceedings. Learn what they are and what they are in this chapter.

Chapter XX: offers reason: The majority of criminal cases must stand. Fundamentals of plea deals, the pros and cons, the process and the strategy of negotiating plea deals are discussed in this chapter.

Chapter Twenty-One: the process of experimentation. Good chapters on various aspects of a process of electing a judge or jury deliberations and verdict.

Chapter Twenty: Sentencing: How to punish the guilty by the court. The fundamentals of the procedures and sentencing options and a bit ‘on the death penalty.

Chapter Twenty. Appeals: An appeal by a High Court. Losing the process does not necessarily mean it’s over. This chapter includes resources and cars.

Chapter Twenty: How the Criminal Justice System Works: A Walk Through Two Drunk Driving cases. The sample used for drunk driving.

Chapter Twenty: Juvenile Courts and procedures. Separate chapter explains how things work in juvenile courts.

Chapter Twenty: Regulation of prisoners. The information on prisons and prisoners ‘rights’, remedies, words and forgiveness.

Chapter Twenty. Research the law. What and where research, including a glossary.

Again, this book is a large volume of information. It is well organized and has cost many bars and examples. If you have a question about criminal law, more than likely that this book will have an answer. The authors suggest that the law varies from state to state, and I would recommend that in addition to this book, anyone who has dealings with the criminal justice system in their look at the statutes of the jurisdiction should ensure they have the law that is applicable to their case. That’s why I like the last chapter provides guidance in this area. The authors also note that the book is not intended as a detailed guide to self-representation. This is a comprehensive overview of the whole system, but not all, and this because you can not put everything on our complex system in a book.

This is an excellent tour of the criminal justice system and one of the best resources around the layperson who wants or needs to navigate the complex maze of rules and laws that shape our system. I recommend it highly to anyone wanting to know everything about the law.

Incoming search terms:

Background

Mr Ray was a highly respected expert in classical music in England, reputed to have an encyclopaedic knowledge of classical music. He was engaged by Classic FM in the United Kingdom in 1991 to compile the radio station’s repertoire, compile playlists, categorising tracks for play lists, and rate their popularity under each of the categories. The contract did not deal with intellectual property rights. The consultancy agreement was originally for 11 months, however the work of Mr Ray proved beneficial for Classic FM, and his services were extended until 1997. Some 50,000 tracks were eventually categorised. The results of the work were incorporated into a database that was used to select music on a rotational basis, and prevent overplaying.

The project was success. After internal use for about 5 years, Classic FM proposed to licence the database to overseas companies. Mr Ray objected and commenced proceedings to prevent Classic FM licensing the use outside the UK without his permission, on the basis that he was the author of documents that were incorporated into the database.

The Decision of the High Court

Mr Justice Lightman in the High Court ruled that in the case of a consultancy, the author retained the copyright in the absence of an express or implied term to the contrary effect. Where services by a consultant are performed for an express purpose, a court will readily imply a term into a contract for services that a client is entitled to use it for that purpose. In this case, Classic FM always intended to utilise the Mr Ray’s work in the UK. It was not until 1996 that Classic FM intended to exploit Mr Ray’s work overseas. The court was not prepared to imply a licence into the contract that Classic FM would be entitled to exploit his work overseas. Classic FM was prevented from exploiting their database abroad without the consent of Mr Ray, which would require payment of license fees.

When implying licences in this way, a court will only go so far as is necessary in the circumstances to give effect to the intention of the parties. If a grant of a licence is required, the ambit of the licence will be the minimum required to give effect to the intention of the parties at the time of the contract. An implied term that copyright would be assigned to a client will be exceptionally rare, as most often an exclusive licence will have the same effect in law.

The judge held that the contractor retains the copyright in default of some express or implied term to the contrary effect. The contract may expressly state which party is entitled to the copyright, and the mere fact that the contractor has been commissioned – performed by a contractor – is insufficient to grant rights in the copyright to the client. In the absence of express rights, the client is left to establish an entitlement under the express or implied term of the contract.

Conclusion

The decision means that contractors retain the copyright in the absence of an implied or express term. An implied licence must be reasonable and equitable; necessary to give business efficacy to the contract, capable of clear expression and not contrary to any express term of the contract, and so obvious that it goes without saying. This means that a licence will be implied for the client to use the work for the stated purposes at the outset of the engagement. It is important to document the purposes of the engagement and the intended use for the copyright work created during the course of the engagement.