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Periodical article Periodical article Leiden University catalogue Leiden University catalogue WorldCat catalogue WorldCat
Title:The undefended accused/defendant: a brief overview of the development of the American, American Indian and South African positions
Author:Bekker, P.M.ISNI
Periodical:The Comparative and International Law Journal of Southern Africa
Geographic term:South Africa
Subjects:criminal procedure
rights of the accused
Abstract:The values and principles in terms of which criminal liability and appropriate penalties are determined are shared by most Western legal systems and are termed the principles of fair trial, or in American jurisprudence, the principles of due process. The procedures through which these common principles are pursued vary from jurisdiction to jurisdiction. In Anglo-American common law jurisdictions, the mode of procedure is adversarial, while on the European continent it is inquisitorial. South Africa has inherited the British adversarial system. Because this system is party-centred, lawyers for both the State and defence play a dominant role in the pursuit of procedural justice. In South Africa the majority of accused are indigent and consequently face a trial within the adversarial system without a defence lawyer. This overview first examines the development of the notion of legal representation for most American defendants (as laid down in the Sixth and Fourteenth Amendments to the American Constitution). Thereafter, it considers the position of the American Indian defendant in a criminal trial in the tribal court (paying attention to the Indian Civil Rights Act of 1968) and that of a South African accused in a criminal trial. At present it is still a dream that every man charged with a crime will be capably defended. The remainder of the article discusses the first steps towards realizing the dream. Notes, ref.