[Private] Request for review: Power of court to subpoena evidence.

Eluvatar

Eluvatar

TNPer
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I have accepted the request for review.

I have asked for a 3 day timeframe to allow deliberations to at least begin well before voting does, to accommodate TNP v tSRoNK.

If either that choice or my decision not to recuse myself (as moderating justice of the trial from which this request for review originates) appear suspect please let me know!

If you believe you need to recuse yourself on this request for review, please let me know as soon as possible.

I don't think we should deliberate on substance until all submissions are in.
 
I personally see no issue with you not recusing yourself, but I can see the potential for others to call on it (as, you have stated, you are moderating justice for the trial the review originates). Unless someone decides to call on it, I see no issue with it as it stands.
 
I believe the Court should be able to subpeona evidence from the executive if the executive will not provide it willingly upon request. Failure of the executive to provide evidence in support of criminal proceedings appears (to me) to be in violation of Article 9 of the Bill of Rights.
 
So, do you suggest that this power is only effective to review a decision by the executive to decline to provide information freely requested?

What about the Security Council? Private citizens?
 
Eluvatar:
So, do you suggest that this power is only effective to review a decision by the executive to decline to provide information freely requested?

What about the Security Council? Private citizens?
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I believe it pertains only to governmental authorities, of which the Security Council is a part. So it would not be permissible to subpeona evidence from individuals because of the nature of our legal structure and because that could violate their right against self-incrimination.

And yes, I believe the government authority must reject (or unduly delay) a request before the Court steps in.
 
While I don't agree with the evaluation of Gracius on the reading of BoR Article 9, I do agree that the Court should step in should the executive deny a request that has been freely requested.

I was going to argue that the Court should have the right to subpoena evidence from across the board (including citizens), but GM does bring up a good point when it comes to self-incrimination. I will have to stand down on that point. I hadn't previously considered self-incrimination and will admit fault in my judgement there.
 
I think it's possible to compel testimony without compelling self-incrimination.

However, there is no statute regarding compulsory testimony, so I would be... cautious... about effectively creating one.
 
Eluvatar:
I think it's possible to compel testimony without compelling self-incrimination.

However, there is no statute regarding compulsory testimony, so I would be... cautious... about effectively creating one.
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I would see testimony and the providing of evidence (outside of testimony) as distinct and separate things and would not like to see that in the ruling. The request that has been made in this instance (and has not yet been rejected by the govt) is regarding discussions but no request for testimony has been made.
 
As we generally require testimony to verify documents, the two are inextricably linked.

Compelling the release of documents which self-incriminate is equivalent to compelling self-incriminating testimony, no?

That being said, given that I'm not too comfortable with ordering disclosure from persons who have not sworn an oath necessitating it without statutory authority, I'm considering drafting a ruling along these lines, which I hope would be unanimous:

1. The Court has no statutory or explicit constitutional authority to order disclosure or testimony in general: this has occasionally been cause for concern [historical citations].
2. In order for the Court to fulfill its bill-of-right mandated duties to run a fair trial, however, as in [cite duty of AG to disclose exculpatory evidence ruling], the Court must and therefore may order the disclosure of information necessary for a fair trial.
3. As the Court is best positioned to review the decisions of others rather than issue its own, it is appropriate for the Court not to issue such orders in the first instance. It is after a branch of the government has been presented with a request for information, and has chosen either to release it or to decline, that the Court is best positioned to review such a decision.
4. In general, exculpatory evidence may not be kept secret if a prosecution is to go forward.
 
Yes, I agree with the ruling.

To the other point, I do not believe testimony would be needed to validate a release of information under a freedom of information request or similar. It is generally assumed that the government would not alter forum posts, etc., as it would require multiple parties in collusion in violation of their oaths. In taking a govt role it is also understood that things said in 'private' could be released at a later date or with a trial. So, no, in regards to governmental evidence, I don't think testimony is inextricably linked.
 
Draft:



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Ruling of the Court of the North Pacific​
In regards to the Judicial Inquiry filed by flemingovia on the power of the Court to subpoena evidence​

The Court took into consideration the Inquiry filed here by flemingovia.

The Court took into consideration the Relevant Bill of Rights of the North Pacific, clause 7:

7. When charged with criminal acts, Nations of The North Pacific shall have a fair, impartial, and public trial before a neutral and impartial judicial officer. In any criminal proceeding, a Nation is presumed innocent unless guilt is proven to the fact finder by reasonably certain evidence. A Nation may be represented by any counsel of the Nation's choosing. No Nation convicted of a crime shall be subject to a punishment disproportionate to that crime.
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The Court took into consideration the Relevant Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by Gaspo on the Existence of a Duty to Disclose:

The Court had determined that in order for a nation to have equal and fair treatment and protection of law and due process of said law a duty to disclose all exculpatory evidence is in fact created by the Bill of Rights. The Court reviewed the Bill of Rights and the Request filed by Gaspo on this matter. The Court is in unanimous agreement that a duty to disclose all exculpatory evidence does in fact exist under the provisions of the Bill of Rights. The Court also notes that if in such a case the prosecution unknowingly posses exculpatory evidence when they are made aware of such evidence it must be disclosed to the Court and the Defense Council immediately.
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The Court opines the following:

The Court has no statutory or explicit constitutional authority to order disclosure or testimony in general: this has occasionally been cause for concern, such as when Attorney General Gasponia sought to prosecute several members of the United Defenders League in the wake of the Warhammer 40000 incident.

In order for the Court to fulfill its bill-of-right mandated duties to run a fair trial, however, as in the Ruling of the Court of the North Pacific In regards to the Judicial Inquiry filed by Gaspo on the Existence of a Duty to Disclose, the Court must and therefore may order the disclosure of information held by any branch of government necessary for a fair trial.

As the Court is best positioned to review the decisions of others rather than issue its own, it is appropriate for the Court not to issue such orders in the first instance. It is after a branch of the government has been presented with a request for information, and has chosen either to release it or to decline, that the Court is best positioned to review such a decision. The Court is entitled to treat a refusal to respond in a timely manner as a refusal of the request.

In general, exculpatory evidence may not be kept secret if a prosecution is to go forward. No nation may be convicted of any crime if exculpatory evidence exists and is not available to the defense. The revelation of such evidence after the fact, which could have been made available but was not, could well invalidate a conviction.
 
Edited in attribution to the ruling as I forgot to include it before posting ("Opinion drafted by Eluvatar, joined by Gracius Maximus and Kialga").
 
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