DEFENDANT RIGHTS: A Reference Handbook

By Hamid R. Kusha
Santa Barbara: ABC-CLIO, 2004

Hamid Kusha presents us with a book which is part of a series that addresses contemporary world issues. This book is both timely and far-reaching in its stated objectives. We live in an era wherein an awareness of our place in the global community is essential. To do this, we must incorporate an understanding of the nature of different legal systems, and the tension which exists within them between the need to maintain social order and the need to maintain respect for fundamental rights. Defendant Rights attempts to introduce the lay reader to the milestones and key players in the development of the rights of the accused in the criminal process. The stated focus is on the Anglo-American tradition; however, it also attempts to introduce the reader to developments elsewhere in the world.

In this book, the issues addressed pertain to the rights of defendant’s in the criminal process; however, the book has some difficulty reaching its stated objectives. It provides an interesting summary of due process developments in the United States, particularly in chapters 1 (History) and 5 (Key People, Cases and Terms). While the key figures and jurisprudential developments that have resulted in the current machinery of criminal justice in the United States are fascinating reading, the book’s treatment of the rest of the world does not smoothly integrate with these chapters. The treatment of non-U.S. jurisdictions is largely of a general nature, tracing ancient historical origins. Perhaps this is necessary given the tremendous disparity in criminal processes encountered world-wide, but in contrast to the systematic treatment of the developments in the U.S., the reader is left with a cursory knowledge of the criminal process in other jurisdictions.

Recent years have witnessed a reform of the criminal process in most former eastern block countries, now employing western-style due process elements in their criminal procedure. China has recently come forth with a proposal to eliminate imprisonment without trial and to guarantee legal representation for criminal defendants, thereby offering some minimal due process protection for those facing state prosecution. No doubt, many readers will be curious about the extent to which these emerging nations measure up to western standards of fair procedure, but this book does not provide these answers.

It is not only emerging nations that are experiencing a rights-based transformation of their criminal process. The U.K. has recently witnessed the adoption of the Human Rights Act 1998 which has resulted in numerous judgments that have applied the protection of the European Convention on Human Rights to Britons charged with crimes. Canada has experienced more than twenty years with its Charter of Rights and Freedoms, which has dramatically reformed its criminal process. Unfortunately, none of these developments receive any attention in Defendant Rights.

For the Canadian interested in reading just one book on the topic of defendant rights, I would recommend that they read Don Stuart’s Charter Justice in Canadian Criminal Law 3rd ed. (Toronto: Carswell, 2001). There are significant differences in the law governing the rights of the accused in the criminal process in Canada as compared to the United States. Those non-Americans reading Kusha’s book should not delude themselves into thinking that their law is the same as that found in the United States. For those interested in ascertaining an overview of defendant rights in the American context, and gaining a brief introduction to how defendants were historically treated in different legal systems, Kusha’s book is a welcome addition to the field.