Pre-trial procedures are critically important components of the
justice process because the great majority of all criminal cases are resolved
informally at this stage and never come before the courts. They include the
pre-arrest investigation, arrest, booking, the decision to prosecute, the
initial appearance before local magistrate, preliminary hearing or grand jury
hearing, arraignment on the information or indictment, and pre-trial motions.
The essence of the due process safeguards at the pre-trial stage is the
equalization of the ambushing powers of the government and concern for
reasonable protection the defendant's rights. What might therefore seem like a
tilting of the procedural scale in favor of the suspect or the accused is
nothing more than an effort by the courts to compensate the defendant for the
fact that the enormous investigative powers of the police department are
invariably placed at the general disposal of the prosecutor.
Right to Be Free from Unlawful Arrest
Right Against Unwarranted Criminal Charges
Privilege Against Self-Incrimination
Protection Against Adverse Pre-Trial Publicity
RIGHT TO BE FREE FROM UNLAWFUL ARREST
The criminal suspect's first meaningful due process protection is
safeguard against unlawful arrest. The general rule is that arrest can be made
upon issuance of the arrest warrant. To prevent possible abuses of the power of arrest, the law
requires an arrest warrant to be issued by a magistrate or other duly
authorized official upon a sworn statement that a crime has been committed and
that there is probable cause to suspect that the prospective arrestee was responsible for the
commission.
Like many other constitutional protections afforded to the suspect,
the arrest with warrant is not an absolute rule. It may yield to overriding
public security interests or to compelling law enforcement considerations.
The criminal suspect's constitutional safeguard against unlawful
arrest includes the freedom from unwarranted stopping and questioning by a
police officer. However, in what amounts to a permissible concession to the
reasonable demands of law enforcement, the law permits the police practice of
stopping for questioning any citizen who, under the given circumstances, is
deemed by the police officer to be behaving suspiciously.
Affidavit in Support of
Criminal Complaint, Arrest Warrant and Serch Warrant
Powers of Arrest and Limitations (Without Warrant)
Legal Information: Arrests and Searches Form
The right to privacy is based
upon the idea that citizens in free societies should be "left alone"
from government interference. Although the Constitution does not specifically
use the term privacy, the Fourth
Amendment provides protection of this right by forbidding unreasonable
searches and seizures and by requiring that any search warrant be based on
probable cause.
Search is any governmental
intrusion into a person's reasonable and justifiable expectation of privacy. It
is not limited to homes, offices, buildings, or other enclosed places. All
searches must be limited to the specific area and specific items described in
the warrant. General searches are unconstitutional and never legal.
There are several exceptions to
the warrant requirement. They are search with consent, search incident to
lawful arrest, and search under exigent circumstances.
Electronic surveillance is a
form of search and seizure and as such is governed by the Fourth
Amendment. To obtain electronic surveillance warrant, probable cause that a
person is engaging in particular communications must be established by the court,
and normal investigative procedures must have been already tried.
Any evidence obtained by the
government in violation of the Fourth
Amendment is not admissible in a criminal prosecution to prove guilt.
The Fourth
Amendment protection against unreasonable search and seizure applies only
to governmental action and not to the action of private persons.
Understanding Search and Seizure Law
Search and
Seizure (Court TV's Transcripts)
Historic
Supreme Court Decisions
The right to know charges,
referred to as the right to notice, derives from the Sixth
Amendment, which provides that "in all
prosecutions the accused shall enjoy the right to be informed of the nature and
cause of the accusation." Over the years this
right has been interpreted by the courts to mean the following: that the
defendant shall be informed about the form in which the charges have been
brought, that the charges will be spelled out with clarity and particularity,
that a vague and indefinite charges will not suffice, that accusations that are
formulated in a manner that does not adequately inform the defendant of the charges
against him/her shall be dismissed as being formless and obscure.
Directly related to the right
to notice is the judicially created doctrine of void for vagueness. It means
that criminal charges filed because of the violation of the vague or
insufficiently specific criminal statute will be dismissed and such statute
will be declared void for vagueness.
The defendant must be informed
of the criminal charges filed against him/her during the first court
appearance. This appearance must take place within maximum of 48 hours
following arrest. As a minimum standard of due process at the commencement of
the first court appearance, the judge must inform the defendant of: the
complaint against him; any affidavit filed therewith; his right to retain
counsel; his right to request assigned counsel if he is indigent; the general
circumstances under which he may secure pre-trial release; the right to remain
silent and that any statement he makes may be used against him.
RIGHT
AGAINST UNWARRANTED CRIMINAL CHARGES
The right against unwarranted
criminal charges derives from the Fifth Amendment, which provides that "no person shall be held to answer for a
capital, or otherwise infamous crime, unless on a presentment or indictment of
a Grand Jury." The purpose of this pre-trial protection is to prevent
arbitrary or otherwise groundless prosecution. Criminal defendant cannot be
tried before it has been determined that criminal charges that the state filed
against him/her have merits and justify trial. Procedure used to make this
determination is called probable cause hearing and may have the form of grand
jury hearing or preliminary hearing.
A grand jury is ordinarily
comprised of group of randomly selected individuals (sixteen to twenty-three of
them) who theoretically represents a county. To qualify to serve on a grand
jury, an individual must be at least eighteen years of age, a U.S. citizen, and
a county resident for one year or more and possess sufficient English-speaking
skills for communication. In making its determination, grand jury relies on
testimony of witnesses and evidence presented by the prosecutor. After
examining the evidence and the testimony of witnesses, the grand jury decides
whether probable cause exists for the prosecution. If it does, an indictment is
affirmed. If the grand jury fails to find probable cause, criminal charges are
rejected and cannot be filed again.
The preliminary hearing is
employed in about half the states as an alternative to the grand jury hearing.
The preliminary hearing is conducted before a magistrate or lower court judge.
After hearing the evidence, the judge decides whether there is sufficient
probable cause to believe that the defendant committed the alleged crime. If
the answer is the affirmative, the defendant is bound over for trial. When the
judge does not find sufficient probable cause, the charges are dismissed, and
the defendant released from custody.
Bail is money or some other
security provided to the court to ensure the appearance of the defendant at
every subsequent stage of the criminal justice process. Its purpose is to
obtain the release from custody of a person charged with a crime.
The Eighth
Amendment does not guarantee constitutional right to bail, but rather
prohibits excessive bail. However, the Supreme Court interpreted the
institution of bail in case of Stack v. Boyle (1951) as a traditional
right to freedom before trial that permits unhampered preparation of a defense
and prevents the criminal defendant from being punished prior to conviction.
The Court held that bail is
excessive when it exceeds an amount reasonable calculated to ensure that the
defendant will return for trial.
Under federal law a person
accused of a crime, except where the punishment is death, may be admitted to
bail not only after arrest and before trial but also after conviction and
before imprisonment.
PRIVILEGE AGAINST SELF-INCRIMINATION
An uncompromising principle of
procedural due process in American law is the privilege against compulsory
self-incrimination. The root of this privilege is the Fifth
Amendment, which provides that "no
person shall be compelled in a criminal case to be a witness against himself."
Over the years the courts the
courts have given the following interpretation to this Fifth Amendment
protection: the privilege is limited to criminal matters only, the privilege
can be claimed not only by the defendant but also by a witness, the privilege
is strictly personal and as such cannot be claimed on behalf of someone else,
it is available only to natural persons and never to fictitious (juridical)
persons such as corporations, unions, etc.
The right of the defendant to
refuse to testify is so fundamental to the American constitutional system that
the U.S. Supreme Court has held that the exercise of this privilege should not be taken as being the equivalent to a confession of guilt
or to a conclusive presumption of perjury.
A defendant or a witness may
voluntarily waive his/her privilege against self-incrimination by taking the
witness stand. However, once a person has voluntarily testified to
incriminating facts, he/she may not plead the privilege with regard to further
testimony on the subject. He/she also has the duty tom testify truthfully,
subject to prosecution for perjury.
The impression that one may get
is that, under American law, the defendant has no duty to incriminate himself.
But this right is not and never has been intended to be absolute. The defendant
may be forced to appear in line-up, give a blood sample, submit to
photographing, give handwriting samples, submit to fingerprinting, and repeat certain
words or gestures.
In addition to the Fifth
Amendment privilege against self-incrimination, statutes may provide that
certain communications between the defendant and other persons are privileged
and therefore disclosure may not be compelled or coerced (husband-wife,
attorney-client, priest-penitent, doctor-patient, psychologist-client,
accountant-client, journalist-source).
A Guide to the Privilege
Against Self-Incrimination
Historic
Supreme Court Decisions
The Sixth
Amendment guarantees defendants the right to counsel during criminal
proceedings. This right is critical to protection of other constitutional
rights of the accused and to his/her defense against the charge.
The right to appear with one's
counsel applies to every critical step of the proceedings, i.e., not only to
trial stage, but also to the pre-trial proceedings. It begins as soon as one is
questioned about the crime. The decision Miranda
v. Arizona (1966) requires a suspect to be told about the right to an
attorney when he/she is placed under arrest and before interrogation.
A defendant has an unqualified
right to the assistance of his own counsel in connection with any kind of
offense, including traffic offenses. The rule in federal courts is that in all
criminal prosecutions, including prosecution for petty offenses, every
defendant who is unable to obtain counsel shall be entitled to have counsel
assigned to represent him at every stage of criminal proceeding - from his/her
initial appearance before the U.S. magistrate or the court, through appeal. In
state criminal prosecutions an indigent defendant is entitled to an appointed
counsel not only for capital crimes, but also for non-capital felony cases, as
well as in misdemeanor cases, as long as the possible punishment upon
conviction is imprisonment for any period of time.
The defendant has the right to
proceed per se, i.e., to represent him/herself, as long as he/she waives
the right to counsel voluntarily and intelligently.
A reviewing court may set aside
a conviction if it is convinced that the counsel was so grossly incompetent as
to support the inference that the defendant has not had at least a minimum
measure of representation.
Historic
Supreme Court Decisions
PROTECTION AGAINST ADVERSE PRE-TRIAL PUBLICITY
Protection against adverse
pre-trial publicity is one of the key ingredients of the right to a fair trial.
In an adversary system of trial by jury if the defendant is to receive a fair
trial it is essential that adverse pre-trial publicity of his/her case in the
mass media should be prevented. However, the defendant's right to a fair trial
is in direct competition with the First Amendment right of newsman to publish
whatever they deem to be newsworthy information.
The goal is not to prevent all
pre-trial publicity. Rather it is excessive pre-trial publicity that damages
most the chances of a fair trial. When this happens, the following pre-trial
remedies are available to the defendant: a voir dire examination of
prospective jurors, the right to challenge jurors either for cause or
peremptorily, motion for continuances (postponement or adjournment to a future
date) and motion to change venue.
Where it is found that there was excessive adverse pre-trial publicity, any conviction so secured can be deemed violation of due process of law.