·
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 Search Warrant
Alabama Uniform Arrest Report Form
·
Although the Constitution does
not use specific term "privacy," the Supreme Court has recognized a
constitutional right to privacy since the mid-1960s. This right is protected
both when people seek to be let alone (as in search and seizure cases) and when
they want to make certain kinds of important decisions (such as marriage and
family planning) free of government interference.
·
The Supreme Court has said that
the Constitution creates "zones of privacy." The zones are derived
from the freedom of speech and association (First Amendment) the freedom from
unreasonable search and seizure (the Fourth
Amendment), the right to remain silent (Fifth Amendment), the right to have
one's home free of soldiers during peacetime (Third Amendment), and the
unspecified rights kept by the people (Ninth Amendment). In addition, because
privacy has been found to be a fundamental right, the government sometimes
justifies privacy protection in terms of substantive due process. The right to
privacy generally protects citizens from unreasonable interference by the
government.
·
The right to privacy sometimes
conflicts with important government interests. For example, the government may
need information about individuals to determine eligibility for government jobs
or programs. In such cases, the government can regulate certain acts or
activities, even though an individual's interest in privacy is affected.
Deciding whether a constitutional right to privacy exists involves a careful
weighing of competing private and government interests.
·
One of the most compelling
interests and responsibilities of the government is to investigate and
prosecute criminal offenses, and punish those found liable. Successful
investigation and prosecution depend on ability of the government to discover
and use incriminating evidence, which may result in very drastic invasion of
privacy of those concerned. Search may have different forms and it is defined
as 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. It extends to any place or location where a person may
reasonably expect to be private. However, when conducting search, police must
never lose the sight of the boundaries set by the law. Requirements for search are strictly
regulated by the law of search that has been developed through the Supreme
Court's interpretations of the Fourth
Amendment. This amendment provides protection of the right to privacy by
forbidding unreasonable searches and seizures and by requiring that any search
warrant be based on probable cause and issued by a judge or magistrate. 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.
Illegal Search and Seizure: Cases and News
Releases
Search and
Seizure (Court TV's Transcripts)
North Carolina
State University: Guidebook - Search and Seizure
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
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.