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Sojourner Douglass College Nassau, Bahamas Campus

Assignment for Course: Submitted to: Submitted by: Date of Submission: Title of Assignment: 2) “The courts in the “United States have jealously guarded the rights of accused persons.” Discuss. CERTIFICATION OF Authorship: I certify that I am the author of this paper and that any assistance I received in its preparation is fully acknowledge and disclosed in the paper. I have also cited any success from which I used data, ideas or words, either quoted directly or paraphrased. I also certify that this paper was prepared by me specifically for this course. Student Signature: ____________________________________________ Instructor’s Grade on Assignment: _________________________________________________ Instructor’sComments:___________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ _____________________________________________________________________________ ____ POS 200 American Government Mr. Vernal Collie Rodman Deleveaux 21th September, 2011

if James requests his mother. the police must refrain from highlighting the arrestee. This was done because he wanted transportation to go to watch a game in the Georgia Dome. For example. evidence obtained pursuant to the invalid arrest can be excluded from trial. any identification by the victim may be excluded from trial. the officers must honor the request and refrain from questioning James. If these warnings are not read to an arrestee as soon as he taken into custody. if an arrestee is white. They may choose to do a photo arrays or lineups. However. she then called the police reporting her car stolen and over heard the thefts that they were on their way to Georgia. the police must follow certain guidelines during their investigations. An officer also may make a warrantless arrest of persons who commit a crime in the officer's presence. She suspected it was her son. After the arrest. In this case the Miranda was read to all persons involved. they hold him for questioning in connection with the stolen car. In this case a warrant was not obtained due to the nature of the case. the police may attempt to confirm that they have arrested the right person. These warnings apprise an arrestee of the right to obtain counsel and the right to remain silent. but it was not her son who the police found an hour later 3 blocks away from the house. . an officer may not show a witness a series of photographs in which all of the other subjects are black. For example.James stole his mother’s car one night and went joy riding from Fort Lauderdale to Atlanta with some friends. The police may call in the mother to verify that the person they have in custody is the actual person she suspect of stealing her car. any statements that the arrestee makes after the arrest may be excluded from trial. When an arrest is made. In this case the mother suspected it was her son. However. the arresting officer must read the Miranda warnings to the arrestee. The general rule is that to make an arrest. An invalid arrest is not generally a defense to prosecution. an attorney or expresses a wish to remain silent. If an identification procedure is too suggestive. However. if an arrest is unsupported by probable cause. Since the police found James in possession of the car with his friends. the officer may make a warrantless arrest. the police must obtain an arrest warrant. and there is no time to obtain a warrant. in this case the officer has probable cause to believe that a crime has been committed.

.be deprived of life.The phrase "procedural due process" refers to the aspects of the Due Process Clause that apply to the procedure of arresting and trying persons who have been accused of crimes and to any other government action that deprives an individual of life. Pleading that "the laws and statutes of England are to me most ." and what procedural protections are "due" to that individual. including notice of rights. The Sixth Amendment to the U. "In all criminal prosecutions. Procedural due process limits the exercise of power by the state and federal governments by requiring that they follow certain procedures in criminal and civil matters. Queen Mary was charged with Treason for allegedly conspiring to assassinate Queen Elizabeth I. the accused shall enjoy the right … to have the Assistance of Counsel for his defense. post-indictment lineups. in part. In cases where an individual has claimed a violation of due process rights. Queen of Scots. and the first appeal of conviction. Supreme Court have also construed this Right to Counsel Clause to mean that an impoverished. Constitution holds. All legal procedures set by statute and court practice. illustrates the harshness of denying the assistance of counsel in a criminal case. S. or property.S.S. without due process of law. Mary asked for the assistance of counsel. or property. The universal guarantee of due process is in the Fifth Amendment to the U. Arraignment. While somewhat indefinite the term can be gauged by its aim to safeguard both private and public rights against unfairness. must be followed for each individual so that no prejudicial or unequal treatment will result." This clause grants to all defendants the right to an attorney from the moment they are taken into police custody. or indigent. liberty. The decisions of the U. The Right to Counsel Clause was a reaction against the English practice of denying the assistance of an attorney in serious criminal cases and requiring defendants to appear before the court and defend themselves in their own words. The 1586 trial of Mary Stuart. liberty.. courts must determine whether a citizen is being deprived of "life. These critical stages include Custodial Interrogation. or property. preliminary hearings. trial. defendant has the constitutional right to the presence of a court-appointed attorney at critical stages in the criminal proceedings. sentencing. The American Constitution which provides "No person shall. liberty." and applied to all states by the 14th Amendment. From this basic principle flow many legal decisions determining both procedural and substantive rights.

The main constitutional provisions regarding criminal procedure can be found in Amendments IV. The right of the people to be secure in their persons. and the persons or things to be seized. supported by Oath or affirmation. The Sixth Amendment addresses the procedures required at trial. sentencing. including the death penalty. without due process of law. Constitution. and to be informed of the nature and cause . The Fourth Amendment covers the right to be free from unreasonable searches and arrests. I am destitute of counsellors … and no man dareth step forth to be my advocate" (Winick 1989. or property. It reads. they are designed to enforce the constitutional rights of criminal suspects and defendants. which district shall have been previously ascertained by law. A warrant is a paper that shows judicial approval of a search or arrest. and Mary was summarily convicted and executed by decapitation. against unreasonable searches and seizures. houses. All warrantless searches are unreasonable unless they are executed pursuant to one of several exceptions carved out by the Court. nor shall be compelled in any criminal case to be a witness against himself. Self-Incrimination. investigation. beginning with initial police contact and continuing through arrest. and no Warrants shall issue. it prohibits unreasonable searches. The U. The Fifth Amendment covers an array of procedural concerns. or otherwise infamous crime. nor be deprived of life. Supreme Court has held that the Fourth Amendment does not require a warrant for all searches. 787). It provides. rather. and the general right to due process. trial. in all criminal prosecutions. No person shall be held to answer for a capital. unless on a presentment or indictment of a Grand Jury … nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb. Specifically. and VIII to the U.S. and effects. and appeals. papers. Criminal procedures are safeguards against the indiscriminate application of criminal laws and the wanton treatment of suspected criminals. and particularly describing the place to be searched. liberty. by an impartial jury of the State and district wherein the crime shall have been committed. VI.unknown. multiple trials for the same criminal offense (Double Jeopardy).S. Her requests were denied. shall not be violated. the accused shall enjoy the right to a speedy and public trial. V. but upon probable cause.

and procedures vary from state to state. Fifth. nor cruel and unusual punishments inflicted. only fundamental rights are protected. the U. but they may expand them." At first. protection against self-incrimination. The states were free to enact criminal procedures contrary to them until the passage of the Fourteenth Amendment in 1868. Investigation Criminal prosecutions officially begin with an arrest. However. a Speedy Trial. Under the Fourteenth Amendment. . State and federal governments may not limit the protections guaranteed by the Constitution. Sixth. According to the Court. For state courts. and to have the Assistance of Counsel for his defense. federal and state legislatures are responsible for their own criminal procedures. the law protects the defendant against unconstitutional police tactics. these amendments were construed as applying only to federal prosecutions. the Eighth Amendment states. without due process of law" (§ 1). The Fourteenth Amendment forbids the states to "deprive any person of life. even before the arrest. to be confronted with the witnesses against him. Under this approach. assistance of counsel. The Fourth Amendment protects persons against unreasonable searches and seizures by law enforcement officers. or property. and Eighth Amendments. Finally.of the accusation. liberty.S. and protection against double jeopardy. The judicial interpretation of fundamental rights has allowed states considerable leeway in shaping their own criminal procedures. Although their procedural rules and statutes are similar in many respects. Federal courts must comply with all the criminal procedures listed in the amendments to the Constitution. fundamental rights in criminal procedure include freedom from unreasonable searches and seizures. confrontation of opposing witnesses. compulsory process for obtaining witnesses. freedom from Cruel and Unusual Punishment. to have compulsory process for obtaining witnesses in his favor. "Excessive bail shall not be required. Supreme Court has adopted a "selective incorporation" approach to determine precisely what process is due a criminal defendant. nor excessive fines imposed. a jury trial for prosecutions for cases in which the defendant could be incarcerated. The only protections that are not specifically required of states are the Eighth Amendment prohibition against excessive bail and the Fifth Amendment requirement that infamous crimes be prosecuted by grand jury. states must provide most of the criminal safeguards found in the Fourth.

upon seeing police officers patrolling the streets in an area known for heavy narcotics trafficking. The defendant is informed of the charge or charges if she or he has not already been so informed. The U. the defendant may be placed in a holding cell to await presentation before a magistrate. During an arrest.Generally. the defendant is photographed and fingerprinted. Either way. and shoelaces. it may occur with minimal police investigation. After being stripped of all personal items. the defendant is subjected to a cursory search for weapons and contraband. although police officers may lawfully prevent a criminal suspect from entering his or her home while they obtain a search warrant. flees from the officers on foot. a police officer prepares a complaint against the suspect. Supreme Court has held that reasonable suspicion is provided for a stop-and-frisk type of search when a pedestrian who. a Search Warrant is required before an officer may search a person or place. These include the right to remain silent and the right to an attorney. While the person waits for this first appearance before the court. police station. The court reviews the complaint to determine whether there is sufficient legal basis to hold the person in custody. which are less serious than felonies. in other cases. belts. THE STAGES OF A CRIMINAL PROSECUTION A criminal prosecution usually begins with an arrest. and the arrest is entered into the police log. After arrest.S. the defendant may be released with the posting of a cash bond and a promise to appear before a magistrate. But the Fourth Amendment does prohibit police officers from detaining pedestrians and conducting any kind of search of their clothing without first having a reasonable and articulable suspicion that the pedestrians are engaged in criminal activity. and persons who are stopped for questioning are completely free to refuse to answer any such questions and to go about their business. During booking. The defendant is also allowed to make one telephone call. a criminal suspect is advised of his or her Miranda rights. In some cases. or blotter. It is screened by prosecutors and then submitted to the court. For misdemeanors. the arrest is the culmination of a police investigation. The defendant is then driven to the nearest jail. If the magistrate . The complaint is a document that describes the alleged crime. or detention center for booking. the manner in which the police investigate suspects and collect evidence is almost always an issue in a criminal case. Police officers need no justification under the Fourth Amendment to stop persons on the street and ask questions.

In some jurisdictions. The magistrate then allows the defendant to post bail or leave on her or his own recognizance. a felony case proceeds to a Preliminary Hearing. This is usually a public defender. Following the first appearance. If the charge is a misdemeanor. if the magistrate determines that the defendant presents a danger to the community or may attempt to flee. If a deal can be reached. but this limit may extend to seventy-two hours if the arrest is made on a Friday. the court appoints an attorney. such as the right to remain silent and the right to an attorney. In the first appearance. . the first appearance serves as an Arraignment. If the magistrate finds probable cause. Bail consists of the conditions the defendant will have to meet to gain release from custody pending trial. the magistrate may refuse to set bail. the magistrate sets bail in the first appearance. The defendant in a misdemeanor case does not always qualify for a free attorney. In such a case. the magistrate informs the defendant of the charge or charges as set forth in the complaint. the defendant is forced to remain in jail until the case is resolved. the attorney meets with and represents the defendant in the first appearance. and it is acceptable to the defendant. it is presented to the court for approval at the preliminary hearing. Many jurisdictions impose a twenty-four-hour limit on initial detention before a hearing. but it may be a private defense attorney paid by the court or working free of charge. Before this hearing is held. The magistrate also informs the defendant of his or her rights. the prosecutor and the defense attorney communicate to see if there is any possibility of a plea bargain.finds that the facts alleged do not establish Probable Cause to believe that the suspect committed the crime. In most states. If the defendant in a felony case is not already represented by private counsel and is unable to afford private counsel. Bail is intended to guarantee the defendant's appearance at trial. where the defendant enters a plea of guilty or not guilty. The first appearance must be held without unnecessary delay. Acceptable bail is usually cash or other liquid assets. or a mutually acceptable disposition of the case. with the understanding that the defendant will reappear for trial. the magistrate must dismiss the complaint and order the release of the person from custody.

and the defendant may do the same. In a grand jury proceeding. A grand jury is a group of private citizens summoned to review. in private. review by a Grand Jury is also required before a felony prosecution may continue. a grand jury consists of more jurors than a trial jury. the opposing side's witnesses. or crossexamine. or a written accusation sworn to by the prosecutor. and the grand jurors may ask questions of the prosecutor. or a refusal of the indictment. If a majority finds probable cause. Both sides are allowed to question. They rarely overturn verdicts on evidentiary bases. Unlike the first appearance. and prosecution continues. In some states. which is similar in form to an indictment but written and approved by the prosecutor alone.S. state court defendants appeal to a first court of appeals. The prosecutor then presents a proposed indictment. the grand jury returns a true bill. the prosecution's evidence. the prosecution files the indictment with the trial court.The preliminary hearing is conducted by the magistrate to determine whether the prosecution has sufficient evidence to continue the prosecution. Supreme Court. This means the defendant attacks the conviction in an action other than an appeal. the court may dismiss the charges if they are not supported by probable cause. After the indictment or information courts review criminal convictions for trial court errors. After exhausting all appeals. Supreme Court. The most common method of collateral attack is submission of a petition . it will affirm the conviction if it feels the error did not affect the outcome of the case. Even if an appeals court finds a trial court error. Where no grand jury was required and only a preliminary hearing was held. the preliminary hearing is adversarial. If a majority of the grand jury finds no probable cause for the prosecution. the prosecutor presents the evidence against the defendant to the grand jurors. which usually numbers twelve.S. Generally. the court may decline to hear the case. After this hearing. a defendant sentenced to incarceration may collaterally attack the conviction and sentence. court of appeals and then to the U.S. Generally. the prosecution files information. In federal cases. defendants appeal to a U. The prosecutor relies on witnesses to present the prosecution's evidence. Following a true-bill finding by a grand jury. it returns a no bill. and then to the U. this review is not required for a misdemeanor prosecution. then to the highest state court (usually the state supreme court). The review of appeals after the first appeal is discretionary. that is.

Clemency is forgiveness and mercy. or Parole.for a writ of Habeas Corpus. an inmate will ask for the writ in state court before filing in federal court. such as voting and gun ownership. For federal crimes. the inmate must be set free. Parole is granted by the state or federal parole board or correctional board. the president retains the power of clemency. Some inmates are given early release from prison. Generally. and it usually comes in the form of a pardon or of a commutation of a sentence. A commutation decreases or suspends an inmate's sentence. A habeas corpus petition is not an appeal. courts will grant a writ of habeas corpus only if the defendant can prove that the court that sent the petitioner to prison was actually powerless to do so or that such detention violated the petitioner's constitutional rights. the defendant may be sentenced to death. to meet certain conditions on release and to meet regularly with a parole officer for the duration of the sentence. In some states. It allows the inmate to finish the prison sentence in the community. A pardon releases the inmate from custody and restores his or her legal rights and privileges. All procedures were followed and complied to. And finally in the case of James his mother let him sit in jail for two (2) nights to teach him a lesson. or parolee. However. The police had evidence to convict James of theft – stealing an automobile. challenging the legality of the imprisonment. if the conviction was for first-degree murder. The court requires a paroled defendant. no relief is granted if the new evidence would not have made a difference in the verdict. If the court approves the writ. A commutation is a lesser form of clemency because it does not restore the legal rights of the inmate. Where the sentence is death and the defendant has lost all appeals and collateral attacks. . the defendant may ask the governor of the state for clemency. This is a civil action against the warden of a prison. All states also have a procedure in place to hear claims of newly discovered evidence.

Ed. 118 S. 2d 838 (2001). Miranda v. James J. 120 S. Tomkovicz. Wardlow. 488. United States. Chapman. 528 U. 522 U. "Detention Without Due Process. The Right to the Assistance of Counsel: A Reference Guide to the United States Constitution. Israel.S. 2002. 2003. 93. J. 139 L. Ct. 2d 570 (2000) Hudson v. 2d 450 (1997). 2001. Arizona: The Rights of the Accused. U. Conn. Liz. 2004. 121 S.: Greenwood Press. Roland." Saint Louis University Law Journal 45 (spring). 1977.thefreedictionary. Illinois v.Reference Cassel. Jr. Ed. 326. . Jerold H. http://legal-dictionary. Ct." Chicago Daily Law Bulletin 149 (March 13). McArthur. New York: New York University Press. 145 L.S. 946. Illinois v. Pennock.S.. Westport. "Free-Standing Due Process and Criminal Procedure: the Supreme Court's Search for Interpretive Guidelines. 148 L. Due Process. 673. and John W. New York: Rosen. Ct. Ed. Sonneborn. Douglass W.