by Elizabeth Hall
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| John Doe (born John Nommensen Duchac on February 25, 1953 in Decatur, Illinois) (Photo credit: Wikipedia) |
“John Doe is an individual that left his country in an effort to make a better life for himself. However, he does not have legal status in America and was recently arrested for shoplifting, which was valued over $1,000. At the time of his arrest, John voluntarily began to make incriminating statements to the arresting officers. At the police station, detectives conducted an interview of John asking him about the theft. John Doe has had no prior arrests, is 35 years old, and most of John Doe’s family still resides in his home country. Due to the amount of monies involved, the crime is deemed a felony and John was arrested and placed in the county jail in Toms River, NJ” ( Kaplan University Platform, 2010). He is going to face the judge in the Ocean County Superior Court; however, he has no money for bail. We will evaluate the process of his arrest, and procedures following the arrest, to evaluate if John’s rights are being upheld, and along the way, we will explore the procedures involved from arrest through preliminary hearing or grand jury, comparing and contrasting the two.
Police Procedural Steps
John began incriminating himself voluntarily upon arrest. Since this was not at the request of the police, they were under no obligation to Mirandize Mr. Doe. All voluntary information is admissible in court (Osterburg, & Ward, 2007). The Miranda ruling only covers communication initiated by the police. Since they arrested him and took him to the police station, he would go directly to booking. It is proper procedure to read the Miranda Rights, along with being asked, to sign papers stating that his rights were properly explained to him, and it is at this point that pictures, fingerprints, suspect address information, date of birth, along with weight and height measurements. When police do question him, although the rights have already been read in booking, it never hurts to read them again. The Miranda Rulings deal with the admissibility of confessions in the courtroom (Roberson & Stuckey, 2007), and do not imply law enforcement procedure. (Schmallinger, 1991)
Initial Appearance (Arraignment)
After the police interview John, there must be a formal Complaint issued, which contains the name of the accused, the nature of the offense, and the date and time of the offense. Once this is issued, the next step is the initial appearance before a magistrate or judge, or more formally, the arraignment. During this arraignment, the charges are formally read to the defendant, and a plea of guilty, not guilty, not guilty by reason of insanity, no contest, or once in jeopardy will be made. It is also at this stage that the court will appoint John an attorney from the county free of charge, because of his inability to pay. The Fifth Amendment guarantees the right to defense counsel regardless of the ability to pay for one. This was decided in the landmark case, Gideon v. Wainwright. Bail will be discussed now as well. When considering bail, the judge would have to weigh the seriousness of the crime, the weight of evidence against John, and whether or not he has binding ties to the community, along with the criminal history, and whether he has any previous failure to appear issues. We know that most of John’s family is in Mexico, and that he has no binding ties to the community; however, he has no criminal record at all. It is up to the judge to determine if John will be allowed bail based on the weight of these circumstances. (Roberson & Stuckey, 2007)
Preliminary Hearing or Grand JuryHearing
The court could choose to hold a Preliminary Hearing, or a Grand Jury Hearing. There are advantages and disadvantages to both. In a Preliminary Hearing, the judge decides whether there is sufficient probable cause and or evidence to accuse the defendant of a crime. The Grand jury does the same. This is where the similarities end. If probable cause is found during a Preliminary Hearing, the defendant is bound over for trial, where in a Grand Jury Trial they would return a formal indictment against the accused. Preliminary Hearings are open to the public, and, are held in open court. Grand Jury Proceedings are held in closed-door sessions, held in secret. While Preliminary Hearings are formal judicial proceedings, and are adversarial, meaning that both the prosecution and the defense are allowed to present their evidence and cases, Grand Jury Sessions are informal. The prosecution is the only side that they hear. The defendant has right to attend and present evidence at Preliminary Hearings, but is not allowed at all in Grand Jury Proceedings. Another difference between them is that the Grand Jury holds powers that the judge or magistrate does not. These are the power to conduct their own investigations, subpoena witnesses and documents, and to grant immunity. (Roberson & Stuckey, 2007)
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| 31 Aug 2011: Professor John Campbell gave expert testimony during the third day of the Trial Chamber's preliminary hearing on fitness to stand trial. ... ថ្ងៃទី៣១ ខែសីហា ឆ្នាំ២០១១: លោកសាស្ត្រាចារ្យ ចន ខេមប៊ែល ផ្តល់សក្ខីកម្មជំនាញ នៅក្នុងថ្ងៃទីបីនៃសវនាការលើកាយសម្បទា នៅចំពោះមុខអង្គជំនុំជម្រះសាលាដំបូង។ (Photo credit: Wikipedia) |
One advantage to a Preliminary Hearing is that it might bring about a dismissal, conclude that there is insufficient evidence to charge the defendant, or have the charges reduced to a misdemeanor due to lack of felony evidence. Another advantage to this type of hearing as opposed to the Grand Jury is that the defendant can waive this right, resulting in him receiving a quicker trial date if he wants to get the process over faster, and when he does this, it limits the charges to whatever is already existing in the Complaint filed. (Roberson & Stuckey, 2007)
The Grand Jury is a safeguard to the accused, and is guaranteed in the Fifth Amendment that everyone has the right to a fair trial. An advantage to having a Grand Jury Process is that the Grand Jury is composed of sixteen to twenty-three members of the community, which is supposed to represent the defendant’s peers. This method would be considered the fairest, since judges and magistrates can be paid off without this safeguard in place. This keeps our system as honest as it can be considering the nature of man. (Roberson & Stuckey, 2007)
Conclusion
Since John was arrested, and promptly taken to the police station, even though he talked before he was read his rights, the police followed proper procedure in listening to his voluntary words, because, they were initiated by John. He was booked at the station, and then interviewed and then the police set up his arraignment. Depending on the state laws in New Jersey, he will either, receive a Preliminary Hearing, or a Grand Jury Proceeding. If, enough probable cause is found, John will then go on to trial. The fact that John is in the country illegally probably hindered his chances for bail because he has no ties to the community, but it also means that when he is sentenced, deportation maybe a choice he has to avoid jail time. That is at the discretion of the judge, because if it is not made a part of his sentence, when his time is done for the crime, he will be turned over to ICE, which is the agency that deals with illegal immigrants in this country, and probably be deported anyway.
References:
Kaplan University Platform, (2010). Criminal Procedure Week Four. Retrieved From:
Osterburg, J. & Ward, R. (2007). Criminal Investigation: A Method for Reconstructing the Past, Fifth Edition. Chapter 12 pp 296. Matthew Bender & Company, Inc., a member of the LexisNexis Group. Newark, NJ.
Roberson, C., Wallace, H., & Stuckey, G.B. (2007). Procedures in the Justice System. 8th ed. Chapter 3 pp78-112 Chapter 4 pp 113-138 Chapter 5 pp139-163. Pearson Prentice Hall. Upper Saddle River. NJ.
Schmallinger, F. (1991). Criminal Justice Today: An Introductory Text for the Twenty-First Century, Ninth Edition. Chapter 1 pp 17. Upper Saddle River: Pearson Education Inc.
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