DOCSLIB.ORG

Civil Rights Violations

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Civil Rights Violations Civil Rights Violations Police Misconduct Nicholas S. Kamau, Esq. Police Misconduct Any improper or illegal behavior engaged in by a police officer while attempting to administer justice Types of Police Misconduct Excessive Force – The use of force that exceeds the amount of force that a police officer reasonably believes is necessary. Whether the amount of force was objectively reasonable under the circumstances is a factual issue to be determined by the jury. Types of Police Misconduct Sexual Misconduct- Sexual misconduct includes sexual harassment or sexual assault, indecent assault, an act of indecency, possession of child pornography or other behaviors of a sexual nature which are crimes in Pennsylvania. Sexual misconduct is the second most reported form of police misconduct. Types of Police Misconduct Witness Tampering –This behavior concerns an officer who attempts to either change a witness’ testimony, or prevents a witness from testifying in a criminal or civil proceeding. Types of Police Misconduct False confessions – Some officers convince individuals to give false confessions, convincing them to plead guilty to something they did not actually do. Types of Police Misconduct Racial profiling – Racial profiling is the use of someone’s race or ethnicity as a justification for suspecting him of committing a crime. For instance, assuming a man must be a terrorist because he’s Muslim, or assuming a black man driving an expensive car must have stolen it. Types of Police Misconduct False Arrest - A false arrest is an arrest that is made without a warrant, or without probable cause. A person may sue on the grounds of false arrest if there was not a legitimate reason to arrest him in the first place. Scope of Problem Police killed 1,147 people in 2017. Black people were 25% of those killed despite being only 13% of the population Policy Issues Regarding Police Killing POLICE MISCONDUCT IN PHILADELPHIA Over the last five years, internal investigators have sustained 1,222 complaints against officers. Of the 1,222 sustained complaints only 160 cases yielded a departmental finding of guilty. Internal Affairs Investigations Internal Affairs investigations are informal tribunals comprising of a three-member panel of sworn officer. Complaint allegations can be sustained or not sustained through the internal affairs investigation. Sustained findings are referred to the Police Board of Inquiry (PBI) to determine what if any disciplinary action is appropriate. In practice, the standard of proof in disciplinary proceedings is somewhat higher than "preponderance of the evidence" because complainants usually will not prevail without a corroborating witness. Criminal Prosecution Crimes are considered offenses against the state, or society as a whole. Crimes are prosecuted by the state, and the prosecutor (not the victim) files the case in court as a representative of the state. A jury or judge will decide whether the prosecution has proven its case. If a the defendant is found guilty, they will face a penalty involving a loss of liberty and restitution. In order to sustain a conviction, the prosecution must prove guilt beyond a reasonable doubt. This is a very high burden. While no numerical value has been set for the level of proof, the standard requires the finder of fact to be fully convinced. Civil Cases Wrongful, or negligent conduct causing the victim physical, economic or emotional injury are grounds for filing a lawsuit. Unlike criminal offenses, the victim, not the state files the lawsuit. A jury or judge will decide whether the plaintiff has proven their case. In a civil case the plaintiff is awarded money to compensate them for the harm they suffered. The Plaintiff must prove that the defendant’s actions caused their injuries by a preponderance of the evidence—more likely than not. Statue of Limitations In Pennsylvania, a victim has two years to file a lawsuit from the date of the harm. Civil Lawsuits Against Police State Court • Wrongful Death Lawsuit • Civil Battery • Civil Assault • False Arrest • Intentional Infliction of Emotion Distress Wrongful Death Wrongful death claims are brought against the police officer who has caused the victims death either intentionally or negligently. Wrongful death claims allow the estate of the deceased person to file a lawsuit against the party who is responsible for the death. In order to bring a successful wrongful death cause of action, the following elements must be present: The death of a human being; Caused by another’s negligence, or with intent to cause harm; The survival of family members suffer as a result of the death, and; The appointment of a personal representative for the decedent's estate. Wrongful Death Pecuniary, or financial, injury is the main measure of damages in a wrongful death action. Courts have interpreted "pecuniary injuries" to including the loss of support, services, lost prospect of inheritance, and medical and funeral expenses. Determining Pecuniary Loss Considerations include: • Age; • Earning capacity; • Life expectancy; • Health; and • Emotional and psychological loss suffered by the death Survival Actions for Personal Injury In addition to damages for wrongful death, the personal representative may be able to recover damages for personal injury suffered by the decedent. These are called "survival actions," since the personal injury action survives the person who suffered the injury. The decedent's personal representative can bring such an action together with the wrongful death action, for the benefit of the decedent's estate. Survival Actions for Personal Injury In a survival action for a decedent's conscious pain and suffering, the jury may make several inquiries to determine the amount of damages, including: • The degree of consciousness; • The severity of pain; • The apprehension of impending death, and • The duration of such suffering. Civil Battery The elements to establish civil battery are generally the same as for criminal battery. According to the Restatement (Second) of Torts, the assailant doesn’t have to intend to have physical contact with his victim in order for civil battery to occur. He must merely intend to cause the imminent apprehension, or fear, of physical harm in his victim. For example, if a defendant merely intended to scare the plaintiff by swinging a baseball bat near him, but the plaintiff was accidentally hit by the bat, the plaintiff would have a case for civil battery. Civil Battery A successful civil suit for battery will require the plaintiff to prove that the following elements were present: The intentional touching of, or application of force to, the body of another person, In a harmful or offensive manner, and Without the victim’s consent Civil Assault Unlike battery, civil assault doesn’t require that the defendant have any physical contact with the victim. As long as the victim is placed in fear of imminent contact, no actual physical contact or injury need occur. For example, if a defendant intended to scare the plaintiff by swinging a baseball bat near him, and the plaintiff was put in fear of physical injury, the plaintiff would have a case for civil assault. Civil Assault In a civil suit for assault, the plaintiff will have to prove that the following elements were present: An intentional attempt or threat to inflict injury on another person, Coupled with an apparent ability to cause the harm, Which creates a reasonable apprehension of bodily harm or offensive contact in the victim False Arrest • False arrest is the unlawful violation of the personal liberty of another consisting of detention without sufficient legal authority. An arrest is unlawful when the police officers in question did not have probable cause to make the arrest. • An arresting officer who fails to take the arrested person before a court or magistrate within a reasonable time or without unnecessary delay is guilty of false imprisonment. • Similarly, an officer who arrests a person without a warrant is liable for false imprisonment by detaining the prisoner an unreasonable time. False Arrest The elements necessary to make out the tort of false arrest: Detention or restraint against a person’s will, Unlawfulness of the detention or restraint (without probable cause) Resulting in injury or harm Intentional Infliction of Emotional Distress Intentional infliction of emotional distress generally involves some kind of conduct that is so terrible that it causes severe emotional trauma to the victim. In such cases, the victim can recover damages from the person causing the emotional distress. Not all offensive conduct qualifies as intentional infliction of emotional distress. The conduct must be reprehensible. Intentional Infliction of Emotional Distress The plaintiff must prove the following elements: The defendant's conduct was extreme and outrageous The defendant acted intentionally or recklessly The conduct could be expected to adversely affect mental health The defendant's conduct caused such severe distress (and possible also bodily harm) Civil Lawsuits Against Entities and Police Federal Court The Violent Crime Control and Law Enforcement Act 42 U.S.C.A. § 14141. The U.S. Department of Justice has jurisdiction to investigate, prosecute and file lawsuits against local municipal police departments, not individual police officers. Federal Civil Enforcement "Police Misconduct Provision" makes it unlawful for State or local law enforcement officers to engage in a pattern or practice of conduct that deprives persons of rights protected by the Constitution or laws of the United States. (42 U.S.C. § 14141). The Violent Crime Control and Law Enforcement Act 42 U.S.C.A. § 14141. The types of conduct covered by this law include: excessive force, discriminatory harassment, false arrests, coercive sexual conduct, and unlawful stops, searches or arrests. The Violent Crime Control and Law Enforcement Act 42 U.S.C.A. § 14141. In order to be covered by this law, the misconduct must constitute a "pattern or practice" • The DOJ must show that the agency has an unlawful policy or that the incidents constituted a pattern of unlawful conduct.
Load more

Recommended publications
  • Pattern Criminal Jury Instructions for the District Courts of the First Circuit)
    UNITED STATES DISTRICT COURT DISTRICT OF MAINE 2019 REVISIONS TO PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE DISTRICT COURTS OF THE FIRST CIRCUIT DISTRICT OF MAINE INTERNET SITE EDITION Updated 6/24/19 by Chief District Judge Nancy Torresen PATTERN CRIMINAL JURY INSTRUCTIONS FOR THE FIRST CIRCUIT Preface to 1998 Edition Citations to Other Pattern Instructions How to Use the Pattern Instructions Part 1—Preliminary Instructions 1.01 Duties of the Jury 1.02 Nature of Indictment; Presumption of Innocence 1.03 Previous Trial 1.04 Preliminary Statement of Elements of Crime 1.05 Evidence; Objections; Rulings; Bench Conferences 1.06 Credibility of Witnesses 1.07 Conduct of the Jury 1.08 Notetaking 1.09 Outline of the Trial Part 2—Instructions Concerning Certain Matters of Evidence 2.01 Stipulations 2.02 Judicial Notice 2.03 Impeachment by Prior Inconsistent Statement 2.04 Impeachment of Witness Testimony by Prior Conviction 2.05 Impeachment of Defendant's Testimony by Prior Conviction 2.06 Evidence of Defendant's Prior Similar Acts 2.07 Weighing the Testimony of an Expert Witness 2.08 Caution as to Cooperating Witness/Accomplice/Paid Informant 2.09 Use of Tapes and Transcripts 2.10 Flight After Accusation/Consciousness of Guilt 2.11 Statements by Defendant 2.12 Missing Witness 2.13 Spoliation 2.14 Witness (Not the Defendant) Who Takes the Fifth Amendment 2.15 Definition of “Knowingly” 2.16 “Willful Blindness” As a Way of Satisfying “Knowingly” 2.17 Definition of “Willfully” 2.18 Taking a View 2.19 Character Evidence 2.20 Testimony by Defendant
    [Show full text]
  • Working with the Justice Sector to End Violence Against Women and Girls
    Working with the Justice Sector to End Violence against Women and Girls Developed by: Cheryl Thomas, Director, Women’s Program Laura Young, Staff Attorney, International Justice Program Mary Ellingen, Staff Attorney, Women’s Program Contributors: Margarita Alarcon, Lawyer (Cuba) Dr. Kelly Askin, Senior Legal Officer, International Justice, Open Society Justice Initiative, United States Lisa Dailey, Lawyer (United States) Geraldine R. Bjallerstedt, Lawyer, Head of Nairobi Office, Raoul Wallenberg Institute of Human Rights and Humanitarian Law (Kenya) Terence Fitzgerald, Senior Program Specialist, Justice Operations Division, International Justice Mission (United States) Loretta Frederick, Senior Legal and Policy Advisor, Battered Women’s Justice Project, (Minnesota, United States) Albena Koycheva, Lawyer (Bulgaria) Audrey Lee and Ann Campbell, International Women’s Rights Action Watch Asia Pacific (Malaysia) Sara A. Lulo, Executive Director, Avon Global Center for Justice, Adjunct Professor of Law, Cornell Law School (United States) Patricia MacIntosh, Deputy Minister of Community Services (Canada) Aileen Marques, Lawyer (India) Eniko Pap, Lawyer (Hungary) Dr. Maria F. Perez Solla, Lawyer (Austria) Justice Sonia A.C. Rivera, Senior Judge, Gender Violence Specialized Court (Madrid, Spain) Dr. Anicée Van Engeland-Nourai, Lecturer in Law, University of Exeter, Research Associate, SOAS (United Kingdom) Joan Winship, Executive Director, International Association of Women Judges (United States) Justice Sector Module 1 December 2011 INTRODUCTION
    [Show full text]
  • PRECEDENTIAL UNITED STATES COURT of APPEALS for the THIRD CIRCUIT ___No. 10-2790 ___UNITED STATES of AMERI
    PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _____________ No. 10-2790 _____________ UNITED STATES OF AMERICA v. GLORIOUS SHAVERS, a/k/a G, a/k/a G-Bucks, a/k/a Julious Colzie, a/k/a Glorious Grand Glorious Shavers, Appellant _____________ No. 10-2931 _____________ UNITED STATES OF AMERICA v. JERMEL LEWIS, a/k/a STAR, a/k/a PR-STAR, a/k/a P Jermel Lewis, Appellant _____________ No. 10-2971 _____________ UNITED STATES OF AMERICA v. ANDREW WHITE, Appellant _________________ On Appeal from the United States District Court for the Eastern District of Pennsylvania (Crim. Nos. 08-01616-001, 08-0161-002, 08-0161-003) District Judge: Honorable J. Curtis Joyner Argued March 19, 2012 _________________ Before: RENDELL, FISHER, and CHAGARES, Circuit Judges. (Filed: August 27, 2012) 2 Keith M. Donoghue, Esq. (Argued) Robert Epstein, Esq. Kai N. Scott, Esq. Federal Community Defender Office for the Eastern District of Pennsylvania 601 Walnut Street The Curtis Center, Suite 540 West Philadelphia, PA 19106 Attorneys for Appellant Glorious Shavers Paul J. Hetznecker, Esq. (Argued) Suite 911 1420 Walnut Street Philadelphia, PA 19102 Attorney for Appellant Jermel Lewis Carina Laguzzi, Esq. Laguzzi & Associates 1500 John F. Kennedy Boulevard Suite 200 Philadelphia, PA 19102 Attorney for Appellant Andrew White Robert A. Zauzmer, Esq. (Argued) Arlene D. Fisk, Esq. Office of United States Attorney 615 Chestnut Street Suite 1250 Philadelphia, PA 19106 Attorneys for Appellee 3 __________________ OPINION __________________ CHAGARES, Circuit Judge. This is a consolidated appeal by three codefendants, Glorious Shavers, Andrew White, and Jermel Lewis (collectively referred to as the “appellants”), who were convicted of robbery affecting interstate commerce, conspiracy to commit robbery affecting interstate commerce, witness tampering, and using and carrying firearms during and in relation to a crime of violence.
    [Show full text]
  • STATE V. ORTIZ—CONCURRENCE BISHOP, J., Concurring in Part and Concurring in the Judgment
    ****************************************************** The ``officially released'' date that appears near the beginning of each opinion is the date the opinion will be published in the Connecticut Law Journal or the date it was released as a slip opinion. The operative date for the beginning of all time periods for filing postopinion motions and petitions for certification is the ``officially released'' date appearing in the opinion. In no event will any such motions be accepted before the ``officially released'' date. All opinions are subject to modification and technical correction prior to official publication in the Connecti- cut Reports and Connecticut Appellate Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the Connecticut Law Journal and subsequently in the Con- necticut Reports or Connecticut Appellate Reports, the latest print version is to be considered authoritative. The syllabus and procedural history accompanying the opinion as it appears on the Commission on Official Legal Publications Electronic Bulletin Board Service and in the Connecticut Law Journal and bound volumes of official reports are copyrighted by the Secretary of the State, State of Connecticut, and may not be repro- duced and distributed without the express written per- mission of the Commission on Official Legal Publications, Judicial Branch, State of Connecticut. ****************************************************** STATE v. ORTIZÐCONCURRENCE BISHOP, J., concurring in part and concurring in the judgment. I believe that the evidence at trial was suffi- cient to convict the defendant, Akov Ortiz, of tampering with a witness in violation of General Statutes § 53a- 151 (a), not for the reasons stated by the majority, but because the trial evidence permitted the jury reasonably to infer, from the defendant's threatening behavior toward the victim, that he intended to prevent the victim from testifying at trial.
    [Show full text]
  • Ground Lost and Found in Criminal Discovery Roger J
    University of California, Hastings College of the Law UC Hastings Scholarship Repository Published Scholarship The onorH able Roger J. Traynor Collection 1964 Ground Lost and Found in Criminal Discovery Roger J. Traynor Follow this and additional works at: http://repository.uchastings.edu/traynor_scholarship_pub Recommended Citation Roger J. Traynor, Ground Lost and Found in Criminal Discovery , 39 N.Y.U. L. REV. 228 (1964). Available at: http://repository.uchastings.edu/traynor_scholarship_pub/21 This Article is brought to you for free and open access by the The onorH able Roger J. Traynor Collection at UC Hastings Scholarship Repository. It has been accepted for inclusion in Published Scholarship by an authorized administrator of UC Hastings Scholarship Repository. For more information, please contact [email protected]. 7c Ti, L GROUND LOST AND FOUND IN CRIMINAL DISCOVERY ROGER J. TRAYNOR Reprinted from New York University Law Review April 1964, Vol. 39, No. 2, pp. 228-250 New York University School of Law Arthur T. Vanderbilt Hall 40 Washington Square South New York, N. Y. 10003 Q Copyright, 1964, by New York University GROUND LOST AND FOUND IN CRIMINAL DISCOVERY ROGER J. TRAYNOR system is that it elicits a reasonable T HEapproximation plea for the ofadversary the truth. The reasoning is that with each side on its mettle to present its own case and to challenge its op- ponent's, the relevant unprivileged evidence in the main emerges in the ensuing clash. Such reasoning is hardly realistic unless the evidence is accessible in advance to the adversaries so that each can prepare accordingly in the light of such evidence.
    [Show full text]
  • The Forfeiture by Wrongdoing Exception To
    THE FORFEITURE BY WRONGDOING EXCEPTION TO THE CONFRONTATION RULE * JAMESMARKHAM JULY 2006 TABLE OF CONTENTS Introduction.................................................................................................................1 I. Background..........................................................................................................4 II. The Forfeiture Exception to the Crawford Rule..................................................4 A.A Note on Federal Rule of Evidence 804(b)(6)..............................................5 B.Intent to silence...............................................................................................7 1.Cases Finding No Intent-to-Silence Requirement......................................8 2. Cases Preserving the Intent-to-Silence Requirement.................................9 C.Reflexive Application of the Forfeiture Rule...............................................11 1.Cases Applying Forfeiture Reflexively....................................................13 2.Cases Refusing to Apply Forfeiture Reflexively.....................................16 D.Standard of Proof..........................................................................................17 Conclusion................................................................................................................19 INTRODUCTION The Supreme Court’s decision in Crawford v. Washington1 transformed its doctrine governing the Confrontation Clause of the Sixth Amendment to the Constitution. UnderCrawford, the Confrontation
    [Show full text]
  • Witness Tampering Is Against the Law!
    WITNESS TAMPERING IS AGAINST THE LAW THE DEFENDANT SHOULD NEVER THREATEN OR BRIBE YOU! If someone is trying to stop you from going to court or telling the truth in court you can get help with a SAFETY PLAN: WITNESS The ASU Diane Halle Center for Family Justice TAMPERING IS (602) 258-1656 It is against the law for the defendant AGAINST THE to offer a bribe to a victim or witness. Phoenix Family Advocacy Center (602) 534-2120 or (888) 246-0303 LAW! What is a bribe? Under the law a bribe is a promise of Voice for Victims “any benefit” to a witness to stay (480) 600-2661 or (602) 416-6780 quiet, lie, or not show up in court. The Arizona Coalition Against Domestic Violence Examples: (602) 279-2900 or (800) 782-6400 Each of the following statements could be a bribe: “If you testify . Maricopa County Attorney’s Office “I will stop beating you.” Investigations Division (602) 506-8370 “I will pay the rent.” If someone bribes you or “I will buy you a car." Remember… threatens to stop you from “I will buy the kids presents.” If you need immediate help or if you are in an emergency, testifying in court, you may be a victim of “witness tampering.” call 9-1-1 right away! *Witness tampering is the most common crime committed KNOW THE LAW ON against abuse victims. *Please share widely* WITNESS TAMPERING *Help us stop it! The ASU Diane Halle Center for Family Justice By Hannah Burnidge, 3L & Prof. Sarah Buel with thanks to the many who gave suggestions.
    [Show full text]
  • Witness Intimidation: Meeting the Challenge T�� P����������’ R������� �� V������� A������ W����
    Witness Intimidation: Meeting the Challenge T�� P����������’ R������� �� V������� A������ W���� 1100 H S����� NW, S���� 310 MainW���������, | 202- 55DC8- 200050040 Fax | 202-393-1918 ���.AE������R�������.��� © quitas: The Prosecutors’ esource on Violence gainst a project of the Pennsylv gainst 2013 AE R A Women, This projectania was Coalition supported A by GrantRape. No. 2010-MU-BX-K079 awarded by the Bureau of Justice Assistance. The Bureau of Justice Assistance is a component of the Of�ice of Justice Programs, which also includes the Bureau of Justice Statistics, the National Institute of Justice, the Of�ice of Juvenile Justice and Delinquency Prevention, the SMART Of�ice, and the Of�ice for Victims of Main | 0 - 8-0040 Fax | 0 - - 18 1100 H S����� NW, S���� 310 | W���������, DC 20005 Crime. Points of view or opinions in this document are those of the authors and do not represent Thethe of�icial information position provided or policies in this of thepublication U.S. Department is for educational of Justice. purposes only and is not intended 2 2 55 2 2 393 19 ���.AE������R�������.��� to provide legal advice to any individual or entity. Table of ContentsTABLE OF CONTENTS I. The Scope of the Problem .....................................................................................7 A. What is intimidation? .............................................................................................7 Physical violence ...........................................................................................................7 Verbal
    [Show full text]
  • Putting Forfeiture to Work
    Putting Forfeiture to Work Sarah M. Buel* Intimate partner violence (“IPV”) victims are increasingly turning to the courts for help, too often with poor results. Successful witness tampering by offenders sabotages the court system by silencing victims through an array of unlawful conduct, including coercion and violence. The doctrine of forfeiture by wrongdoing should afford a viable solution, but several obstacles constrain its efficacy. Much confusion exists regarding witness tampering and forfeiture law as a result of the recent trilogy of the Crawford, Davis, and Giles Supreme Court decisions. Their cumulative effect is decreased doctrinal uniformity within a perplexing scheme that is difficult to implement. The resulting uncertainty contributes to massive ongoing underenforcement of witness tampering laws and conflicting interpretations of forfeiture doctrine. In response, this Article advances two main arguments: first, the forfeiture doctrine’s application in IPV cases has been woefully inadequate; and second, a more robust notion of forfeiture is needed to clarify and empower the intent-to-silence calculus. A pernicious backlash by legal stakeholders against IPV victims further taints the process, as does the frequent and system-wide minimization of victim harm. This Article locates the courts’ ambivalence in community norms that must evolve to ensure forfeiture can be the remedy its drafters intended. A more vigorous forfeiture doctrine will further the legislative intent of offender accountability coupled with victim protection and resuscitate the law’s crucial signaling aspect. IPV victims’ * B.A., Harvard Extension School; J.D., Harvard Law School; Clinical Professor, University of Texas School of Law; former domestic violence and juvenile prosecutor, and advocate since 1977.
    [Show full text]
  • Victim Witness Intimidation
    ENT OF M JU U.S. Department of Justice T S R T A I P C E E D B O J C S Office of Justice Programs F A V M F O I N A C I J S R E BJ G O OJJ DP O F PR National Institute of Justice JUSTICE National Institute of Justice R e s e a r c h i n A c t i o n Jeremy Travis, Director October 1995 Highlights Victim and Witness Intimidation: Prosecutors in some jurisdictions re- port an increase in victim and wit- New Developments and Emerging Responses ness intimidation: some prosecutors have estimated intimidation as a by Kerry Murphy Healey factor in 75 to 100 percent of the violent crimes committed in some Intimidation of victims and witnesses witnesses by gangs or drug-selling groups gang-dominated neighborhoods. This Research in Action summarizes undermines the functioning of the justice promotes the communitywide perception recent developments in gang- and system by denying critical evidence to that any cooperation with the criminal jus- drug-related intimidation of victims police and prosecutors. This long-stand- tice system is dangerous. and witnesses, current responses to ing problem also erodes confidence in the problem by police and prosecu- the government’s ability to protect citi- This Research in Action is based on struc- tors, and emerging models and zens. Victim and witness intimidation tured interviews with 32 criminal justice strategies for its prevention and has usually been associated with orga- professionals from 20 urban jurisdictions, suppression. nized crime and domestic violence including prosecutors; victim services di- cases.
    [Show full text]
  • Witness Intimidation
    WITNESS INTIMIDATION WHAT YOU CAN DO TO PROTECT YOUR WITNESS Prosecutors’ Center for Excellence May 2016 WITNESS INTIMIDATION WHAT YOU CAN DO TO PROTECT YOUR WITNESS Table of Contents INTRODUCTION .................................................................................................. 1 INITIAL MEETING AND SAFETY ASSESSMENT .......................................... 1 CONSIDERATIONS FOR SEARCH WARRANTS ........................................ 10 ARREST TO ARRAIGNMENT......................................................................... 11 ACCUSATORY INSTRUMENTS AND NOTICES ................................................................ 11 INITIAL ARRAIGNMENT .................................................................................................. 12 THE PRELIMINARY HEARING AND GRAND JURY ......................................................... 15 FELONY ARRAIGNMENT ................................................................................................. 17 DISCOVERY ........................................................................................................ 16 HEARINGS AND TRIAL ................................................................................... 20 PREPARING FOR HEARING AND TRIAL ......................................................................... 20 HEARINGS ........................................................................................................................ 23 TRIAL ...............................................................................................................................
    [Show full text]
  • Restoring the Presumption of Innocence
    Restoring the Presumption of Innocence SHiMA BARADARAN* The most commonly repeated adage in U.S. criminaljustice is the presumption of innocence: defendants are deemed innocent until proven guilty. Historically, this presumption carried important meaning both before and during trial. However, in light of state andfederal changes in pretrialpractice, as well as Supreme Courtprecedent restrictingthe presumption'sapplication to trial,the presumption of innocence no longer protects defendants before trial. These limitations on the presumption are fundamentally inconsistent with its constitutional roots. The results of the presumption's diminution are also troubling as the number of defendants held pretrialhas steadily increasedsuch that the majority ofpeople in our nation'sjails have not been convicted of any crime. Few contemporary legal scholars have focused on the dwindling pretrialpresumption, let alone its constitutionalimplications. This Article fills the void by examining, historically, how the Due Process Clause provides the constitutional basis for the presumption of innocence and how that presumption secures at least one pretrial right: the right to release on bail, absent serious flight risk. This Article introduces three principles to ensure that the pretrial presumption of innocence remains true to its constitutional roots. Returning the presumption to its constitutionalfoundation and ensuring its application in ways that are consistent with that foundation will result in less confusion in the courts and a more consistent approach to pretrial decisions. TABLE OF CONTENTS I. INTRODUCTION .............................................................................. 724 II. HISTORICAL UNDERSTANDING OF THE PRESUMPTION OF INNOCENCE... 727 A. Bail Was Presumedfor NoncapitalCases and Guilt Was Not D etermined Pretrial................................................................ 728 B. Purpose of Bail Was Return to Court, Not Preventing A dditional Crimes ..................................................................
    [Show full text]