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Journal of Criminal and Criminology Volume 50 Article 13 Issue 1 May-June

Summer 1959 and Civil Rights G. Douglas Gourley

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Recommended Citation G. Douglas Gourley, Criminal Procedure and Civil Rights, 50 J. Crim. L. & Criminology 71 (1959-1960)

This Criminology is brought to you for free and open access by Northwestern University School of Law Scholarly Commons. It has been accepted for inclusion in Journal of Criminal Law and Criminology by an authorized editor of Northwestern University School of Law Scholarly Commons. SCIENCE

CRIMINAL PROCEDURE AND CIVIL RIGHTS

G. DOUGLAS GOURLEY The author is head of the Department of Police Science and Administration at Los Angeles College, Los Angeles. Mr. Gourley retired in January 1957 as an Inspector in the Los Angeles Police Department after 20 years of service. Included in his assignments in the Los Angeles Department was that of Commander of the Training Division, and in addition he has served as an Instructor of Police Science Administration at the University of Southern California before assuming his present duties at Los Angeles State College. Mr. Gourley is author of Public Relations and the Police (Charles C Thomas Publisher) and has published a number of professional articles including several in this Joumal.-EDITOR.

Many a officer has complained, Even before that far off date, when man first either vocally or to himself, that often it appears started to regulate his brother's conduct, he has that the present rules of criminal procedure were been concerned with machinery for the administra- designed for the protection of the guilty, rather tion of justice. In the day of the wooden shield and than the efficient administration of criminal war dub there were no nice distinctions made be- justice. To some, rules of procedure seem to place tween and civil wrongs. Disputes were hurdle after hurdle in the path of speedy and ag- settled by physical means and either the gressive law enforcement. In reality they are de- or was carried off the field. The first signed to protect the individual from the arbitrary improvements in the administration of justice or capricious exercise of authority by despots and were characterized by attempts to regulate private persons in public office and other high places; they combat with various rules and standards, rather are based on a philosophy which maintains that than to establish a system of criminal law. It was every defendent is entitled to a fair and that not until adequate mores and customs were de- it is better to permit several guilty persons to go veloped sufficiently to maintain at least a code of free than to convict one who is innocent. unwritten law that personal grievances could be In order to understand the philosophy and settled by to . It was not until the mechanics of criminal procedure as it exists today tribe, and later the state, assumed its obligations in America it is necessary to have some familiarity as administrator of justice, that criminal procedure with the history of our theory of government, became an official prosecution, rather than an un- particularly those facets which deal with the age official private skirmish. After personal standards old struggle of the common people in all countries had finally given away to collective group ideas of to obtain and preserve the fundamental human right and wrong, legal standards and ethical con- rights and which we refer to today as civil cepts began to develop. rights and civil liberties. ThE ANTIQUITY OF CIVIL RIGHTS THE BEGINNINGS oF CInUnNAL PROCEDURE Interwoven throughout the fabric of criminal Our theory of government, which embraces procedure as we know it in America today, is the criminal procedure, developed through many cen- concept of civil rights and civil liberties. Contrary turies in before its introduction to the to popular and contemporary impression, civil western hemisphere. This political development rights were not initiated by the misappropriation played a major role in determining criminal proce- of the King's tea in Boston Harbor. Civil rights in dure as it is administered today. In order to under- a varying degree are as old as mankind. They have stand the theory and purpose, the "why" of appeared in ancient civilizations and then been criminal procedure, it is necessary to briefly review lost to reappear hundreds of years later. Each new the history of man's struggle for freedom and nation that has recreated them always claims to . have invented something new. G. DOUGLAS GOURLEY [Vol. so

GREECE AND RoME ment and civil liberties. The Anglo-Saxons in Pre- According to western standards, civil rights are Norman times utilized numerous assemblies and of fairly recent origin. It would be entirely mis- in which all free-men were encouraged to participate. In many cases these were little more leading to say, however, that civil rights originated justice was in Anglo-American culture. Ancient Greece and than old tribal gatherings in which determined by common council. later the Roman Empire had many traces of civil rights similar to our western system today. In Although there are those who claim otherwise, it would appear that civil rights have developed Athens particularly during the Fifth Century B.C., In any a form of civil liberty was a right of the citizenry. through enlightened political progress. event the very foundations of Anglo-American civil Equal opportunities for participation in govern- periods of ment, trial by , to be confronted by witnesses, and criminal procedure developed during benevolent despotism in the Norman era of English and be judged by one's peers was guaranteed ma- during Athenian Democracy. True, the society of history. Indeed, it seems strange that the chinery of our present judicial system should find ancient Greece was relatively simple, and her civil its birth during the totalitarianism of medieval rights concepts could hardly be compared to at first modern western procedure, but she did guarantee days. Actually, criminal and civil procedure existed only as a feudal expediency and civil rights her citizenry an equal opportunity to practice the applied to the few only in unwritten feudal law customs of her particular culture. It would be stretching things to say that the and custom. Romans adopted and practiced a system of civil AssIzEs OF HENRY II rights to any extent. During the Republic they came about as close to anything resembling civil Among the first landmarks in the development rights as in any period of their history. We are in- of the English judicial system were certain of the debted to the Romans, for political theory although assizes or of Henry II. Most important of they did not practice it to any great extent them- these was the Assize of Clarendon in 1166, which selves. For the following theories, basic to our own laid down the outline of a new system. Prior law, we must give credit to the Romans: the social to this time the courts were either local affairs theory (that government originated as a administered by the feudal nobility or the church. voluntary agreement among citizens), the idea of There was no centralized administration of justice popular sovereignty (that all power ultimately except for a few royal traveling judges sent out on resides with the people), the principle of the circuit by the crown. More specifically, the Assize separation of powers, and the belief in the equal- of Clarendon created permanently the system of ity and brotherhood of man. It should be remem- circuit judges, and was the first attempt to write bered, however, that when we connect civil rights in contrast to the mere rewording of tradition with the ancient peoples of Greece and Rome, and custom. we apply this principle to only a fraction of the The Assize of Clarendon transformed into - population. Fifty percent of the population of ten law the Norman custom of utilizing witnesses Athens was slaves, and in the later days of the to give information under oath to the king's offi- Roman Empire only a small percentage of the pop- cials. It ordered the sheriffs to select certain bodies idus could claim the privileges of citizenship. Al- of men who were expected to report all crimes though this is a far cry from civil rights as we which the witnesses thought should be tried. This know it today its application within a particular is undoubtedly the direct ancestor of our modern nation seems to be only a matter of degree; rarely . The "presentments" of Henry's if ever has its administration embraced the entire were turned over to the royal judges on circuit, citizenry. Today in our own nation its scope has who then tried the accused persons. broadened, and its guarantees have become more THE extensive. There are those who will contend, how- ever, that even in America its application is not About this time (1215) there came into existence universal. an instrument which historians point to as the "corner-stone of English liberty". Actually, it was THE ANGLO-SAXON EvOLUTION no more than a feudal agreement between a power- The English peoples have always maintained a ful nobility and an unruly king. John I was a rogue strong inclination towards representative govern- even for Thirteenth Century England. His open 19591 CRIMINAL PROCEDURE AND CIVIL RIGHTS corruption and thievery abused the feudal code to it had never been before. In an effort to curb the such an extent that the irritated nobles rose against powers of the throne they translated the Magna him. After a few were unhorsed, and a few Carta into a statement of the liberties of all Eng- villages ravaged, the English finally cor- lish people. nered John at Runnymede where he was forced to HABEAS Coxpus AcT or 1679 sign the well-known Magna Carta or Great of England. During the reign of Charles I other restrictions In reality the Magna Carta did not introduce were placed upon arbitrary royal power. The most anything new. It merely compelled the king to notable of these was the Act of respect the ancient customs and the unwritten 1679, which provided for a writ, compelling the feudal law. It seems he had not been playing the custodians of a person, witness or prisoner, to bring game according to the rules. The barons were fur- him before a or . The effect of thering their own selfish interests by limiting the this act was to safeguard persons against arbitrary powers of the king, and restricting the scope of detention or . By the use of this writ his activity. Most of the population of medieval the unlawful imprisonment of a person could be England were serfs whose social and political challenged. Habeas corpus proved to be one of the were little more than that of slaves. Some have fundamental guardians of a rapidly growing system said that the Magna Carta was not designed to of civil rights in England. It has found its way guarantee civil rights to the citizens. In reality into the Federal and most state con- this is partly true, but we should not judge its im- stitutions in the United States. portance by its initial purpose. A few of the most ENGLISH BILL OF RIGHTS significant sections pertaining to civil rights are quoted: The bloodless removal of the last remaining "A freeman shall only be amerced for a Stuart, James II, brought with it a new line of small offense according to the measure of kings and a new series of civil rights. When William that offense. And for a great offense he shall and Mary accepted the throne from Parliament, be amerced according to the magnitude of the offer was contingent upon their recognition and the offense, saving his continement;... And observance of a declaration of rights, later enacted none of the aforesaid fines shall be imposed as the Bill of Rights (1689). Rivaling the Magna save upon oath of upright men from the neigh- Carta in importance, this declaration provided that borhood. (1) the king could not suspend the operation of No freeman shall be taken, or imprisoned, laws, (2) no money was to be levied without con- or outlawed, or exiled, or in any way harmed sent of Parliament, (3) freedom of speech in and ...nor will we go upon or send upon him out of Parliament was to be assured, (4) was . ..save by the lawful judgement of his peers not to be excessive, and (5) Parliament ought to or by the law of the land. To none will we be held frequently. sell, to none deny or delay, right or justice. POLITICAL PHILOSOPHY We will not make men , constables, sheriffs or bailiffs, unless they are such as Any historical treatment of civil rights as it know the law of the realm and are minded relates to criminal procedure would be incomplete to observe it rightly." if it were restricted to only political and legislative The importance of the Magna Carta lies not in developments. These institutions of mankind have its influence upon the particular era in which it always lagged behind intellectual and social prog- was written but in the subsequent use of it. The ress. During the Seventeenth and Eighteenth Cen- nobles, in acting to preserve their own interests, turies in both England and upon the continent of established principles which were later to be ap- Europe, a new middle class arose, made up mostly plied in ways of which they had never dreamed. It of and professional men who wanted to is the foundation of modem liberties in the sense bring about sweeping changes in government and that it marked the first successful limitation of the civil rights. This urban middle class challenge of royal authority. It was a symbol of the triumph autocratic and monarchical authority provided a of law over the personal authority of the king. In stimulating environment for the thinkers of the the 17th Century the Magna Carta was inter- time. Great thinkers like John Locke, Montes- preted by legal-minded reformers into something quieu, and Rousseau supplied the philosophical G. DOUGLAS GOURLEY [Vol. 50 ammunition for the sweeping changes that were statement of rights. The Declaration of Independ- to take place. There is not space here to expound ence, which severed the tie with Britain, ex- upon the theories of these writers, but they and pounded the very philosophy upon which the struc- others like them were to provide the moral justifi- ture of government in the United States was to be cation for the revolutions in and America. built. In reality, the Declaration of Independence The political philosophy of John Locke, how- was more of an initial declaration of rights than a ever, is so important to our present concepts of statement of seccession. This document expounded civil rights that something of what he advocated that (1) all men were created equal, (2) that they must be pointed out. The English in the Eight- were endowed with certain unalienable rights, (3) eenth and Nineteenth Centuries absorbed and crys- that government derives its powers from the tallized many of his concepts into a body of legal people, and (4) that the people have the right to , the Americans into their national and abolish and institute a new government when they state . Locke's Two Treatises of Gov- so desire. ernment, contended that (1) the right to life, lib- erty, and was inherent in the very order CONSTITUTION OF THE UNITED STATES of nature, (2) man possessed certain natural rights, In the summer of 1788, the Constitution of the (3) government was created to guarantee the en- United States had been ratified by nine state con- joyment of those natural rights, (4) the people ventions and gone into effect for those adopting delegated or contracted to the government an au- it. The remaining states reluctantly followed in thority to regulate, but their basic rights in so doing 1789; the last being North Carolina and Rhode were neither impoverished or surrendered, and (5) Island. popular sovereignty rests with the people who can The philosophy of government which prompted remove or replace an unruly government. this document is well expressed by its Preamble. Nothing in the past so well illustrates our present We, the people of the United States, in order philosophy of civil rights in relation to the individ- to form a more perfect union, establish justice, ual and his government. It undoubtedly helped to insure domestic tranquillity, provide for the inspire the drafting of the Declaration of Independ- common , promote the general welfare, ence, and the first ten amendments to the Con- and secure the blessings of liberty to ourselves stitution of the United States, which are commonly and our posterity, do ordain and establish this referred to as the "American Bill of Rights". Constitution for the United States of America.

CIVIL RIGHTS IN COLONIAL AmERICA AmERICAN BILL OF RIGHTS The colonial period in United States history Several of the states refused to ratify the Con- lasted for about two hundred years. During this stitution until more explicit guarantees of individ- time much of English government, law, and ideol- ual rights and liberties had been incorporated in ogy was transplanted in America. As was men- it. This was done by the addition of the first ten tioned before Englishmen have always tended to- amendments which were ratified in 1791. This doc- ward representative government and civil rights, ument, containing the first 10 amendments to the and the colonies were no exception. The colonial Constitution is commonly referred to as the environment of North America coupled with an Bill of Rights or the American Bill of Rights, English heritage that deplored authoritarianism to distinguish it from the English Bill of Rights created a psychological environment in which "rug- of 1869. ged individualism" could grow. In 1765 and again Of these amendments those that have the most in 1774 the colonial congress through two consecu- direct bearing on criminal procedure are: tive declarations of rights made it unmistakably clear to the British government that its auto- AMENDMENT IV cratic, and dictatorial policies were not to their Seizures, Searches and Warrants liking. The right of the people to be secure in their persons, houses, papers, and effects, against DECLARATION OF INDEPENDENCE unreasonable searches and seizures, shall not When the inevitable break came with Great be violated, and no warrants shall issue, but Britain, the colonies justified their separation in a upon probable cause, supported by oath or 1959] CRIMINAL PROCEDURE AND CIVIL RIGHTS

affirmation, and particularly describing the fled. Although numerous and varied, civil rights place to be searched, and the persons or things naturally fall into (1) those relating to personal to be seized. status, and (2) those having to do with property. Another and even more comprehensive classifica- AMNDMENT V tion might subdivide the former into substantive Criminal Proceedings and Condemnation of rights and procedural rights. Substantive rights Property pertain to the fact and essence of freedom and are No person shall be held to answer for a expressed in such declarations as: immunity from capital, or otherwise infamous , unless slavery and involuntary servitude; freedom of reli- on a presentment or indictment of a grand gion, speech, and the press; right of assembly and jury, except in cases arising in the land or petition; right to keep and bear arms; equal pro- naval forces, or in the militia, when in ac- tection of the laws; and treason restricted and tual service in time of war or public danger; defined by constitution. On the other hand, pro- nor shall any person be subject for the same cedural rights relate to the mechanics of safeguard- offense to be twice put in jeopardy of life or ing personal freedom, and of guaranteeing an im- limb; nor shall be compelled in any criminal partial administration of the laws. It is here that case to be a witness against himself, nor be the study of criminal procedure is found. In brief, deprived of life, liberty, or property, without procedural rights forbid such things as bills of due process of law; nor shall private property attainder and ex post facto laws. It creates regu- be taken for public use, without just compen- latory devices in judicial and "enforcement" pro- sation. cedure such as: indictment by grand jury, habeas corpus, trial by jury, search and seizure, and "due AMENDMENT VI process." Mode of Trial in Criminal Proceedings In all criminal prosecutions, the accused SUMMARY shall enjoy the right to a speedy and public In summary some general features of our system trial, by an impartial jury of the State and of civil rights can be enumerated. In the first place district wherein the crime shall have been com- our system of rights is the product of hundreds of mitted, which district shall have been pre- years of political development. This evolutionary viously ascertained by law, and to be informed process has created a philosophy that government of the nature and cause of the accusation; is a creation of the people, and exists at the pleasure to be confronted with the witnesses against of the people, for their benefit. It has powers con- him; to have compulsory process for obtaining ferred or agreed to, but not all power. In other witnesses in his favor, and to have the assis- words, the people have reserved certain powers tance of for his defense. which government is forbidden to invade-forbid- den negatively through lack of constitutional au- AMENDmENT VIII thorization or positively through constitutional -Fines-Punishments prohibition. The individual owes his government Excessive bail shall not be required, nor loyalty, obedience, and service, but requires it to excessive fines imposed, nor cruel and unusual observe his fundamental rights. These rights are punishments inflicted. often thought of as being granted to him, but Since the ratification of these original documents, actually he has reserved them for himself. one hundred and sixty-seven years of political de- Another outstanding feature of our theory of velopment has witnessed the incorporation of civil rights is its extreme complexity. There can be eleven additional amendments, and the majority no full listing of civil rights for a complete list of the states hawe patterned their constitutions would be endless. In addition to this difficulty a after the federal example. comprehensive picture of civil rights today would not hold true tomorrow. Judicial construction is CrviL RIGHTs IN AMERICA TODAY constantly in a state of change depending upon the Space does not permit a discussion of each facet current philosophy and social theories of American of civil rights contained in our present federal and society. state systems. They can, however, be quickly classi- Last but by no means of least importance is the G. DOUGLAS GOURLEY [Vol. 50 fact that civil rights do not bestow an arbitrary of criminal procedure. Modern rules of criminal license upon anyone: they are relative, not abso- procedure are not designed for the protection of lute. In the final analysis government is an insti- the guilty but rather to insure that the accused, tution created to procure the greatest good for whether he be guilty or innocent, be given a fair the greatest number. It protects the many from and impartial trial. These rules have been de- the few. Liberty under present concepts is not veloped to reduce to a minimum the chances of an the biological freedom of the animal world; not a innocent person being wrongfully convicted, "survival of the fittest." As the people require whether by chance or design and to insure that their government to observe their unalienable each case will be decided on it's own merits regard- rights so also does their government require that less of possible biases, preconceptions, and prej- they too observe the inherent rights of each other. udices of persons involved in the process of criminal procedure. CONCLUSION Law enforcement officers, like all citizens, have It is hoped that this brief review of mankinds' a heavy stake in American Democracy. They, as struggle to protect the rights of individuals against much as any and more than most citizens, are in a the arbitrary exercise of authority by persons in position to carry out and make effective our the- positions of power will make more understandable ories of government, particularly as they relate to and acceptable to law enforcement officers the rules criminal procedure and civil rights.