Initial Appearance and Detention (From Criminal Justice Administration Cases and Materials, Fourth Edition, P 639-648, 1991, Frank W Miller, Robert O Dawson, et al. -- See NCJ-129355)

• NCJ Number: 129366
• Author(s): F W Miller; R O Dawson; G E Dix; R I Parnas
• Date Published: 1991
• Length: 10 pages
• Sale Source: Foundation Press
• Publication Type: Legislation/Policy Description
• Language: English
• Country: United States of America

Annotation

After presenting Rule 5 of the Federal Rules of Criminal Procedure which pertains to initial appearance before the magistrate, this chapter presents the U.S. Supreme Court's opinion in Gerstein v. Pugh (1975), which considers whether a person arrested under a prosecutor's information is constitutionally entitled to a judicial determination of probable cause for pretrial detention.

Abstract

Under the Florida procedures challenged in Gerstein v. Pugh, a person arrested without a warrant and charged by prosecutor's information may be jailed or subjected to other restraints pending trial without any opportunity for a probable-cause determination. The petitioner defends this practice on the grounds that the prosecutor's decision to file information is itself a determination of probable cause that furnishes sufficient reason to detain a defendant pending trial. The U.S. Supreme Court reasoned in this case that although the prosecutor's determination of probable cause affords a measure of protection against unfounded detention, prosecutorial judgment standing alone does not meet the requirements of the fourth amendment. The Court advises, however, that such a ruling does not imply that the accused is entitled to judicial oversight or review of the decision to prosecute. Also, although a suspect currently detained may challenge the probable cause for that confinement, a conviction will not be vacated on the ground that the defendant was detained pending trial absent a determination of probable cause. Notes on the Court decision are included.