NCJ Number
18162
Journal
University of Florida Law Review Volume: 26 Issue: 4 Dated: (SUMMER 1974) Pages: 825-843
Date Published
1975
Length
19 pages
Annotation
A COMMENTARY WHICH PROFILES THE NATURE OF THE PRELIMINARY HEARING AND DISCUSSES WHETHER THE PRELIMINARY HEARING OR THE GRAND JURY INDICTMENT AFFORDS A MORE APPROPRIATE DETERMINATION OF PROBABLE CAUSE.
Abstract
THE AUTHOR REVIEWS THE 1973 DECISION OF THE FIFTH CIRCUIT COURT OF APPEALS IN PUGH V. RAINWATER, WHICH HELD THAT ARRESTED PERSONS HAVE A RIGHT TO PROMPT EVALUATION BY A NEUTRAL PARTY OF PROBABLE CAUSE TO DETAIN FOR PROSECUTION. IN THIS DECISION THE COURT ALSO RULED THAT THE STATE ATTORNEY, WHO ISSUES ALL INFORMATIONS, IS TOO INVOLVED IN THE PROSECUTORIAL MACHINERY TO MAKE A FAIR AND IMPARTIAL EVALUATION. CRITICISMS OF THE PRELIMINARY HEARING, A DISCUSSION OF THE TOTAL VULNERABLITY OF THE PRELIMINARY HEARING TO PREEMPTION BY GRAND JURY INDICTMENT, AND AN EXPLORATION OF THE CLOSE RELATIONSHIP BETWEEN THE GRAND JURY AND THE PROSECUTION ARE PROVIDED. THE AUTHOR ARGUES THAT A JUDICIAL MAGISTRATE IN A PRELIMINARY HEARING IS A BETTER ARBITER OF PROBABLE CAUSE THAN EITHER THE STATE ATTORNEY OR THE GRAND JURY, AND THAT THE GUARANTEED RIGHT TO A PRELIMINARY HEARING UPON ARREST WOULD BEST PROTECT THE CONSTITUTIONAL RIGHTS OF THE INNOCENT CITIZEN. (AUTHOR ABSTRACT MODIFIED)