Brief for Respondent — Gerstein v. Pugh

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SUPREME COURT OF THE UNITED STATES—-~

OCTOBER TERM, 1973 .

NO. 73-477

RICHARD E. GERSTEIN, State Attorney for the

Eleventh Judicial Circuit of Florida,

in and for Dade County, Florida,

Petitioner,

VS.

ROBERT PUGH and NATHANIEL HENDERSON, on their

own behalf and on behalf of all others

similarly situated, and

THOMAS TURNER and GARY FAULK on their

own behalf and on behalf of all others

similarly situated, :

Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS

BRUCE S. ROGOW

733 City National Bank Building

25 West Flagler Street

Miami, Florida

PHILIP A. HUBBART

Metropolitan Justice Building

1351 N.W. 12 Street

Miami, Florida

Counsel for Respondents

Washington, 0.C. e CLB PUBLISHERS’ e LAW PRINTING CO. e (202) 393-0625

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TABLE OF CONTENTS

SUMMARY OF ARGUMENT ................

ARGUMENT:

I. The Due Process Clause of the Fourteenth

Amendment Requires that an Arrested Per-

son, Held in Custody, be given a Prompt

Judicial Hearing to Determine if Probable

it,

_Cause Exists to Deprive Him of His Liberty

A.

The Decisions of This Court Which Pro-

hibit the Taking of Property Without a

Prior Hearing, and Prohibit the Taking of

Conditional Liberty Absent a Subsequent

Hearing, Require That the Taking of

Absolute Liberty Be Followed By a Hear-

WG Rg he ee bee ew cbse eas wee xs

The Historical Evolution of the Pre-

liminary Hearing and Its Universal

Recognition By All of the States As an

Elementary Protection Against Arbitrary

Arrest and Imprisonment Supports the

Conclusion that Such Hearings Are an

Essential Part of Due Process of Law... . .

An Information Filed by a State Attorney

Cannot Obviate the Right to an Independent

Adversarial Determination of Probable Cause.

A.

The Information Process Provides None

Of The Elements Essential To A Due Pro-

Cees Hearing. 4. oes oe swe ecsves teaea 20

The State Attorney Cannot Be The

Neutral and Detached Magistrate Re-

‘quired By The Fourth Amendment.... . .

Sees 20

(ii)

Page _

Ill. The Failure to Accord Preliminary Hearings

to all Misdemeanants, Proceeded Against by

Information or Not, Violates the Equal Pro-

tection and the Due Process Clauses of the

Fourteenth Amendment and the Fourth

Asn os ee ves es ON a oe eer fae 22

IV. The Cases Relied Upon by the State Attorney _

are not Determinative of This Case. ............ 27

A. Hurtado v. Qalifornia, 110 U.S. 516

(1884) and its Progeny Relate to Pre-

liminary Hearings Prior to Arrest, An ;

Somae Not Fyenmmted TONGG fk ook oo nc Se oe 27

B. The Several Courts of Appeal Decisions

Cited By. the State Attorney Are Not

MO: 5. 6 6s ren rea 6 her A 30

C. Rule 5(c), Federal Rules of Criminal Pro-

cedure and Title 18 U.S.C. §3060(e) Do

Wet DiS og Hi ees eccrine ses poe 3]

V. The Judgment of the District Court was a

Proper Exercise of Jurisdiction. Neither

Abstention, The Anti-Injunction Statute or

Younger v. Harris, 401 U.S. 37 (1971), Bar

ee er ea er ae 32

VI. Providing Preliminary Hearings will Promote

the Efficient Administration of Justice........... 34

CE a oo on eee tia hehe se bs < oe

CERTIFICATE OF SERVICE ......5. 04%. 2 Oe lr 36

WPPU 8a i wee oe rs Va ee pcaétews la

TABLE-OF AUTHORITIES .

Cases

_” Argersinger v. Hamlin, 407 U.S. 25(1972) .....--..--. 26

Armstrong v. Manzo, 380 U.S. 545, 552(1965) ...... 6, 12, 26

— ee

(iii)

Page

Baugus v. State, 141 So.2d 264 WE cae sock a

Beck v. Washington, 369 U.S. 541 ( I 9,27,29,30

Bell v. Burson, 402 U.S. 535 (1971) ..:..........5.-. 6,13

Board of Regents v. Roth, 408 U.S. 564 gen apie 13

Cafeteria and Restaurant Workers Union v. McElroy,

i SR Mn, ; Be Rae. apn 6) ipl mepEICE ate 13

Coleman v. Alabama, 399 U.S. 1 PF ei a 7,19,35

Coolidge v. New Hampshire, 403 U.S. 443 i Passim

Frontiero v. Richardson, We. 79S Se ee

C1973) sre, ee ero ety eee es 9,24

Fuentes v. Shevin, 407 U:S. 67 ( ae er ee 6,10,12,33

Gagnon v. Scarpelli, U.S. ,93 S.Ct. 1756 (1973). 6,8,15,20

Goldberg v. Kelly, 397 U.S. 254(1970) ........ 6,8,13,15,20

Grannis v. Ordean, 234 U.S. 385 a... 6,8,12;23 ©

Hurtado v. California, 110 U.S. 516 ao ee er 9,27,30

Joint Anti-Fascist Refugee Committee v. McGrath,

Ol OS TICS ios hk ck Me re Sea 16,20

Lake Carriers Association v. MacMullan, 406 U.S. 498

idd. Ree CPO SS wi ee Le ee eee 10,32

Lem Woom v. Oregon, 229 U.S. 586(1913) ...... 9,27,28,30

McGowan v. Maryland, 366 U.S. 420 BROOED sv dic ceec, pia

McNabb v. United States, 318 U.S: 332 REPOPE nn oi ees 7,29

Meyer v. Nebraska, 262 U.S. 390(1923).............. 13

Mitchum v. Foster, 407 U.S. 225 es: oo rac ic 10

Morrissey v. Brewer, 408 U.S. 471 ( SPE ie Wie ska passim

Murray v. Hoboken Land Co., 59 U.S. (18 Howard)

OIE ONO re ciety Oe esl. 7,15

Ocampo v. United States, 234 U.S. 91 (1914) ..... 9,27,29,30

Palko v. Connecticut, 302 U.S. 319 CU Tes. cs is xa, 16

Pointer v. Texas, 380 U.S. 400 ( SOMO 6% 505s 7,19

Rochin v. California, 342 U.S. 165 (1 Ln EE pee ae 7,16

POR NM

PG OR AOE I I NS EE Tn! ag NN EEO TON EM cence

(iv)

Reev. Waele, US. ..FOGAR. Mesa). cc sce 5,8,23,26

Sangaree v. Hamlin, 235 So.2d 729 (Fla. 1970) .......... 3

Shadwick v. City of Tampa, 407 U.S. 345 (1971) ...... 822,29

Shapiro v. Thompson, 394 U.S. 618 (1969). ........... 8,23

Sibron v. New York, 392 U.S. 40 (1968) .............. 5

Sniadach v. Family Finance Corporation, 395 US.

I ne es oe a ks en ee ee 6,13

Southern Pacific Terminal Co. v. ICC,, 219 U.S. 498

(2 8) Se 5

Stanley v. Illinois, 405 U.S. 645 (1972) .............. 6,13

State Ex Rel. Hardy v. Blount, 261 So. 2d 172 (Fla.

SE ck we es a he eo wos oe 3,10,12,33

Twining v. New Jersey, 211 U.S. 78 (1908) ............. 15

Thies v. State, 178 Wis. 98, 189 N.W. 539 (1922) ......... 19

United States v. Burr, 25 Fed. Cas. 2 (C.C.A. Va.

ss cS ens wo eek ens 7,17

Younger v. Harris, 401 U.S. 37 (1971).......... 10,11,32,33

Widener v. Croft, 184 So. 2d 444 (Fla. 1966) ........... 33

Wisconsin v. Constantineau 400 U.S. 433 (1972) ........ 6,13

Wolf v. Colorado, 338 U.S. 25 (1949) ........ ccc ccke 23

Constitutional Provisions

United States Constitution, Amendment XIV ........... 14

Statutory Provisions

pe er 10,31

pe re ee ee 32

NS IS, i ee 10,32

pe ree ree 10

Rules

Federal Rules of Criminal Procedure, RuleS ........... 10,31

Federal Rules of Criminal Procedure, Rule7 ............ 31

i ee i a te SS ne ee ee ee

A ARE IORI) Araaert wa agkt

(v)

_Page_

Florida Rules of Criminal Procedure, Rule 3.131(a) 5,10,1 2,22,33

Florida Rules of Criminal Procedure, Rule 3.131(b) .... 5,12,25

Florida Rules of Criminal Procedure, Rule Pay 4, a, 25

Florida Rules of Criminal Procedure, Rule 3.040 ......_. 25

Other Authorities

41 Am. Jur.2d “Indictments and Informations”

(1968) Se mnie oe LL Oe ee eee ee.

_ Comment, The Preliminary Hearing — An Interest

Analysis, 51 lowa L.Rev. sds tee age CE EVER es 16

Comment, 7he Preliminary Examination — Evidence

and Due Process, 15 Kan. L.Rev. wre) «so 14

Goldfarb, Ransom, Harper and Row, New York

hie Me AS eee ee 32

Holdsworth, A History of English Law (3d Ed. 1945) .... 7,16

Katz, Justice is the Crime, Pre-Trial Delay in Felony

Cases, The Press of Case Western Reserve Univer-

sity, Cleveland and London (1972) ............_. 2,17,35

Maitland, The Constitutional History of England

Oe a. 17

Melntyre and Lippman, Prosecutors and Early Dis-

Position of Felony Cases, 56 A.B.A.J.(1970) ........ 11,34

Paulsen and Kadish, Criminal Law and Its Processes,

Little Brown and Co. Le ts See ee EES Ee Ee 34

Plunkett, A Concise History of the Common Law,

(Sth Ed. 1956) EN eee ei ce ce,

Report on Courts, National Advisory Commission on

Criminal Justice Standards and Goals, Standard

Winwing ee i i ar as 35

Report on Police, National Advisory Commission on

Criminal Justice Standards and Goals, Standard

ee 25

Ee RRM,

il ak gcse

a ee ee

eee es

(vi)

| Page |

Scott, Criminal Law in Colonial Virginia, Univ. of

Chicago Press, Chicago (1930) ................. 7,17

Smith, Colonial Justice in Western Massachusetts,

Harvard Univ. Press, Boston (1961) .......... e..- 7,17

Stephen, Select Essays in Anglo-American Legal

Hs FR BUENO: 6 oo 5 PR a ewer es 16

4 Wharton’s Criminal Law and Procedure, §1731

ROU ev ote nak td oe eae ue ees vee

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1973

No. 73-477

RICHARD E. GERSTEIN, State Attorney for

the Eleventh Judicial Circuit of Florida,

in and for Dade County, es

Petitioner,

Vv.

ROBERT PUGH and NATHANIEL HENDERSON, on

their own behalf and on behalf of all

others similarly situated, and

THOMAS TURNER and GARY FAULK, on their ©

own behalf and on behalf of all

others similar situated,

2 Respondents.

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR RESPONDENTS

OPINIONS BELOW

The original opinion of the United States District

Court for the Southern District of Florida is reported at

332 F.Supp. 1107 (S.D. Fla. 1971). The Order adopting a

plan to implement the original opinion is reported at 336

F.Supp. 490 (S.D. Fla. 1972). The District Court find-

ings, requested by the Court of Appeals after oral argu-

ment are reported at. 355 F.Supp. 1286 (S.D. Fla. 1973).

The opinion of the United States Court of Appeals for

the Fifth Circuit is reported at 483 F.2d 778 (Sth Cir.

1973).

i ab: 4

sels COE IER LPG

2

STATEMENT OF THE CASE

This case focuses upon the question of whether an

arrested person, held in custody, has a Fourteenth

Amendment due process right to a prompt judicial hear-

ing to determine if probable cause exists to deprive him

of his liberty. It also presents the question of whether an

information, filed by a State Attorney, obviates that

right.

The case does not involve persons arrested upon indict-

ments returned by a grand jury. Therefore the night toa

probable cause hearing after indictment is not presented.

The Attorney General of Florida, in his amicus curiae

brief, has invited this Court to reach that question. He

has suggested that there is ‘“‘no difference in fact or sub-

stance’’ between informations and indictments and that a

grand jury is merely the alter ego of a state attorney

(Amicus Curiae Brief of the State of Florida, pp. 4-5).

That concession may be true. But this case does not

require consideration of the problem. Thus the brief deals

only with the rights of persons arrested upon some basis

other than a grand jury indictment.

It must be emphasized that the respondents do not

seek to declare unconstitutional or enjoin the use of

informations per se. As a speedy method of screening and

initiating charges, the information may be a useful! tool.'

The respondents merely assert that there must be a

juducial determination of probable cause even if an in-

formation is filed, because a state attorney cannot,

consistent with the Fourteenth and Fourth Amendments;

determine probable cause in an ex parte proceeding. It is

' Katz, Justice is the Crime, Pretrial Delay in Felony Cases, The

Press of Case Western Reserve University, Cleveland and London

(1972), pp. 105-106.

ce ee

3

, that which the State Attorney has unsuccessfully

opposed throughout this litigation.

The petitioners’ Statement of the Case is essentially

correct. However, a difference in emphasis necessitates a

restatement by the respondents. 2

The case commenced on March 22, 1971 when Robert

Pugh and Nathaniel Henderson filed a class action suit in

the United States District Court for the Southern District

of Florida against various Dade County, Florida public

officials, including State Attorney Richard Gerstein. Pugh

and Henderson were incarcerated in the Dade County Jail

upon informations filed by the State Attorney. They

sought a judicial hearing to determine probable cause for

their detention (App. 3). Florida law forbade them such a

hearing. Sangaree v. Hamlin, 235 So.2d 729 (Fla. 1970),

Baugus v. State, 141 So.2d 264 (Fla. 1962). That rule

persists today. Rule 3.131(a), Florida Rules of Criminal

Procedure, State ex. rel. Hardy v. Blount, 261 So.2d 172

(Fla. 1972).

The plight of Pugh and Henderson was typical. In-

carcerated defendants proceeded against by information

often waited in jail for a month or more before they were

even arraigned. That time was consumed by a process

described by James Regan, the Administrative Assistant

to the State Attorney (App. 44-60).

Mr. Regan testified that one day to two weeks or more

after a police officer made an arrest, the officer would

present himself to the State Attorney’s office to file an

information. (App. 47). Within one to three working

days, the assistant state attorney who took the com-

plaint, prepared it, processed it, and then it was signed by

the State Attorney or one of his assistants. (App. 50).

Thereafter the information was filed with the clerk of the

SN IEICE AP AR CONTI ALE NIN BAe LI, A Ea SARA IG eT a eRe

F

court, who assigned it to a judge so that the case could be

calendared. That process took from one to seven days.

(App. 56). On the “‘average”’, ten to fifteen days elapsed

between the time the complaining party appeared in the

State Attorney’s office and the defendant appeared in

court. (App. 57). Added to that period was the time it

took for the complainant to go to the State Attorney’s

office (one day to two weeks or more [App. 471] ). Thus,

in excess of a month sometimes passed from arrest to

arraignment. During that time no judicial inquiry was

conducted to determine if probable cause existed for the

person’s detention. Indeed, no such opportunity existed

until trial.

Some of the charges presented to the State Attorney’s

office were deficient and he declined to prosecute them

(App. 45). Between January 1, 1970 and March 31,

_ 1971, the State Attorney’s office determined that 1165

charges were unwarranted and these were ‘“‘no actioned”

‘(App. 45). The “‘no actions” occurred only after the com-

plainant (usually police officers) appeared before an

assistant state attorney (App. 45).

Upon those facts the District Court issued its original

opinion and final judgment declaring unconstitutional the

Fiorida practice of denying a judicial determination of

probable cause to persons proceeded against by informa-

tion (App. 70-87; Pugh v. Rainwater, 332 F.Supp. 1107

[1971]). The Court asked for the submission of plans to

provide preliminary hearings and adopted the only one

suggested, a plan proposed by the Director of Public

Safety of Dade County. (App. 88-96; Pugh v. Rainwater,

336 F.Supp. 490 [1972]). The State Attorney appealed

to the Fifth Circuit.?

It is interesting to note that the Attorney General of Florida,

who appears here as Amicus Curiae, did not appeal. In fact, the

Attorney General, representing several defendant judges, asked that

they be permitted to become plaintiffs on the matter of pre-

liminary hearings because they agreed that those hearings were

commanded by the Constitution. (App. 63-64; 67).

s)

Shortly thereafter, the judges of Dade County

implemented their own plan to provide preliminary hear-

ings for persons not charged by information. The State

Attorney of course retained his power under Florida law

to obviate the hearings if he chose to fiie an information.

After oral argument in the Fifth Circuit, the Court of

Appeals requested the District Court to review the

practices under the system implemented by the judges in

Dade County to determine if constitutional infirmities

still existed (App. 97-98).

Before the District Court could do that, the Florida

Supreme Court Promulgated Amended Rules of Criminal

Procedure which contained, among other things, many of

the requirements set out in the plan which the District

Court had previously ordered implemented (App.

101-102). But those Amended Rules once again made

clear that persons proceeded against by information filed

by the State Attorney were not entitled to a preliminary

hearing. Rule 3.131(a), Florida Rules of Criminal Pro-

cedure. The Rules totally excluded misdemeanants from

preliminary hearings and permitted delayed preliminary

hearings for those charged with offenses punishable by

death or life imprisonment.’ Rule 3.131(b), Florida

Rules of Criminal Procedure.

*Pugh was charged with robbery, an offense punishable by life

imprisonment. Henderson was charged with assault and battery, a

misdemeanor. Although Pugh and Henderson no longer can benefit

from. a decision in this case (they have been convicted), a con-

troversy remains because of the class action nature of the suit and

the fact that the issue presented is an important constitutional

question in the “low visibility” of the criminal process, Sibron vy.

New York, 392 U.S. 40, 52-53 (1968), which is “capable of repeti-

tion, yet evading review.” Southern Pacific Terminal Co. v. ICC.

219 U.S. 498 (1911); Roe v. Wade, 93 S.Ct. 705, 713 (1973).

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The parties stipulated that the District Court re-assess-

ment should also include the effect of the Amended

Rules upon the plaintiffs’ class (App. 103). After an

evidentiary hearing the District Court found once again

that permitting the State Attorney to obviate a pre-

liminary hearing violated the Due Process Clause of the

Fourteenth Amendment and the Fourth Amendment.

The District Court also concluded that the exclusion of

misdemeanants and the delayed hearings for capital or

life imprisonment offenses ran afoul of the Due Process

and Equal Protection Clauses of the Fourteenth Amend-

ment and the Fourth Amendment (App. 99-114, 115,

355 F.Supp. 1286 [1973] ).

The Fifth Circuit affirmed, Pugh v. Rainwater, 483

F.2d 778 (1973). This Court granted certiorari.

SUMMARY OF ARGUMENT

I. A. The fundamental requisite of due process of law

‘is “‘the opportunity to be heard.” Grannis v. Ordean, 234

U.S. 385, 394 (1914). That opportunity “must be

granted at a meaningful time and in a meaningful’

manner.” Armstrong v. Manzo, 380 U.S. 545, 552

(1965).

A due process hearing is required prior to the taking of

property. Fuentes v. Shevin, 407 U:S. 67 (1972); Stanley

v. Illinois, 405 U.S. 645 (1972); Bell v. Burson, 402 U.S.

535 (1971); Wisconsin v. Constantineau, 400 U.S. 433

(1971); Goldberg v.- Kelly, 397 U.S. 254 (1970);

Sniadach v. Family Finance Corporation, 395 U.S. 337

(1969). A parolee, or probationer, convicted of a crime,

is entitled to a hearing if the state seeks to revoke his

conditional liberty. Morrissey v. Brewer, 408 U.S. 471

(1973). Gagnon v. Scorpelli, __ U.S. __, 93 S.Ct. 1756

(1973).

Therefore a person arrested and incarceratéd, who is

presumed to be innocent, must be accorded a hearing

before a judicial officer as soon as possible after his arrest

Beau A sista i

7

to determine whether probable cause exists to deprive the

arrestee of his absolute liberty. The failure to accord such

a hearing deprives a person of liberty without due process

of law in violation of the Fourteenth Amendment.

B. The historical evolution of the preliminary hearing

process and its nearly universal use by the states supports

the proposition that such hearings are required by the

Constitution. Due process is an evolving concept. Rochin

v. California, 342 U.S. 165 (1952). The Court looks to

the history of a practice and its utilization to determine

its constitutional necessity. Murray v. Hoboken Land Co.,

59 U.S. (18 Howard) 272, 276-277 (1855). Preliminary

examinations were used in England in the Twelfth

Century and codified in the Sixteenth Century. 1

Holdsworth, A History of English Law (3d Ed. 1945): Id.

4 Holdsworth 529. The practice was followed in America

before and after the revolution. Scott, Criminal Law in

Colonial Virginia, 55-58 Univ. of Chicago Press, Chicago

(1930). Smith, Colonial Justice in Western Massachusetts,

153-154, Harvard University Press, Boston (1961). In

1807 Chief Justice Marshall conducted the forerunner of

the modern preliminary hearing, conducting an inquiry to

determine if the charge of treason against Aaron Burr was

supported by probable cause. United States y. Burr, 25

Fed. Cas. 2, 12, (No. 14692a) (C.C.A. Va. 1807). Today

all states provide for preliminary hearings after arrest

(See, McNabb vy. United States, 318 U.S. 332, 342 (1943)

and Appendix, intra). But in Florida, such a hearing is

precluded if an information is filed.

This Court has extended the right to counsel and the

right to cross examination to preliminary hearings.

Coleman v. Alabama, 399 US. | (1970); Pointer vy,

Texas, 380 U.S. 400 (1965). Those rights have no value

to a person who is denied the hearing itself. Due process

requires that after a person is deprived of his liberty, he

must be accorded a preliminary hearing to determine if

probable cause exists,

i ARENAS SIAN oi sve RRO IPE aa RAT Ab ac ail os Ae ena ee |

8

II. A. An information filed by a state attorney

' cannot obviate the right to a probable cause hearing

because the information process provides none of the

_ elements which, constitute a due’ process hearing. A

hearing under the due process clause includes the right to

notice of the charge, the right to confront and cross

_ examine witnesses, the right to be heard in one’s own

defense and the right to be heard by a neutral and

detached person. Morrissey v. Brewer, 408 U.S. 471, 489

(1972); Gagnon v.-Scarpelli,_-s—~aU.S. —, 93. S.Ct. 1756,

1761-1762 (1973); Goldberg v. Kelly, 397 US. 254,

267-268 (1970). The determination of probable cause

made by the process of filing an information contains

none of those elements and consequently is violative of

the due process clause of the Fourteenth Amendment.

B. The Fourth Amendment commands that probable

cause for an arrest be determined by a “neutral and

detached” magistrate. Shadwick v. City of Tampa, 407

U.S. 345, 350 (1971). A state attorney, who is a

prosecutor, is not a neutral and detached magistrate.

Coolidge v. New Hampshire, 403 U.S. 443, 450, 453

(1970). Thus the State Attorney. cannot be the sole

arbiter of probable cause for arrest and detention.

III. The failure to accord preliminary hearings to all

incarcerated misdemeanants, proceeded against by infor-

mation or not, violates the equal protection clause, the

due process clause and the Fourth Amendment. The total

exclusion of misdemeanants from the opportunity for a

preliminary hearing constitutes a classification which is

arbitrary, irrational and without any compelling justifica-

tion. The due process right to be heard is a fundamental

right. Grannis v. Ordean, 234 U.S. 385 (1914). In order

to justify a classification affecting a fundamental right,

the state must show a “compelling interest.” Roe y.

Wade, _ _ U.S. _, 93 S.Ct. 705, 728 (1973); Shapiro v.

Thompson, 394 U.S. 618, 634 (1969). The State has not

LB 6 TM SEIT D &

9

attempted to show such an interest. Nor has the State

presented any rational basis for the classification. Thus

under either test for equal protection, the classification

imposed upon misdemeanants must fall under the Four-

teenth Amendment’s prohibition against classifications

which cannot be justified. Frontiero v. Richardson, _

US. _, 93 S.Ct. 1764 (1973).

The denial of preliminary hearings to all incarcerated

misdemeanants held upon informations or police arrests

also violates the due process clause and the Fourth

Amendment. Morrissey v. Brewer, 408 U.S. 471 (1973),

Coolidge v. New Hampshire, 403 U.S. 443 (1970).

IV. A. The State Attorney’s reliance upon Hurtado v.

California, 110 U.S. 516 (1884); Lem Woom vy. Oregon,

229 U.S. 586 (1913) and Ocampo v. United States, 234

U.S. 91 (1914) is misplaced. Those cases permit prosecu-

tions to be initiated by information without prior judicial

determination of probable cause. Here subsequent det :r-

minations of probable cause are sought. The State

Attorney’s attempt to impute approval. in Beck vy.

Washington, 369 U.S. 541 (1962), for the denial of

subsequent probable cause hearings is without founda-

tion. The issue of probable cause hearings was not present

in Beck, The Court’s comment approving informations

filed “without even a prior judicial determination of

probable cause” /d. 369 U.S. at 545, is merely a

reaffirmation of Ocampo and Lem Woom. In no case has

this Court approved the use of an information without a

subsequent judicial determination of probable cause.

B. The State Attorney’s reliance upon various Courts

of Appeal decisions which hold that due process does not

mandate preliminary hearings is equally misplaced. (Peti-

tioner’s Brief, pp. 16-17). Those cases contend with the

argument that an otherwise valid conviction is vitiated by

the denial of a preliminary hearing. This case makes no

such argument. Thus those cases are not applicable to the

limited assertion made here.

10

C. The fact that an information obviates the right to a

preliminary hearing under Rule 5 of the Federal Rules of

Criminal Procedure and Title 18 U.S.C. §3060(e) is not

determinative of this case. The State and State Attorney

erroneously contend that the mere existence of a federal

rule and statute supports the maintenance of a constitu-

tionally ,defective state practice. If the Florida practice

does defy the Constitution, then the federal practice

would share the infirmity. But even if the constitutional

precedent lent itself to application to the federal system,

it would have little practical impact because informations

have limited use in federal prosecutions. Rule 7(a),

Federal Rules of Criminal Procedure.

V. Neither abstention, the anti-injunction statute

(Title 28 U.S.C. §2283) or Younger v. Harris, 401 U.S.

37 (1971) bar the relief: granted by the Court of Appeals. |

This case presents no question of state law which could

be construed by the Florida courts to avoid the federal

constitutional issues. Consequently abstention is no bar.

Lake Carriers Association v. MacMullan, 406 U.S. 498,

511 (1972). Since this is a suit under Title 42 U.S.C.

§1983, the anti-injunction statute (Title 28 U.S.C.

§2283) is no barrier. Mitchum yv. Foster, 407 U.S. 225

(1972). The plaintiffs have never sought to interfere with

or enjoin any pending or future court proceedings. They

seek only a pre-trial procedural right. The granting of

such a right does not run afoul of the comity principles

of Younger v. Harris. Cf. Fuentes v. Shevin, 407 U.S. 67,

71,n. 3 (1971).

Even if Younger v. Harris were applicable, this case

would be an exception to it. A deprivation of liberty

constitutes great and immediate irreparable injury. That

injury cannot be redressed in the Florida courts in any

proceeding because of their adamant support of the

practice which causes the deprivation of liberty. State ex

rel. Hardy vy. Blount, 261 So.2d 172 (Fla. 1972), Rule

<n fs. "

11

3.131(a), Florida Rules of Criminal Procedure. Such a

situation constitutes an exception to Younger v. Harris,

401 U.S. 37, 46 (1972).

VI. Preliminary hearings for all incarcerated arrestees

will enhance the administration of criminal justice. In this —

case, felony caseloads were reduced by -twenty to

twenty-five percent when preliminary hearings were

utilized (App. 109). An American Bar Foundation study

estimated that the clearance rate for felonies at the -

preliminary hearing stage was eighty percent in Chicago

and sixty-five percent in Brooklyn, New York. McIntyre

and Lippman, Prosecutors and Early Disposition of

Felony Cases, 56 A.B.A.J. 1154, 1156 (1970). Other

studies reflect similar results. Early resolution of felony

and misdemeanor charges is _ Promoted by a speedy

preliminary hearing offering both sides an opportunity to

assess the strength or weakness of the case and agree to a

plea. The experience in Dade County, Florida shows that

early resolution also reduces costs for jail maintenance

(App. 109). Thus providing preliminary hearings will

better serve both governmental and private interests.

ARGUMENT

I.

THE DUE PROCESS CLAUSE OF THE FOUR-

TEENTH AMENDMENT REQUIRES THAT AN

ARRESTED PERSON, HELD IN CUSTODY, BE

GIVEN A PROMPT JUDICIAL HEARING TO

DETERMINE IF PROBABLE CAUSE EXISTS TO

DEPRIVE HIM OF HIS LIBERTY,

A. The Decisions of This Court Which Prohibit

the Taking of Property Without a Prior Hear-

ing, and Prohibit the Taking of Conditional

Liberty Absent a Subsequent Hearing, Require

That the Taking of Absolute Liberty Be Fol-

lowed By a Hearing.

Florida law denies preliminary hearings after arrest to

persons proceeded against by an information filed by a

GAAS EO TE EI

12

state attorney. Rule 3.131(a), Florida Rules of Criminal

Procedure, State ex rel. Hardy v. Blount, 261 So.2d 172

(Fla. 1972).* All misdemeanants, no matter how their

prosecution is begun, are denied preliminary hearings.

: Rule 3.131(a), Florida Rules of Criminal Procedure.®

The Fourteenth Amendment provides that no state

shall “*. .. deprive any person of life, liberty, or property,

without due process of law ...” In Armstrong v. Manzo,

380 U.S. 545 (1965) this Court wrote:

A fundamental requirement of due process is ‘the

opportunity to be heard.’ Grannis v. Ordean, 234

U.S. 385, 394. It is an opportunity which must be

*That decision leaves no doubt that the prosecutor alone can

determine probable cause without any hearing:

When a prosecuting attorney files an information against a

defendant, he conclusively determines that the evidence is

adequate to establish probable cause to put the defendant on

trial.

State ex rel. Hardy v. Blount, 261 So.2d at 174.

On February 4, !974, the Ficrida Supreme Court amended

Rule 3.131(b) of the Florida Rules of Criminal Procedure. extend-

ing the time for a state attorney to file an information and deter-

mine probable cause so that he would be better able to prevent

preliminary hearings (Appendix to Brief, p. 4). If the prosecutor

does not file an information in time to deprive 4 person of a

preliminary hearing, and a judicial officer conducts one and finds

no probable cause, the State Attorney can overrule that decision:

. even if a defendant were granted a preliminary hearing

and the committing magistrate discharged the defendant for

lack of probable cause, the prosecuting attorney could never-

theless determine that probable cause exists and file an intor-

mation charging the defendant with the compgssion of the .

offense. A

State ex rel. Hardy v. Blount, 261 So.2d at 174.

SThe Rule supercedes Florida Statutes § §901.06 and 901.25

which required all persons arrested with or without a warrant to be

brought before a magistrate. Those statutes were repealed. 2 West's

Florida Session Laws, 1973, Chap. 73-27. Consequently Ruie

3.131(a) and State ex rel Hardy v. Blount form the foundation of

this controversy.

Se eee ae a = -

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13

granted at a meaningful time and in a meaningful

manner.

Id. 380 U.S. at 552.

Due process has been held to require a hearing prior to

the taking of one’s property. Fuentes v. Shevin, 407 U.S.

67 (1972); Stanley y. Illinois, 405 U.S. 645 (1972); Bell

v. Burson, 402 U.S. 535 (1971); Wisconsin vy. Con-

stantineau, 400 U.S. 433 (1971); Goldberg v. Kelly, 397

U.S. 254 (1970); Sniadach v. Family Finance Corpora-

tion, 395 U.S. 337 (1969).

The hearing sought in this case is a subsequent one: a

probable cause determination made promptly after arrest.

That request is consistent with the concept of flexibility

inherent in due process.

Consideration of what procedures due process may

require under any given set of circumstances must

begin with a determination of the precise nature of

the government function involved as well as of the

private interest that has been affected by govern-

mental action.

Cafeteria & Restaurant Workers Union y. McElroy,

367 U.S. 886, 895 (1961).

The government function involved here is the State’s

duty to charge and arrest persons suspected of the

commission of a crime. An adversary hearing prior to the

exercise of that function might undermine the State’s

ability to’ apprehend a suspect; The accommodation

which the plaintiffs urge—a prompt hearing subsequent to

arrest—protects the government interest and the private

interest, the fundamental right to absolute liberty.®

°There can be no quarrel over the essential nature of that right

under the Constitution. In Board of Regents v. Roth, 408 U.S. 564

(1973) the Court, speaking of the liberty guaranteed by the

Fourthteenth Amendment, wrote:

Without doubt, it denotes . . . freedom from bodily restraint.

Id. 408 U.S. at 572, quoting Meyer v. Nebraska, 262 US.

390, 399 (1923).

Thatta craaewag

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14

Recently the Court has mandated similar hearings for

persons whose liberty, because of conviction for a crime, |

was conditional. In Morrissey v. Brewer, 408 U.S. 471

(1972) the Court stated:

We see therefore, that the liberty of a parolee,

although indeterminate, includes many of the core

values of unqualified liberty and its termination

inflicts a ‘grievous loss’ on the parolee and often on

others. It is hardly useful any longer to try to deal

with this problem in terms of whether the parolee’s

liberty is a ‘right’ or a ‘privilege’. By whatever name,

the liberty is valuable and must be seen as within the

protection of the Fourteenth Amendment.

Id. 408 U.S. at 482.

The Court provided the protection by requiring a rapid

hearing:

... due process would seem to require that some

minimal inquiry be conducted at or reasonably near

The Amicus Curiae Brief of thie Attorney General misapprehends |

the right respondents seek to protect. The Attorney General con-

tends that the Florida Rules of Criminal Procedure which permit

pre-trial discovery and require a speedy trial guard the rights of a

defendant. But it is not the right to a fair or speedy trial which is

lost by the denial of a preliminary hearing. It is the right to liberty

for those improperly incarcerated which is irretrievably denied. It

is small consolation for an innocent jailee that his lawyer may take

depositions or that he must be tried within 60 days. One com-

mentator has said:

Although the preliminary examination is not a trial in the

ordinary sense, it can have a profound effect on the indi-

vidual involved. While beiig bound over for trial is often

regarded as insignificant by judges and writers, it may result

in three to six months incarceration, the degradation and

expense of a criminal trial and irreparable harm to the

accused’s reputation, regardless of the ultimate outcome at

the subsequent trial. Comment, The Preliminary t.xamina-

tion-Evidence and Due Process, 15 Kan. L. Rev. 374-376

(1967) (footnotes omitted).

15

the place of the alleged parole violation or arrest and

as promptly as convenient after arrest while infor-

mation is fresh and sources are available. Cf. Hyser -

v. Reed, 115 U.S. App. D.C. 254, 318 F.2d 225

(1963). Such an inquiry should be seen as in the

nature of a ‘preliminary hearing’ to determine

whether there is probable cause or reasonable

ground to believe that the arrested parolee has

committed acts that would constitute a violation of

parole conditions. Cf. Goldberg v. Kelly, 397 U.S. at

267-271.

Id. 408 U.S. at 485.

Gagnon v. Scarpelli, ___ US. ae at, 1796,

1759-1760 (1973) accorded similar protection to the

termination of the conditional freedom of probationers.

Persons arrested and detained upon a police officer’s

suspicion of probable cause and a state attorney’s

information are deprived of their absolute right to

liberty. They are presumed to be innocent. Due process

compels the conclusion that they are entitled to a hearing

after arrest to determine whether they have committed

acts which justify the taking of their liberty.

B. The Historical Evolution of the - Preliminary

Hearing and Its Universal Recognition By All

of the States As an Elementary Protection

Against Arbitrary Arrest and Imprisonment

Supports the Conclusion That Such Hearings

Are an Essential Part of Due Process of Law.

This Court has long held that in determining whether a

given procedure is an essential part of due process of law,

it must look to the _ historical development of the

procedure both in England and America. Murray y.

Hoboken Land Co., 59 U.S. (18 Howard) 272, 276-277

(1855); Twining v. New Jersey, 211 U.S. 78, 100 (1908).

Due process by its very nature is an evolving concept

which cannot be fixed in the confines of a single formula

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and expresses in its deepest sense our civilization’s

revulsion against arbitrary governmental action. Rochin v.

California, 342 U.S. 165 (1952); Joint Anti-Facist

Refugee Committee v. McGrath, 341 U.S. 123, 162

(1951) (Frankfurter, J. concurring); Palko v. Connecti-

cut, 302 U.S. 319 (1937).

The practice of according prompt preliminary hearings

to persons accused of crime has a long history. Indeed,

“the preliminary hearing is an ancient institution,”

Coleman v. Alabama, 399 U.S. 1, 22 (Burger, C.J.,

dissenting) with roots in the common law. It was first

used in England by the Crown’s coronors, probably as

early as the Twelfth Century, to conduct inquests into

unnatural deaths. Comment, “‘The Preliminary Hearing

— An Interest Analysis”, 51 Iowa L. Rev. 64, 65 (1965):

1 Holdsworth, A History of English Law 82-85 (3d Ed.

1945).” In 1554 and 1555 Parliament passed the Statutes

of Philip and Mary which required coronors and justices

of the peace to conduct preliminary examinations in all

felony cases. 1 Holdsworth 84; 4 Holdsworth 296. It is

probable that these statutes gave legal sanction to

practices which existed earlier without express statutory

authority. Stephen, “‘Criminal Procedure From the Thir-

teenth to the Eighteenth Century” Vol. 2 Select Essays in

Anglo-American Legal History, 459 (1968).

Although these early preliminary examinations were

. inquisitional in nature patterned after continental prac-

tices, 1 Holdsworth 296; 4 Holdsworth 528-529, they

contained some of the .characteristics of the modern

preliminary hearing. Witnesses were required to appear

before the magistrate to give testimony under oath which

was later reduced to writing. Plunkett, A Concise History

of the Common Law 432 (5th Ed. 1956). If a sufficient

case was developed at the examination, the accused and

witnesses were bound over for trial. | Holdsworth 84-85,

7 Cited hereafter as “Holdsworth”.

Ph NINE Be eas

17

296, otherwise the case presumably ended. The magis-

trate’s preliminary examination was designed to check

various abuses of governmental power by the local

sheriff, whose power the Crown viewed with suspicion.®

Gradually, with the development of a professional

police force, the preliminary hearing evolved into an

impartial, judicial inquiry. The magistrate became neutral

-and detached from the prosecution. The accused was

accorded the rights of counsel, privilege against self-

incrimination and compulsory process of witnesses. The

function of the magistrate was no longer to investigate

crime, but to impartially determine whether the prosecu-

tion had developed sufficient evidence against the

accused to warrant a trial. 1 Holdsworth 296-297.

The basic preliminary hearing practice of England was

followed in America both before and after the Revolu-

tion. Scott, Criminal Law in Colonial Virginia 55-58

Univ. of Chicago Press, Chicago (1930): Smith, Colonial

Justice in Western Massachusetts 153-154, Harvard Univ.

Press, Boston® (1961). In 1807 Chief Justice John

Marshall conducted the equivalent of a modern pre-

liminary hearing .on charges of treason against Aaron

Burr. United States v. Burr, 25 Fed. Cas. 2, 12 (No.

14692a) (C.C.A. Va. 1807). Marshall delivered an opinion

which established ‘the prevailing law in America on

preliminary hearings:

On an application of this kind, I certainly should

not require that proof which would be necessary to

convict the person to be committed, on a trial in

*Katz, Justice is The Crime — Pre-Trial Delay in Felony Cases,

22-23, The Press of Case Western Reserve, London and Cleveland

(1972). In the Twelfth Century the sheriff was “little less than a

provincial viceroy” controlling all police, justice, fiscal and military

matters in his local district. Maitland, The Constitutional History

of England 232-233 (191). The magistrates supplanted the

sheriff's functions relating to arrest, bail and trial of accused per-

sons. /d. 232.

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18

chief; nor should I even require that which should

absolutely convince my own mind of the guilt of the

accused: but I ought to require, and | should

require, that probable cause be shown; and I

understand probable cause to be a case made out by

proof furnishing good reason to believe that the

crime alleged has been committed by the person

charged with having committed it. I think this

opinion entirely reconcilable with that quoted from

Judge Blackstone. When that learned and accurate

commentator says, that ‘if upon an inquiry it

manifestly appears that no such crime has been |

committed, or that the suspicion entertained of the :

prisoner was wholly groundless, in such cases only it

is lawful totally to discharge him, otherwise he must

be committed to prison or give bail,’ I do not

understand him as meaning to say that the hand of

malignity may grasp any individual against whom its

hate may: be directed, or whom it may capriciously

seize, charge him with some secret crime, and put

him on the proof of his innocence. But I understand

that the foundation of the proceeding must be a

probable cause to believe there is guilt; which

probable cause is only to be done away in the

manner stated by Blackstone. The total failure of

proof on the part of the accuser would be con-

sidered by that writer as being in itself a legal

manifestation of the innocence of the accused. In

inquiring, therefore, into the charges exhibited

against Aaron Burr, I hold myself bound to consider

how far those charges are supported by rfrobable

cause. ‘

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Today every state has rules, statutes or constitutional

provisions which contemplate preliminary hearings.’ In }

most of the states which authorize prosecutions by

information, the prosecuting attorney may file an infor-

mation “only after the defendant has been accorded the

°The Appendix to this Brief contains a state by state analysis of

those provisions.

19 ;

right to a preliminary examination, unless he waives such

examination and then only when he has been held for

trial....” 4 Wharton’s Criminal Law and Procedure

§1731, p. 517 (Anderson 1957); 41 Am.Jur.2d “Indict-

ments and Informations” §20, p. 892 (1968). Florida,

and a few other states’® permit an information to vitiate

the right to a preliminary hearing.

That practice emasculates the historic reason for the

hearing:

The object or purpose of the preliminary [hearing]

is to prevent hasty, malicious, improvident, and

oppressive prosecutions, to protect the person

charged from open and public accusations of crime,

to avoid both for the defendant and the public the

expense of a public trial, and to save the defendant

from the humiliation and anxiety involved in public

prosecution, and to discover whether or not there

are substantial grounds upon which a prosecution

may be based.

Thies v. State, 178 Wis. 98, 189 N.W. 539, 541

(1922).

This Court has recognized the critical nature of pre-

liminary hearings. Defendants facing such hearings have

been guaranteed the right to confront and cross examine

witnesses, Pointer v. Texas, 380 U.S. 400 (1965), and the

right to counsel, Coleman v. Alabama, 399 U.S. 1 (1970).

Those rights have no meaning to a person denied the

hearing itself.

Mr. Justice Frankfurter wrote:

‘due process,’ unlike some legal rules, is not a

technical conception with a fixed content unrelated

to time, place and circumstances. Expressing as it

does in its ultimate analysis respect enforced by law

for that feeling of just treatment which has been

According to Petitioners’ Brief: Connecticut, Arkansas,

Wyoming, Montana, Iowa and Washington share the Florida

practice. (Brief of Petitioner, pp. 13-14).

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evolved through centuries of Anglo-American con-

stitutional history and civilization, ‘due process’

cannot be imprisoned within the treacherous limits

of any formula. Representing a profound attitude of

fairness between man and man, and more particu-

larly between the individual and government, ‘due

process’ is compounded of history, reason, the past

course of decisions, and stout confidence in the

strength of the democratic faith which we profess.

Joint Anti-Fascist Refugee Committee v. McGrath,

341 U.S. 123, 162 (1951) (Frankfurter, J. con-

curring).

The right to a prompt preliminary hearing after arrest fits

securely into due process of law.

AN INFORMATION FILED BY A STATE ATTOR-

NEY CANNOT. OBVIATE THE RIGHT TO AN

INDEPENDENT ADVERSARIAL DETERMINATION

OF PROBABLE CAUSE.

A. The Information Process Provides None of the

Elements Essential to a Due Process Hearing.

At the least, the minimum requirements of a due

process hearing are: (1) written notice of the charges; (2)

an opportunity to confront and cross examine adverse

witnesses; (3) the right to be heard and to present

witnesses and documentary evidence; and (4) the right to

have a neutral and detached person determine the

question of probable cause. Morrissey v. Brewer, 408 U.S.

471, 489 (1972); Gagnon v. Scarpelli, __- US. ___s, 93

S.Ct. 1756, 1761-1762 (1973); Goldberg v. Kelly, 397

U.S. 254, 267-268 (1970). The information process —

provides none of these safeguards. The administrative

officer for the State Attorney described the method

(App. 44-59). It is wholly ex-parte. The arrestee has no

role at all in the proceedings which affect his liberty.

21

Moreover, a finding of probable cause by the State

Attorney cannot comport with the due ‘process clause,

because the State Attorney is not a “neutral and de-

tached” person. In Morrissey the Court commented:

In our view, due process requires that after the

‘arrest, the determination that reasonable ground

exists for revocation of parole should be made by

someone not directly involved in the case.

Id. 408 U.S. at 485.

The State Attorney is the chief prosecuting official. It

cannot be said that he meets the due process standard set

in Morrissey. That becomes plain when one considers the

requirement of neutrality and detachment embodied in

the Fourth Amendment.

B. The State Attorney Cannot Be the Neutral and

Detached Magistrate Required by the Fourth

Amendment. :

The Fourth Amendment provides: “The right of the

people to be secure in their persons. . . against unreason-

able searches and seizures, shall not be violated . . .”

In Coolidge v. New Hampshire, 403 U.S. 443 (1970)

this Court held that the Attorney General of New Hamp-

shire could not be a neutral and detached person who

would be permitted to authorize the issuance of a

warrant for a Fourth Amendment search and seizure:

We find no escape from. the conclusion that the

seizure and search ... cannot constitutionally rest

upon the warrant issued by ‘the state official who

was the chief investigator and prosecutor in this

case. Since he was not the neutral and detached

magistrate required by the Constitution, the search

stands on no firmer ground than if there had been

no warrant at all.

Id. 403 U.S. at 453.

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22

A warrant for an arrest requires the same degree of neu-

trality and detachment. Shadwick v. City of Tampa, 407

U.S. 345, 350 (1971)."!

The State Attorney, very, properly, does not attempt

to distinguish his situation from the “neutral and de-

tached” rules enunciated in Coolidge, Shadwick (or

' Morrissey). He is the chief prosecutorial. official and

therefore he cannot, consistent with the Fourth Amend-

ment, be the sole arbiter of probable cause, prior to or

subsequent to an arrest.

Il.

THE FAILURE TO ACCORD PRELIMINARY

HEARINGS TO ALL MISDEMEANANTS, PRO-

CEEDED AGAINST BY INFORMATION OR NOT,

VIOLATES THE EQUAL PROTECTION AND THE

DUE PROCESS CLAUSES OF THE FOURTEENTH

AMENDMENT AND THE FOURTH AMENDMENT.

The Florida Rules of Criminal Procedure (Rule

3.131(a)) deny a preliminary hearing to arrested mis-

demeanants, no matter how their prosecution is insti-

tuted. Those persons suffer the same due process depriva-

tion as persons charged with felonies. They are deprived

of their liberty without an opportunity to be heard. If

''The rationale of Shadwick underlines the Fourteenth Amend-

ment due process nature of this case. Shadwick held, on Fourth

Amendment grounds, that a municipal court clerk was a neutral

and detached person who could issue an arrest warrant. A decision

here, based on the Fourth Amendment only, would permit a State

Attorney to file an information and have a neutral and detached

court clerk, or a judge, issue an arrest warrant. The question of

‘what is. due after arrest would be left unanswered. But it is that

issue, the right ‘to‘be heatd after arrest, —_ is the core of this

case. That is a due process matter.

23

charged by information, the Fourth Amendment viola-

tion also occurs.’? / 1

The right to be heard is a fundamental right, Grannis v.

Ordean, 234 U.S. 385, 394 (1914), especially when one is

being deprived of liberty. The ear He of the Fourth

Amendment are fundamental rights. olf v. Colorado,

338 U.S. 25, 27-28 (1949). ‘Where certain ‘fundamental

rights’ are involved, the Court has held that regulation

limiting these rights may be justified only by a ‘com-

pelling state interest’. Roe v. Wade, ___U.S.____, 93

S.Ct. 705, 728 (1973); Shapiro v. Thompson, 394 U.S.

618, 634 (1969).

Neither the State Attorney or the Attorney General, in

their briefs, contend that any state interest is protected

by the total exclusion of misdemeanants.'* Originally, in

the District Court, the State Attorney argued that a fair

trial problem could be created if the magistrate deter-

mining probable cause in a misdemeanant’s case had the

same case assigned to him for trial. The Fifth Circuit

response to that concern was succinct:

The answer to this is not the denial of preliminary

hearings, but the development of a system whereby

judges are rotated to prevent such overlap. Indeed,

'2The due process and Fourth Amendment discussions in Points

1 and II apply with equal force to this point. They will not be

repeated since this argument focuses upon equal protection.

'3 Another classification, delayed hearings for persons charged

with capital offenses or offenses punishable by lite imprisonment,

was never rationalized by the State Attorney or the State, nor

alluded to in their briefs in this Court. The classification was struck

as violative of equal protection by the District Court (App.

110-111, Pugh v. Rainwater, 355 F.Supp. at 1291-1292) ana the

Court of Appeals. Pugh v. Rainwater, 483 F.2d at 789-790. The

point is not argued in this brief since the petitioner and the Amicus

Curiae appear to accept the parity ordered below, if preliminary

hearings are required.

24

the Chief Judge of the Magistrate Division of the

Eleventh Judicial Circuit has already testified that

preliminary hearings and misdemeanor trials are cur-

rently conducted by separate panels of judges in

Dade County.

Pugh v. Rainwater, 483 F.2d at 789.

The Court of Appeais also addressed the State’s con-

cern for the cost of providing preliminary hearings for

misdemeanants. It found ample support for the District

Court’s finding that any increased costs would not be

significant:

The number of misdemeanor cases involving no pre-

trial incarceration and requiring no preliminary hear-

ings comprised the bulk of all misdemeanors.

Moreover, experience from the felony hearing

system showed a reduction in felony caseloads and a

savings to the taxpayers of the county.

Pugh v. Rainwater, 483°F.2d at 789. (footnote

omitted)

Even if there were some basis for the State’s concerns,

this Court has said:

In any case, our prior decisions make clear that,

although efficacious administration of governmental

programs is not without some importance, the Con-

stitution recognizes higher values than speed and

efficiency.... And when we enter the realm of

‘strict judicial scrvtiny,’ there can be no doubt that

‘administrative convenience’ is not a shibboleth, the

mere recitation of which dictates constitutionality.

Frontiero v. Richardson, __U.S.___ , 93 S.Ct.

1764, 1772 (1973) (citations omitted).

Actually, providing jailed misdemeanants with pre-

liminary hearings will promote speed and efficiency in

the administration of criminal justice. Persons who

should not be detained will be released, saving future

court and police time. Pleas accepted at the preliminary

hearing would result in similar savings.

PERALTA a

25

Beyond that, the availability of such a hearing for in-

carcerated defendants would encourage pre-trial release

of those persons, and relieve overcrowded jails.’* It

would also motivate courts to provide speedy trials for

misdemeanants, promptly determining guilt or innocence,

instead of probable cause. In Dade County, Florida, that

result has already been achieved.'*

Most misdemeanors arrests do not contemplate jail

pending trial. Florida provides for the use of a summons

in’ lieu of arrest and booking in misdemeanor cases.

Florida Statutes § 901.09; Rule 3.130(1) Florida Rules of

Criminal Procedure. That method is rapidly gaining

nationwide support. Report on Police, National Advisory

Commission on Criminal Justice Standards and Goals,

'SThe Director of the Dade-County Jail testified that the major-

ity of the 500 persons in his jail were awaiting trial and remained in

custody because they were unable to post pre-trial monetary bond.

(Deposition of Jack C. Sandstrom, reflected in the Record on

Appeal, pages 305-314. See especially pages 308-312). The ques-

tion of the constitutionality of money bail as applied to indigents

was raised in the original compiaint filed by Pugh, Henderson and

two intervening plaintiffs. The District Court denied relief on that

claim and a separate appeal was taken by the plaintiffs. That case,

Pugh v. Rainwater, Fifth Circuit No. 72-1223, has not been

decided.

'SThe State Attorney’s Brief, at page 18, states:

. most misdemeanants in Dade County, Florida have dis-

position of their cases on the merits in a shorter time than

they could be accorded a preliminary hearing under the rules

now in effect.

Those rules, Florida Rules of Criminal Procedure, Rule 3.131(b), as

amended February 4, 1974, tolerate a five day lapse between arrest

and preliminary hearing in felony cases. (The first appearance

hearing is required within 24 hours of arrest, Rule 3.130(b), and

the preliminary hearing 96 hours or four days later, unless an infor-

mation is filed.) Actually the rules may condone a seven day lapse

because Rule 3.040 excludes Saturdays, Sundays and holidays in

the computation. The Court of Appeals refrained from deciding

Standard 4.4 “Citation and Release on Own Recogni-

zance.” (1973)'®

Thus, an analysis of the competing interests involved in

the classification which excludes misdemeanants compels

only one conclusion: neither a compelling state interest

or a rational basis exist to justify the classification. Under

the strict equal protection test, Roe v..Wade, _ US.

, 93 S.Ct. 705, 728 (1973), or the relaxed standard

McGowan v, Maryland; 366 U.S. 420, 425-426 (1961),

the total exclusion of incarcerated misdemeanants from

preliminary hearings must fall.

the delay the Constitution might permit. Pugh v. Rainweter, 483

F.2d at 788. Respondents unsuccessfully cross-petitioned for

certiorari on that point 42 L.W. 3325 (December 3, 1973, Justice _

Douglas dissenting). While not attempting to circumvent the

Court’s denial, respondents respectfully submit that the question

of when a hearing is required by due process is a legitimate one.

Armstrong v. Manzo, 380 U.S. 545, 552 (1965). A week of incar-

ceration absent a hearing is too long, especially in light of Arger-

singer v. Hamlin, 407 U.S. 25 (1972) which precludes a loss of

liberty for one day absent counsel. For totally excluded mis-

demeanants, Argersinger presents a compelling argument. It seems

constitutionally incongruous to prohibit one day of incarceration

after trial unless counsel is provided or properly waived but on the

other hand, permit lengthy pre-trial incarceration without a

hearing.

‘The limited impact of giving jailed misdemeanants preliminary

hearings is supported by a footnote in Argersinger v. Hamlin, 407

U.S. 25, 38 n. 10 (1972) reflecting that of 1,288,975 people con-

victed in the City of New York in 1970 for minor offenses, only 24

were incarcerated. With such small numbers being jailed after trial,

it seems clear that the number of minor offenders suffering incar-

ceration prior to trial must be de minimus in nearly all jurisdic-

tions.

Another alternative to providing preliminary hearings to mis-

demeanants is suggested by the American Bar Association Special

Committee on Crime Prevention and Control: take various types of

conduct out of the court system. Argersinger vy. Hamlin, 497 U.S.

25, 38 n. 9 (1972).

lisa

ae

age ie

——

erm

a

IV.

THE CASES RELIED UPON BY THE STATE

ATTORNEY ARE NOT DETERMINATIVE OF THIS

CASE. send

A. Hurtado v. California, 110 US. 516 (1884)

and Its Progeny Relate to Preliminary Hearings

Prior to Arrest, An Issue Not Presented Here.

Throughout this litigation the State Attorney has

maintained that Hurtado v. California, 110 U.S. 516

(1884), Lem Woom. vy. Oregon, 229 U.S. 586 (1913);

Ocampo v. United States, 234 U.S. 91 (1914) and Beck v.

Washington, 369 U.S. 541 (1962) justify the denial of

preliminary hearings. Both the District Court and the

Fifth Circuit examined those cases and concluded that

they permitted informations without prior judicial deter-

minations of probable cause and found them not determi-

native of the right to subsequent determinations of

probable cause.

Hurtado v. California, 110 U.S. 516 (1884) permitted

the use of an information instead of an indictment as a

method for initiating prosecutions. But the process which

was approved provided for a preliminary hearing prior to

the information:

We are unable to say that the substitution for a

presentment or indictment by a grand jury of the

proceeding by information, after examination and

committment by a magistrate, certifying to the

probable guilt of the defendant, with the right on

his part to the aid of counsel, and to the cross

examination of the witnesses produced for the ~

prosecution, is not due process of law.

Id. 110 U.S. at 538 (Emphasis supplied. )

The respondents do not object to an information after

a preliminary hearing if probable cause is foung. The

information in that situation is merely a charging docu-

ment based upon an independent determination of prob-

28

able. cause. It is an information which is neither

preceeded nor followed by an independent determination

of probable cause which runs afoul of the Constitution.

Thus, Hurtado is not inconsistent with the contentions

advanced here.

Lem Woom vy. Oregon, 229 U.S. 586 (1913) allowed

the state to use an information where:

The Constitution and laws of Oregon ... did not

require any examination by a magistrate as a condi-

tion precedent to the institution of a prosecution by

an information filed by the district attorney, nor

require any verification other than his official oath.

Id. 229 U.S. at 587 (Emphasis supplied.)

The Court held that there was no requirement for a

judicial examination “‘prior to the formal accusation by

the district attorney”’ /d. 229 U.S. at 590 (Emphasis sup-

plied). The right to a preliminary hearing as a condition

subsequent was not addressed.

In Ocampo v. United States, 234 U.S. 91 (1934) the

defendants sought to vacate an order of arrest, and invali-

date their subsequent conviction at trial:

. upon the ground that it [the arrest] was made

without any preliminary investigation held by the

court and without any tribunal, magistrate, or other

competent authority having first determined that

the alleged crime had been committed, and that

there was probable cause to believe the defendants

guilty of it...

Id. 234 U.S. at 93 (Emphasis supplied).

The Court found that there was no need for investigation

by a judicial officer prior to arrest:

... the function of determining that probable cause

exists for the arrest of a person accused is only quasi

judicial and not such that because of its nature it

must necessarily be confided to a strictly judicial

officer or tribunal.

Id. 234 U.S. at 100 (Emphasis supplied).

29

That statement is wholly consistent with Shadwick vy.

City of Tampa, 407 U.S. 345 (1972), which empowered a

municipal court clerk to determine probable cause for

arrest.

Although the prosecuting attorney in Ocampo deter-

mined that an offense may have been committed, his

information and supporting affidavit were “made before

the judge of the court of first instance, who thereupon

issued warrants of arrest.”’ Id. 234 U.S. at 93 (Emphasis

supplied). Thus, a neutral and detached person stood

between the prosecutor and the defendant. Any other

method, even prior to arrest, would deviate from

Coolidge v. New Hampshire, 403 U.S. 433 (1970) and

Shadwick v. City of Tampa, 407 U.S. 345 (1971). See

also McNabb v. United States, 318 U.S. 332 (1942).?”

Beck v. Washington, 369 U.S. 541 (1962), as the Court

below stated, adds nothing to Ocampo. The State

Attorney seeks to impute approval for his practice by

reading new meaning into the Court’s comment that since

Washington abandoned its mandatory grand jury

practice: 3 ,

... Prosecutions have been instituted on informa-

tions filed by the prosecutor without even a prior

judicial determination of ‘probable cause’—a pro-

"<The lawful instruments. of the criminal law cannot be en-

trusted to a single functionary. The complicated process of

criminal justice is therefore divided into different parts, responsi-

bility for which is separately vested in the evarious participants

upon whom the criminal law relies for its vindication. Legislation

such as this, requiring that the police must, with reasonable

promptness, show legal cause for detaining arrested persons, con-

stitutes an important safeguard—not only in assuring protection for

the innocent but also. in securing conviction of the guilty by

methods that commend themselves to a progressive and self-

confiderit society.”

McNabb vy. United States, 318 U.S. 332, 343-344 (1942).

st Se MD Ha itl dnt RB tet Sn <n aA a Stal tas diab ibe or enemunecomene:

ls inl is: et Sal aia eo te

De reserve satisrcnsn > LilttOnPl iB AN Bininnict a aad PLease:

30

cedure which has likewise had approval here in such

_cases_as Qcampo v. United States...and Lem

Woom v, Oregon ....

Id. 369 U.S. 524,

The State Attornéy maintains that the Court was “‘cer-

tainly aware” that Washington law did not require

subsequent judicial determinations of probable cause

(Petitioners’ Brief, page 13). But Beck did not present the

issue of probable cause hearings. The speculative assertion

made by the State Attorney simply has no foundation.

Beck is merely a reaffirmation of Ocampo.

Whatever the application of Hurtado, Lem Woom and

Ocampo, they share one characteristic with the several

Courts of Appeal decisions which the State Attorney

urges in support of his argument. They all attempted to

reverse otherwise valid convictions because of the denial

of a preliminary hearing. No such attempt is made here,

and that fact distinguishes all of the cases cited by the

State Attorney.

B. The Several Courts of Appeal Decisions Cited

By the State Attorney Are Not Applicable.

The State Attorney refers to several Courts of Appeal

decisions which hold that preliminary hearings are not

required by the Due Process Clause.'* Each of those cases

involved a defendant who was seeking to overturn his

'8Scarborough v. Dutton, 393 F.2d 6 (Sth Cir. 1968); Kerr v.

Dutton, 393 F.2d 79 (2d Cir. 1968); Sciortino v. Zampano, 385

F.2@ 132 (3d Cir. 1969); Rivera v. Gov't of the Virgin Islands, 375

F.2d 988 (4th Cir. 1967); Barber v. U.S., 142 F.2d 805 (6th Cir.

1944); U.S. v. Luxenberg, 374 F.2d 241 (7th Cir. 1967); Weber v.

Ragen, 176 F.2d 579 (8th Cir. 1949); U.S. v. Gross, 416 F.2d 1205

(9th Cir. 1969); Austin v, U.S., 408 F.2d 808 (10th Cir.'1969); and

Swingle v. U.S., 389 F.2d 220 (D.C. Cir. 1968). The casts invoiving

federal defendants arose out of indictments and are doubly in-

applicable.

31

otherwise valid conviction because of the denial of a pre-

liminary hearing. That relief is not sought here.

Those cases are grounded upon the sound theory that a

fair trial is possible without a preliminary hearing. The

question presented here is whether a pre-trial deprivation

of liberty is fair without a peepee hearing. The Fifth

Circuit concluded:

The distinction between a pretrial declaration of a

right to a hearing and a post conviction appeal for

reversal on the basis of the absence of such a hearing

is a pragmatic and sensible distinction.

Pugh v. Rainwater, 483 F.2d at 787. ~

The Courts of Appeal cases did not consider the right

to a preliminary hearing in the context presented here.

Therefore those decisions are not dispositive of the claims

before this Court.

C. Rule 5(c). Federal Rules of Criminal Procedure _

And Ti’. 18 U.S.C. § 3060(e) Do Not Bar |

Relic..

Rule 5(c), Federal Rules of Criminal Procedure and

Title 18 U.S.C. §3060(e) disallow preliminary hearings if

an information is filed prior to the hearing date. It is

argued that the existence of those provisions supports the

constitutional validity of the practices under scrutiny

here. The respondents respectfully submit that no such

conclusion can be drawn. The federal information pro-

vision has never been questioned in this Court on_

analogous Fifth and Fourth Amendment grounds. In the

absence of such an inquiry, it cannot be said that *=

§3060(e) and Rule 5(c) govern the constitutional issues

in the instant matter. PE

As a practical matter, the federal practice would be

minimally affected by affirmance in this case. Under Rule

7(a), Federal Rules of Criminal Procedure, informations

may be used only in misdemeanor cases, unless a felony

defendant waives indictment. Misdemeanants generally

32

secure pre-trial release in the federal system, pursuant to

the Bail Reform Act (Title 18 U.S.C. §3146 et. seq). In

the state system, pre-trial detention is widespread’? and

preliminary hearings would have a more important

impact. ;

V.

THE JUDGMENT OF THE DISTRICT COURT

WAS A PROPER EXERCISE OF JURISDICTION.

NEITHER ABSTENTION, THE ANTI-INJUNCTION

STATUTE OR YOUNGER »v. HARRIS, 401 U.S. 37

(1971), BAR RELIEF IN THIS CASE.

The State Attorney has commingled abstention, the

anti-injunction ‘statute (Title 28 U.S.C. §2283) and

Younger v. Harris, 401 U.S. 37 (1971), in his argument

that the decisions below were improper exercises of juris-

diction. None of those theories bar relief in this case.?°

Abstentiorni is a narrow doctrine properly utilized only

when the state law “is susceptible of ‘a construction by

the state courts that would avoid or modify-the [federal]

constitutional question.’” Lake Carriers Assoc. vy.

MacMullan, 406 U.S. 498, 510 (1972). Those circum-

stances do not exist here. The Florida case law and rules

‘Footnote 14, supra. See also Goldfarb, Ransom, Harper and

Row, New York (1965).

The Attorney General, in his Amicus Curiae Brief (pp. 12-16)

asserts another jurisdi: tional issue. He contends that requiring pre-

liminary hearings would allow,.an inferior court of Florida to over-

rule a higher court. No décision yet rendered has sought to deline-

ate who should conduct preliminary hearings. Nor is such a deter-

mination sought here. All that is urged is that some judicial officer

determine probable cause. Florida Statutes, §901.01 (as amended,

6 West Florida Session Laws, 1973 Chap. 73-334) provides that

“each state judicial officer is a... committing magistrate.” That

provides sufficient flexibility to meet any contingency. The cases

cited by the Attorney General are inapposite.

CN A nl Bs oc TINGS

33

have never been ambiguous. They have been clear and

consistent in their insistence that the Florida and Federal

Constitutions are not offended by the use of an informia-

tion in lieu of an impartial determination of probable

cause by a judicial official. State ex rel. Hardy v. Blount,

’ 261 So.2d 172 (Fla. 1972); Widener v. Croft, 184 So.2d

444 (Fla. 1966): Rule 3.131(a), Florida Rules of Criminal

Procedure. :

‘Both the District Court opinion (332 F.Supp. at 1115)

and the Fifth Circuit opinion (483 F.2d at 781-782) paid

careful heed to Younger. Both Courts concluded, cor-

rectly, that the relief sought did not involve interference

with pending or future prosecutions. Fuentes v. Shevin,

407 U.S. 67, 71, n. 3 (1972).

If Younger v. Harris were applicable, this case would

fall within its exceptions. The Court in Younger said that

no obstacle exists to an injunction when: (1) great and

immediate irreparable injury is present; (2) Federal con-

stitutional rights cannot be protected in State court and

(3) the threatened constitutional deprivation cannot be

eliminated by a single defense to the State prosecution.

All of those circumstances exist here.

The loss of liberty constitutes great and imimediate

irreparable injury. The Florida law forecloses any consti-

tutional challenge, either as a defense or by an equitable

action, to the denial of a preliminary hearing. State ex

rel. Hardy v. Blount, 261 So.2d 172 (Fla. 1972). Thus, the

Younger exceptions are met. Cf~Younger v. Harris, 401

U.S. 37, 46 (1971).

eS erauueee

PETMAN ELEN T

SF ata BR RPE SAE oot

Sie ASR EE RRR 9 oe ie ties

34

VI.

PROVIDING PRELIMINARY HEARINGS WILL PRO-

MOTE THE EFFICIENT ADMINISTRATION OF

JUSTICE.

In addition to its value in protecting the individual

against unfounded criminal charges, the preliminary hear-

ing serves important governmental interests. It is an

excellent screening device for determining which cases

should or should not remain in the criminal justice

system. Cases with insufficient evidence are promptly dis-

missed permitting trial courts to concentrate on the more

serious matters.

Paulsen and Kadish, Criminal Law and Its Processes

920 Little, Brown & Co. (1962) note: “~

*‘An enormous number of cases are eliminated by

the preliminary examination. The Crime Surveys of

the prohibition era found that in various states from

17 percent to 58 percent of all felony arrests failed

to proceed beyond the preliminary examination

stage. The cases are brought to an end at this early

point by: (1) dismissal for want of prosecution, per-

haps because witnesses failed to appear; (2) dis-

charge for lack of probable cause; (3) filing of a

nolle prosequi.”

An American Bar Foundation study estimated that the

clearance rate for felonies at the preliminary hearing stage

was eighty percent in Chicago and sixty-five percent in

Brooklyn, New York. McIntyre and Lippman, Pro-

‘secutors and Early Disposition of Felony Cases, 56

A.B.A.J. 1154, 1156 (1970). In the instant case, Judge .

Tanksley, Chief Judge «f the Magistrate’s Division of the

Eleventh Judicial Circuit of Florida, estimated that the

preliminary hearing'system had reduced felony caseloads

by twenty to twenty-five percent in Dade County,

Florida. Pugh v. Rainwater, 483 F.2d 778, 787 (Sth Cir.

1973).

35

Prompt preliminary hearings also provide an excellent

vehicle for early decisions.on bail or release on personal

recognizance. Report on Courts, National Advisory Com-

mission on Criminal Justice Standards and Goals,

Standard 4.5 (1973).

Moreover, the hearings bring the parties together at an

early stage for plea bargaining purposes. Since counsel is

required, Coleman v. Alabama, 399 U.S. 1 (1970),

charges may be reduced or otherwise plea bargained at an

early stage of the proceedings, rather than waiting until

trial to achieve the same disposition. See, Katz, Justice is

the Crime: Pre-Trial Delay in Criminal Cases, The Press of

Case Western Reserve University, Cleveland and London,

(1972), pp. 211-212.

Each of these benefits serves the public interest by

promoting an efficient, economical administration of

criminal justice. The public interest is also served, of

course, by the protection which a preliminary hearing

offers for the right to liberty.

CONCLUSION

For the foregoing reasons, it is respectfully submitted

that the decision below should be affirmed.

Respectfully submitted,

BRUCE S. ROGOW

733 City National Bank Building

25 West Flagler Street

Miami, Florida 33130

PHILIP A. HUBBART, Public Defender

for the Eleventh Judicial Circuit

Metropolitan Justice Building

1351 N.W. 12 Street

Miami, Florida 33125

Riba PEE

36

CERTIFICATE OF SERVICE

I HEREBY CERTIFY that a copy of brief for

respondents was. served by United States Mail upon

Leonard Mellon, Esquire, Assistant State Attorney, 2070

Main Street, Sarasota, Florida; Joseph Durrant, State -

Attorney’s Office, Metropolitan Justice Building, 1351

N.W. 12 Street, Miami, Florida and George R. Georgieff,

' Assistant Attorney General, Attorney General’s Office,

The Capitol, Tallahassee, Florida 32304, this 7 day of

February, 1974.

BRUCE S. ROGOW

Counsel for Respondents

la

APPENDIX

PRELIMINARY HEARING PROVISIONS

OF THE FIFTY STATES

ALABAMA-Code, 1940, Tit.:15, §133

ALASKA-—Cr. R. 5(d)

ARIZONA-—17 A.R.S. Rules of Criminal Procedure, Rule 5.1

ARKANSAS-Stat., 1964, Tit. 43, §43-603

CALIFORNIA--Penal Code, 1971, §859b

COLORADO-1 C.R.S. Rules of Criminal Procedure, Rule S(c)

CONNECTICUT-—C.G.S.A. §54-76a

DELAWARE~—13A D.C.A. Rules of Criminal Procedure, Rule S(c)

FLORIDA—Rules of Criminal Procedure, Rule 3.131

GEORGIA—Code, 1972, Tit. 27, §27-407

HAWAII—Rev. Stat., 1971, Tit. 37, §710-7

IDAHO—Code, 1973, Tit. 19, §19-804

ILLINOIS—S.H.A. Ch. 38, § 109-3 (1963)

INDIANA—Burn’s Ind. Stat. Ann., 1937, Tit. 9, §§704, 704a

(1949)

IOWA-—L.C.A. §761.1 (1939)

KANSAS~K:.S.A., Art. 22, §22-2902 (1970)

KENTUCKY-—7 K.R.S., Rules of Criminal Procedure, Rule 3.04

LOUISIANA—Code of Criminal Procedure, 1966, Tit. 7, Arts. 291,

292

MAINE-Rules of Criminal Procedure, Rule S(c)

MARYLAND-Code, 1957, Art. 27, §592 (1973)

_sMASSACHUSETTS—M.G.L.A. Ch. 276, § §37A-42 (1959)

MICHIGAN=M.C.L.A. § 766.1

MINNESOTA~—M.S.A. § §628.31, 629.50

MISSISSIPPI—Code, 1942, Tit. 99, Ch. 15, §99-15-5

bie Silla ta Pee Pb a0 07 thine Fatal Y CE

Pectin: ne ae

. — 2a

MISSOURI-—V.A.MS. §544.250 (1972), Rules of Criminal Pro-

cedure, Rules 23.02, 23.03

MONTANA~Rev. Code, 1967, Tit. 95, §95-902

NEBRASKA~Rev. Stat., 1943, Ch. 29, § 29-506

* NEVADA—Rev. Stat., 1971, Tit. 14. Ch. 171, §171.196

NEW HAMPSHIRE- Rev. Stat., 1°55, Ch. 596

NEW JERSEY—Rules Governing Criminal Practice, Rule 3:4-3

NEW MEXICO-Stat., 1972, Ch’ 41, §41-23-20

NEW YORK-—Code of Criminal Procedure §180.60 (McKinney

1971)

NORTH CAROLINA-Gen. Stat., Ch. 15, § 15-87

NORTH DAKOTA-—Century Code, 1943, Tit. 29, §§29-07-11,

29-07-18

OHIO—Rev. Code, Tit. 29, §§2937.10:2937.12 (1960) 2945.71

(1974)

OKLAHOMA—Const. Art. 2, §17, Laws, 1961, Tit. 22, §258

OREGON—O.R:S. 1963, Tit. 14, § § 133.610, 133.810, 133.820

PENNSYLVANIA—Pa. R. Crim. P. 120

RHODE ISLAND—Gen. Laws, 1956 (1969 reenactment,, Tit. 12,

§12-10-5

SOUTH CAROLINA—Code, 1962, § §43-231, 43-232

SOUTH DAKOTA-S.D.C.L., 1967, Tit. 23, § §23-27-1 - 23-27-16

TENNESSEE—Code, 1971, §40-1131

TEXAS—Vernon’s Ann. C.C.P. Art. 16.01

UTAH-U.C.A., 1953, Tit. 77, §77-15-3

VERMONT—Rule 5, Vermont Rules of Criminal Procedure

VIRGINIA—Code, 1950, Tit. 19, §19.1-101 (1968)

WASHINGTON—Rev. Code, Tit. 10, §§10.16.040 (1952),

10.16.080 (i354)

WEST VIRGINIA—Code, 1965, §62-1-8

WISCONSIN—U.S.A. § §970.03, 971.02 (1969)

WYOMING—Rules of Criminal Procedrue, Rule 7

3a

NOT FINAL UNTIL FEBRUARY 15, 1974, AND IF REHEAR-

ING FILED, UNTIL SAID PETITION IS DETERMINED.

IN THE SUPREME COURT OF FLORI DA

JANUARY TERM, A.D. 1974

IN RE:

RULE 3.131(b), FLORIDA : CASE NO. 44,958

RULES OF CRIMINAL PROCEDURE :

Opinion filed February 4, 1974

A Case of original jurisdiction — Florida Rules of Criminal Pro-

cedure

PER CURIAM.

Under the present Rules of Criminal Procedure, every

defendant charged with a non-capital offense is entitled

to a preliminary hearing within 72 hours if he is in

custody. The purpose of this provision was to speed the

filing of information and thereby require the state

attorney to.determine, within 72 hours, whether a_

defendant will be prosecuted or should be released.

Before filing an information every state attorney

should not only seek probable cause in his investigation,

but also determine the possibility of proving the case

beyond and to the exclusion of every reasonable doubt.

If the latter cannot be accomplished, no uiformation

should be filed and the defendant should be released. The

rule requiring this determination within 72 hours will re-

sult in tie filing of some cases iin which the state attorneys

do not have a firm belief as to the integrity of the charge,

or the state attorneys will be required to invoke a com-

plete preliminary hearing system, with all its attendant

costs and burd ns upon the judicial system as well as the

people of the state.

i SS

pet BSBA Sa ME me OEE

4a

The state attorneys have requested that this rule be

amended so that they will be allowed the period of 96

hours within which to complete their investigation of the

case and determine whether to file an information or

dismiss the charge. If the time is extended to 96 hours,

the number of cases in which no information is filed wi"!

be increased and the number of cases‘in which a nolle

prosequi of an information is entered will be reduced.

The amendment. will prevent charges from being filed

against innocent people in cases where the state objec-

tively could not prove the charges brought by the

investigating law enforcement agency.

In an effort to expedite the dismissal of unwarranted

charges brought against innocent citizens and in an effort

to facilitate the operatior of the criminal justice system

with least inconvenience to the citizen, Rule 3.131(b) is

hereby amended so that the same shall read as follows:

RULE 3.131. PRELIMINARY HEARING

* *

(b) In all cases where the defendant is in custody,

except capital offenses or offenses punishable by life

imprisonment, the preliminary hearing shall be held

within 96 hours from the time of the defendant’s

first appearance. In all capital offenses and offenses

punishable by life imprisonment, the preliminary

hearing shall be held within seven days of the time

of the defendant’s first appearance. Should the

charges as set forth in paragraph (a) of this rule not

be filed, or the preliminary hearing as set forth in

this paragraph not be held within the time period

herein specified, then the court shall release the

defendant on a personal surety bond, without the

necessity of additional surety signing thereon,

together with such other conditions as to the court

may seem just and proper under the circumstances.

This rule shall take effect on March 1, 1974.

It is so ordered.

} ae

Sa

CARLTON, C.J., ROBERTS, ADKINS, McCAIN and

DEKLE, JJ., Concur

ERVIN, J., Dissents with opinion

BOYD, J., Dissents

ERVIN, J., dissenting:

This postponement by rule for yet another twenty-

four hours (increasing the time to four days) within

which preliminary hearings must be afforded uncharged

accuseds held in custody is yet another retreat from the

modern view that deprivation of an accused’s liberty

should not be unduly prolonged by the slowness of the

prosecutorial machinery. Originally it was provided in the

American Bar Association’s proposed Minimum

Standards for Criminal Justice that the time of such

detention in custody of accused felons for crimes less

than capital and misdemeanants should be only twenty-

four hours.

This further postponement of the time during which

an accused may be held in custody for prosecutorial

investigation—after the arresting officer has made ‘he

arrest—compounds an already undue length of time tor

state action. An accused is entitled to an expeditious

determination of whether there is probable cause for

charging him and holding him in further custody.

This modification is but another imposition upon poor

people unable to secure bail upon arrest. It is a relaxive

indication there is to be no incentive for speeding up of

the state procedures for determining whether accuseds

should be further detained. It is contrary to the spirit of

the Constitution for early release of the innocent and the

speedy charging and prosecution of the guilty.