NCJ Number
13484
Journal
Yale Law Journal Volume: 83 Issue: 4 Dated: (MARCH 1974) Pages: 771-805
Date Published
1974
Length
35 pages
Annotation
THIS NOTE FORMULATES A COMPREHENSIVE THEORY OF THE ROLE OF THE PRELIMINARY HEARING IN THE AMERICAN CRIMINAL JUSTICE SYSTEM.
Abstract
THE THEORY IS BASED ON THE PURPOSES WHICH UNDERLIE THE PRESENT CONCERN WITH INTOLERABLE DELAY BETWEEN ARREST AND TRIAL. IN MODERN CRIMINAL LAW PRETRIAL PROCEDURE IS FOR MOST DEFENDANTS THE ONLY CRIMINAL PROCEDURE. FOR THIS REASON, THE CRIMINAL JUSTICE SYSTEM MUST PAY CLOSE ATTENTION TO THE FUNCTIONING OF PRETRIAL PROCEDURE TO INSURE THAT IT IS PROVIDING THE PROTECTIONS TO WHICH ALL ACCUSED PERSONS ARE ENTITLED. FURTHERMORE, EXPEDITIOUS AND EFFECTIVE PRETRIAL PROCEDURE PROTECTS OTHER IMPORTANT SOCIAL INTERESTS. THE CORE OF PRETRIAL PROCEDURE IS THE PRELIMINARY HEARING, AT WHICH POLICE AND PROSECUTORIAL DISCRETION AND THE DEFENDANT'S GUILT ARE FIRST SUBJECTED TO JUDICIAL SCRUTINY. THIS NOTE ARGUES THAT THE CENTRAL ROLE OCCUPIED BY THE PRELIMINARY HEARING SHOULD BE OPENLY ACKNOWLEDGED AND FURTHER DEVELOPED IN THE FEDERAL SYSTEM. THE BENEFITS OF SUCH DEVELOPMENT ARE A MORE EXPEDITIOUS PRETRIAL PROCEDURE AND A JUST SYSTEM OF CRIMINAL LAW. HOWEVER, THE COSTS AND BENEFITS OF THIS DEVELOPMENT, PARTICULARLY IN MONETARY TERMS, ARE STILL UNCERTAIN. AN APPROPRIATE COURSE OF ACTION AT THIS POINT, THEREFORE, IS THE CONGRESSIONAL IMPLEMENTATION OF FORWARD-LOOKING PRELIMINARY HEARINGS IN A LIMITED AND GEOGRAPHICALLY DISPERSED NUMBER OF FEDERAL DISTRICT COURTS TO PROVIDE INFORMATION ON THE ACTUAL IMPACT OF SUCH REFORM. (AUTHOR ABSTRACT MODIFIED)