NCJ Number
30071
Journal
Illinois Bar Journal Volume: 64 Issue: 3 Dated: (NOVEMBER, 1975) Pages: 160164
Date Published
1975
Length
5 pages
Annotation
THIS ARTICLE EXAMINES THE EFFECT OF THE 1970 ILLINOIS CONSTITUTION WHICH ELEVATED THE RIGHT TO A PRELIMINARY HEARING TO CONSTITUTIONAL STATUS BY EXAMINING THE INTERPRETATION OF THE PROVISION BY ILLINOIS COURTS.
Abstract
SEVERAL ILLINOIS COURT CASES ARE REVIEWED, INCLUDING PEOPLE V. KENT (1972), PEOPLE V. SPERA (1973), AND PEOPLE V. HENDRIX (1973). IT IS CONCLUDED THAT, AS INTERPRETED BY THE ILLINOIS REVIEWING COURTS, THE NEW CONSTITUTIONAL PROVISION FOR A RIGHT TO A PRELIMINARY HEARING HAS HAD LITTLE, IF ANY, EFFECT ON THE RIGHT TO A PRELIMINARY HEARING IN ILLINOIS AS IT EXISTED PRIOR TO THE 1970 CONSTITUTION. THE CONSTITUTIONAL REQUIREMENT FOR A PROMPT PRELIMINARY HEARING CAN BE MET BY EITHER HOLDING A PROMPT PRELIMINARY HEARING OR PROMPTLY RETURNING AN INDICTMENT. AS WAS THE CASE PRIOR TO THE 1970 CONSTITUTION, A DEFENDANT CAN BE ARRESTED AND HELD WITHOUT A PRELIMINARY HEARING AND THEN DIRECTLY INDICTED. FURTHER, THE AUTHOR NOTES THAT THE PROVISION CREATES A RIGHT WITHOUT A REMEDY. A CONVICTION UPON AN INDICTMENT OBTAINED IN VIOLATION OF THE RIGHT TO A PRELIMINARY HEARING IS NOT VOID, AND THE DISMISSAL OF AN INDICTMENT BECAUSE OF SUCH A VIOLATION DOES NOT BAR REINDICTMENT AND FURTHER PROSECUTION OF THE DEFENDANT. HOWEVER, THE AUTHOR STATES THAT THE SUPREME COURT HAS RECOGNIZED THE NECESSITY OF FASHIONING SANCTIONS TO ASSURE AND PROTECT THE NEW CONSTITUTIONAL RIGHT TO A PRELIMINARY HEARING, AND HAS CALLED UPON THE LEGISLATURE TO PROVIDE FOR SUCH SANCTIONS. (AUTHOR ABSTRACT MODIFIED)