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Chapter 1 – 1.02 The Criminal Justice System



1.02 The Criminal Justice System


Law enforcement operates within a structure we refer to as the Criminal Justice System. It is necessary to understand, however, that the police are not the only institution within the Crim­inal Justice System. Before we begin a further discussion of the crim­inal law as it relates to the police, we must be aware of the function of the police within the Criminal Justice System. The following insti­tutions are all elements within the Criminal Justice System:


A.            The Legislative Function


The Legislature or lawmaking body of any political subdivision, is responsible for enacting criminal laws. A state legislature, or the national congress made up of individuals elected by the people, the­oretically announces the will of the people by dictating in the form of legislative act what conduct shall be considered criminal in nature by society. It further determines the severity of the punishment for violating the law. The legislature operates within the con­fines of the constitutional grant of power. Therefore, any conduct prohibited by the legislature which is outside the constitutional framework may ultimately be declared null and void by the courts.


The legislature, in determining what conduct is to be considered criminal, must be precise and definite. Vague and in­definite laws, i.e., laws which cannot be understood to prohibit spe­cific conduct, are unconstitutional. By delegating the lawmaking function to the legislature, we thus ensure that the criminal law re­mains responsive to the needs of the people. A further discussion of the legislative role within the Criminal Justice System and, more spe­cifically its relationship with other branches of government, will be discussed in the chapter devoted to Constitutional Law.


B.            The Police Function


The police, as enforcers of the laws passed by the legislature, are, in effect, the front-line troops in the Criminal Justice System. It is the police who are primarily responsible for criminal in­take. By that, we mean that it is the police who are primarily respon­sible for bringing citizens into the Criminal Justice System.


Professional police organizations began in France and other European countries as early as the Seventeenth Century. England, however, did not begin to form police organizations until the 1800's. Prior to this time in England, private citizens were responsible for law enforcement. Each citizen was responsible not only for his own actions, but for those of others as well. When an individual violated a law, his neighbors or other citizens in the area had a duty to raise the "hue and cry." The "hue and cry" was designed to bring neighbors and other citizens together in an attempt to appre­hend the criminal. At one point in England's history, if the citizens failed to apprehend the criminal, they were fined by the Crown. Dur­ing the reign of Edward I (1272 - 1307), there appeared in England the first official police forces known as the "Watch and Ward." These forces were responsible for protecting property against fire, guarding the city, and arresting criminals during the nighttime hours. It was also during this period that constables became the chief law enforce­ment officers in English towns.


During this period there developed the office of the sheriff, whose responsibility was to assist the Crown in policing the county over which he presided. Constables, sheriffs and their deputies, assigned the responsibility for enforcing the law, were generally con­sidered in a very low light. They were often ill paid, ignorant and in­efficient .


During the Industrial Revolution of the 1700's, cities grew, in­cidents of crime rose, and law enforcement became much more complex. Fragmented police organizations were established by the Crown, at least in the cities, to help centralize operations. During the early 1800's, in the City of London alone, there were at least nine separate law enforcement agencies operating independently of one another. It was not until the 1820's that, under the direction of Sir Robert Peel, England's Home Secretary, a centralized and paid police organiza­tion took form. Thus, the "Bobbies," as they became known, were named after Peel, and became part of the metropolitan police unit in London.


As with so many things, law enforcement in the American Colo­nies generally took the form of and followed the pattern of the Eng­lish example. A constable was made responsible for law enforcement in the towns, and a sheriff was responsible for enforcing the laws within counties. While England dominated the Colonies, these offi­cials were appointed by the Crown. Subsequent to the American Revolution, in most areas of the country, they became elected offi­cials.


As communities expanded in America, the constable sworn to enforce the laws in these areas began to face the same problems en­countered earlier by constables in England. American cities thus be­gan to develop organized metropolitan police forces. One of the first such organized police forces was founded in the City of Philadelphia. The bulk of law enforcement activity continued to be conducted in the nighttime.


In 1838, Boston created a small police force whose function it was to enforce the law during the daylight hours. In both Boston and New York, however, the police function conducted during the day­time and that conducted during the nighttime were performed by separate entities, often resulting in rivalry between the two depart­ments. Thus, there was no coordination, either in terms of practical implementation or in terms of administration, between the daylight police-keeping function and the traditional night watch in either of those cities.


As society grew more complex, however, and people began to crowd into American cities, centralized police forces sprang up throughout the country. By 1900, cities in the United States were protected by a metropolitan police department. During this period, police salaries were probably the lowest of all government service. It was impossible to draw high caliber persons into the ranks of police agencies. For this reason, as well as others, police departments be­came lethargic and were not particularly known for their vitality or efficiency. Hence, there developed in this country a low respect for law enforcement generally.


Due to the lack of funds available to police agencies and be­cause of the low respect they achieved in the community, there was little money allocated to the formal training of police officers. Prior to the 1950's, most new police officers learned from the school of experi­ence rather than from formal police academies.


Today in the United States, there are close to 700,000 law en­forcement officers, representing 40,000 law enforcement agencies. There are some 200 state law enforcement agencies, 50 federal law enforcement investigative agencies, with the remainder local police agencies .


Law enforcement is only one part of the Criminal Justice Sys­tem. The police are not responsible and cannot cure the many social problems that contribute to the commission of crimes. The police have little or no control over conditions which have resulted in dis­orders within society by dissidents.


Sir Robert Peel, the founder of the British police system in the 1820's, announced certain principles of the police profession. The basic mission of the police today is the same as it was in Sir Robert Peel's time. That is, crime prevention. Earning the respect and cooperation of the citizens it serves is also a primary function of any police agency. Without respect and without the cooperation that flows from respect, police agencies, operating in relatively small numbers, would not be able to fulfill their basic goal of crime pre­vention and criminal apprehension.             In performing the function of crime detection and investigation, the police must render fair and impartial enforcement. When the police are not fair and impartial and become arbitrarily selective, it becomes impossible for them to operate with the respect and coop­eration of their citizenry.


Another principle of the profession, as outlined by Peel, is the use of physical force as a last resort. This basic tenet is still valid today. Federal and state Civil Rights.legislation punishes the police both in terms of civil liability and criminal responsibility for the excessive use of force in carrying out their duties. The basic indicia of police efficiency is the absence of crime and unlawfulness within the jurisdiction.


We generally regard police officers as nothing more than pri­vate citizens who are paid to perform the specific function of law enforcement. Laws of many states are still replete with references to the power of the citizen. A specific reference in this regard would be the power of the citizen's arrest.

                In its role of crime detection and investigation, the police in­vestigative process has three basic tasks: (i) finding facts; (ii) in such a way as to allow their introduction into evidence in a court of law; and, (iii) in sufficient quantities to meet legal standards of proof of guilt of a particular suspect.

                In performing the above investigative process, it is absolutely necessary that the police officers have a basic but thorough under­standing of the criminal law as it relates to such things as rules of evidence, laws of arrest, constitutional law, and search and seizure.

                The police, through criminal investigation, strive to clear cases by arrest of suspects. In this regard, statistics establish that police solve or clear by arrest fewer reported crimes against property than reported crimes against the person. The higher clearance percentage for crimes against the person are attributed, at least in part, to the ability of the victim to identify his assailant or the presence of witnesses at the scene of the crime. Crimes against property, on the other hand, generally are not witnessed and must be solved either on the basis of collateral criminal investigation or the development of scientific physical evidence against a particular suspect.

                Crime statistics do not and cannot take into account the large number of unreported or undetected crimes that occur in any given jurisdiction. One-half or more of all police arrests reported in the United States are concerned with driving while under the influence, disorderly conduct, loitering, vagrancy, and other similar minor offenses. The next largest category of arrests is for theft. There are relatively few vice arrests for such offenses as gambling, or prostitution. While we do not have exact figures, we know that unreported and undetected crimes occur in large and significant numbers. Those offenses which very often go unreported or undetected include: sexual misconduct, seduction, statutory rape, forcible rape, embezzlement, income tax evasion, shoplifting, gambling, prostitution, and of­ficial public corruption.

                Law enforcement is performed by individual human beings act­ing in the capacity of official police officers. This being the case, as much as the Criminal Justice System may attempt to control it, there exists in law enforcement the element of discretion.

                While discretionary law enforcement is not in and of itself harmful, law enforcement officers must be careful that in the exer­cise of their discretionary authority with regard to making arrests, they do not consistently discriminate against some particular class of citizens.

                Studies of police operations indicate that new or rookie police officers are more inclined to make arrests for misdemeanor violations, such as drunk or disorderly conduct, than are the hardened or sea­soned officers. This increased activity may be related to any one of a number of reasons including the enthusiasm of the new officer as op­posed to the cynicism of the older or more experienced officer.

                It is obvious that there are not enough law enforcement officers in this country to enforce all of the laws all of the time. It thus be­comes the duty of administrative department heads, and the politi­cians who direct the course of the police department, to determine what areas are going to be the subject of strict law enforcement. Hopefully, this process, which we call "selective enforcement", will have some basis in popular support and will be in some measure re­sponsive to the public need. Police departments, in determining allo­cation of manpower and funds, must constantly make a determina­tion as to whether significant portions of manpower and funds shall remain in the crime prevention patrol division or will be channeled to such specialized areas as drug interdiction, vice and intelligence, bur­glary investigation, robbery stakeout, tactical units, or the handling of juvenile offenses.

                While the police may, and do, exercise discretion (even though not officially sanctioned by the system itself), no police officer has the legal authority to (i) offer an offender immunity from prosecu­tion, or (ii) "unarrest" a person who has been placed in custody. Im­munity may be granted only by the prosecutor, and a person once arrested may only legally be "unarrested" by a judge of competent jurisdiction.


C.            The Prosecution Function


                                The prosecuting authority in any given jurisdiction is responsi­ble for filing formal charges against individuals brought into the Criminal Justice System by the police and for the processing of the criminal case through trial, appeal, or until such time as the in­dividual is convicted and sentenced or released on the basis of an acquittal .

                Prosecutors, depending upon the jurisdiction, may be referred to as Solicitor, District Attorney, or, as in the case of Florida, the State Attorney. Most prosecutors are elected officials, who serve a term of years at the pleasure of the electorate. The office of the pro­secutor is an extremely powerful and influential office. It has been said that the power of the prosecutor lies not so much in whether a person is charged with a criminal offense, as in the decision not to charge. It is at this level that the Criminal Justice System officially recognizes, and indeed sanctions, discretion. In most jurisdictions, no individual having been arrested by the police for a misdemeanor or felony may proceed to trial or be dismissed from the pending charge without some official action on the part of the prosecutor.

                Under the Constitution and the Laws of the State of Florida, the State Attorney, or his authorized assistant, is required by law to take sworn testimony from police officers and/or citizens regarding information relative to the filing of a criminal charge. Having taken testimony, the prosecutor then decides whether or not to file a criminal charge. If the decision is to file a charge, then the question becomes whether or not to file the charge originally placed against the defendant by the police officer. Once having made the arrest, the police officer remains a part of the criminal case only insofar as the officer may be a witness in the trial of the defendant. If, from the sworn testimony presented, the State Attorney determines that there is probable cause to believe that the defendant has committed a crime, and that there is a reasonable likelihood of successful prosecution, a formal charge is then filed in the case against the defendant. The for­mal charging document in most instances is referred to in Florida as an "Information."It is a document sworn to and signed by the State Attorney, reciting that based upon testimony taken under oath, there is probable cause to believe that on a particular date, a certain defend­ant committed a particular crime. By this document, the individual charged is then brought into the court system.

                Under Florida law, crimes, both misdemeanors and felonies, are investigated and the formal charge placed by the State Attorney in the form of an "Information." The only exception to this require­ment is that of an individual who is charged with a capital offense, i.e., an offense punishable by death, or life imprisonment without parole, such as murder in the first degree. In such a case, the State Attorney must empanel a Grand Jury, which considers the matter and determines whether to return an "In­dictment." In the case of capital offenses, the "Indictment" is the official charging document. The Grand Jury sits in the place of the State Attorney's assistant in this matter and hears sworn testimony from the police officers and witnesses involved in capital case preparation. If the Grand Jury determines, on the basis of evidence presented to it, that probable cause exists for the arrest of the defendant, then an "Indictment" will be returned. This "Indictment" is sometimes known as a "True Bill." In the event that the Grand Jury determines that there is not probable cause for the arrest of the defendant, the Grand Jury may refuse to indict for a capital offense and return what is commonly known as "Nc True Bill." For other offenses, the State Attorney, if not satisfied that probable cause exists for the arrest of the defendant, may decline to prosecute a particular charge brought by the police and, in this case, files what is known as a "No Informa­tion." Just as the "Information" or the "Indictment" has the effect of bringing an individual before the courts, the "No True Bill" and the "No Information" have the effect of releasing or discharging the defendant from custody. The prosecutor also acts in the position of legal adviser to the Grand Jury in the State of Florida.

                State Attorney investigators have the power of arrest within the circuit. State Attorneys in the State of Florida are elected and serve in judicial circuits. A judicial circuit may be comprised of one county or several counties. The prosecutor, along with the Grand Jury, is in a rather unique position in that he, along with the Grand Jury, may serve as the only check and balance against abuses and excesses committed by law enforcement within the circuit.

                The prosecutor, as an officer of the court, is in a rather uni­que position. Legally, morally and ethically, the prosecutor is con­cerned with seeking "justice." In pursuing this goal, the prosecutor may feel required to file a particular charge against a defendant and represent the State at the trial, seeking the conviction of the defend­ant. On the other hand, the prosecutor may feel that in the interest of justice, he or she must intervene after an arrest by law enforcement and decline to prosecute an individual charged with an offense by the police. We know from experience that once persons are taken into the Criminal Justice System and formal charges are filed by the prosecu­tor, there is a better than even chance of ultimate conviction. For this reason, if for no other, the prosecutor must exercise discretion in re­viewing police charges, to be sure that no individual is placed in jeop­ardy of conviction unless the evidence gathered by the police is suffi­cient to present a real jury question as to guilt or innocence. It is not uncommon to continue a criminal investigation after the prosecuting authority has determined to file charges against the defendant. If, at any point during the pendency of the criminal investigation, new evidence is developed which would indicate that the defendant charged is not guilty, or that the quantum of evidence is so slight that the defendant should not be placed in jeopardy of a conviction, it is the duty of the prosecutor to nolle prosequi or dismiss charges against the defendant.

                In pursuit of justice, the prosecutor may remain active in a case to the extent that "plea bargaining" is indicated. Traditionally, mat­ters concerning sentencing are left entirely to the discretion of the trial judge. However, Supreme Court decisions very clearly recognize a legitimate interest of prosecutors in the plea bargaining situation. Plea bargaining may take several different forms, but basically in­volves a conference between the prosecutor, the defense attorney, and possibly the investigating police officer, regarding the possibility of disposing of a case against the defendant without the necessity of trial. Lawyers recognize that within the framework of a jury system of justice, there is no such thing as an ironclad case. Defense attorneys recognize that, when dealing with a jury, no defense is an absolute guarantee of acquittal. Thus, cases may arise where it is in the inter­ests of justice, and both parties, to sit down and negotiate a settlement without trial.

                Plea bargaining may concern the sentence to be imposed, the agreement not to bring additional charges or to drop other exist­ing charges, or the agreement not to speak in aggravation at the sen­tencing of the defendant in return for his entering a guilty plea to the charge, thus relieving the State of the burden of conducting a trial. The Supreme Court has ruled that plea bargaining should be recognized and accepted as a part of the judicial system. Trials are costly and if all defendants who are charged with criminal offenses demand their constitutional right to a day in court, most judicial systems would crumble. The court's failure to accept and agree to be bound by the plea bargain agreement prevents or thwarts the success­ful completion of the bargain and usually a trial follows. Well over 90% of all criminal cases filed result in a disposition other than trial. The extent to which the case is resolved prior to trial, or resolved on the basis of plea bargaining, depends upon the particular jurisdiction and the philosophy of the prosecuting attorney and judges in that jurisdiction .


D.            Grand Jury


                The Grand Jury is considered part of the Criminal Justice System. Under the Federal Constitution, federal prosecutors are required to secure indictments before any formal charge may be brought for fed­eral felony offenses. In Florida, the use of the Grand Jury by the pros­ecutor for the purpose of returning indictments or formal charges is largely discretionary. Only when the prosecutor seeks to bring a capital offense charge which is punishable by death must he utilize the Grand Jury for purposes of return­ing a formal charge of the crime. Chapter 905 of the Florida Statutes deals with the Grand Jury and its role in the Criminal Justice System of the State of Florida. Florida law provides that Grand Jurors shall be selected on the same basis as are trial jurors. However, no elected public official shall be eligible to serve on a Grand Jury. A Grand Jury in each county is generally empaneled for a term of court, which means that in the normal course of events, two separate grand juries each year will be empaneled. However, upon petition of the State Attorney, who is the legal adviser to the Grand Jury, or the foreper­son of the Grand Jury acting on behalf of the majority of the Grand Jurors, a Grand Jury term may be extended by the Circuit Court beyond the term of court in which it was originally empaneled. This would be done in instances when a particular Grand Jury was involved in an on-going criminal investigation.

                In most jurisdictions, a Grand Jury has the authority to initiate investigations on an independent basis. Thus, the Grand Jury may serve as an additional check and balance factor with regard to law enforcement, the prosecutor, and elected public officials. Grand Jury proceedings are secret proceedings. The reasons for secrecy in Grand Jury proceedings are:


                1.             Secrecy is conducive to securing the attendance of witnes­ses to give testimony under oath which they might be re­luctant to give for fear of reprisals;

                2.             Grand Jurors may freely discuss evidence presented to them. Also, their vote as individual Grand Jury members remains secret, protecting them from reprisal or embar­rassment;

                3.             Persons appearing before the Grand Jury will be more likely to testify if their testimony remains secret;

                4.             To prevent the escape of persons being investigated by the Grand Jury prior to the time an indictment is returned; and

                5.             To protect the reputation of citizens and/or public offi­cials being investigated by the Grand Jury when, after all of the evidence has been presented, it is determined by the Grand Jury that there is no basis for a criminal charge.


                The role of the Grand Jury is different from that of the trial jury. The trial jury renders a verdict regarding the guilt or innocence of the individual on trial and decides issues of liability in civil trials. The Grand Jury, however, is charged with deciding under certain circum­stances when criminal charges should be brought. That is, when the legal process should be invoked against someone. Their job, very sim­ply put, in the main, is to pass upon requests by the Government or by the State for the return of indictments.

                We can trace the development of the grand jury back to around 1166.  It was used at that time for the purpose of making inquiry, and was made up of twelve tried and true men from the area.  It was used to accuse all who were suspected of crime, and they were questioned by the justice or sheriff.  Trial of persons charged, was trial by ordeal in those days.

                It was not until around 1500 that trial by jury replaced trial by ordeal.  Two juries were utilized in the process.  The accusatory (grand) jury was made up of 24 persons, while the trial (petit) jury was composed of 12 persons.

                An accusation could be initiated by the grand jury on its own, or by the Crown through its Justice of the Peace.  Witnesses were produced to present the case.  When the charge was initiated by the Crown, a charging document which was known as an indictment was placed before the grand jury.  It could either return it by signing it, or ignore it by returning a "no bill".

                Over time the grand jury developed rules of secrecy. It gained increasing independence from the Crown, and ceased to be a mere tool of the King.  It gained a reputation as a sword and a shield.  This was the reputation that our founding fathers relied upon in including the grand jury system in the process of bringing serious (felony) charges. By the early 1800's however, the system was under attack as being inefficient.  In 1859, Michigan became the first state to permit it's prosecutors to ignore the grand jury and charge directly by information.  Today, most states provide for the use of the information, but preserve some role for the grand jury.  The Federal Constitution does not require that the State's utilize the grand jury.

                Whatever its position, courts recognize that the grand jury possesses broad investigative powers, and is considered to be an autonomous body within the criminal justice system.  A person under investigation by a grand jury has no right to have his evidence presented, and the prosecutor often relies on the presentation of "synopsised" or hearsay evidence.  The defendant has no right to confront witnesses in the grand jury room, nor in most jurisdictions to have his lawyer in the grand jury room while he testifies.

                In Florida, the prosecutor serves as legal advisor to the grand jury.  The power of the grand jury to compel cooperation is exercised through its use of subpoena, the power of contempt, and the granting of immunity from prosecution.  In Florida, "use" immunity may be granted by the prosecutor, which has the effect of forcing otherwise privileged testimony from witnesses.

                While about a dozen jurisdictions allow a witness in certain situations to have a lawyer inside the grand jury room while testifying, others at least allow access to a lawyer outside the room while a witness is testifying.  The witness is permitted to leave the grand jury room to consult with his or her lawyer if desired.

                In Florida a witness may be permitted to have their lawyer present in the Grand Jury room during testimony. The lawyer is an observer only, and may not interfere or participate in the process.  This is not a constitutional right, but rather one granted by statute which may be repealed.

                Secrecy must be observed unless and until a court requires disclosure of Grand Jury Testimony for the purpose of:


                1.             Ascertaining whether it is consistent with the testimony given by the witness before the court.

                2.             Determining if the witness is guilty of perjury; or

                3.             Furthering justice.


                In Branzburg v. Hayes, 408 U.S. 665, 92 S. Ct. 2646, 33 L. Ed. 2d 626 (1972), the Supreme Court of the United States commented upon the role of the Grand Jury within the Criminal Justice System. Addressing itself to an attempt by the prosecuting authority to force news media personnel to give testimony before a Grand Jury con­cerning crimes they had observed, the Court stated:


                                The prevailing constitutional view of the newsman's privi­lege is very much rooted in the ancient role of the Grand Jury that has the dual function of determining if there is probable cause to believe that a crime has been committed and of protecting citizens against unfounded criminal pro­secutions. Grand Jury proceedings are constitutionally mandated for the institution of federal criminal prosecu­tions for capital or other serious crimes, and its constitu­tional prerogatives are rooted in long centuries of Anglo ­American history.


                                The Fifth Amendment provides that `no person shall be held to answer for a capital or otherwise infamous crime, unless on the presentment or indictment of a Grand Jury.'


                                The adoption of the Grand Jury in our Constitution as the sole method for preferring charges in serious criminal cases shows the high place it held as an instrument of justice. Al­though state systems of criminal procedure differ greatly among themselves, the Grand Jury is similarly guaranteed by many state constitutions and plays an important role in fair and effective law enforcement in the overwhelming majority of the states. Because its task is to inquire into the existence of possible criminal conduct and to return only well-founded indictments, its investigative powers are necessarily broad. It is a Grand Inquest, a body with powers of investigation and inquisition, the scope of whose in­quiries is not to be limited narrowly by questions of pro­priety or forecasts of the probable result of the investiga­tion, or by doubts whether any particular individual will be found properly subject to an accusation of crime. Hence, the Grand Jury's authority to subpoena witnesses is not only historic but essential to its task. Although the powers of the Grand Jury are not unlimited and are subject to the supervision of a judge, the longstanding principle that the public has a right to everyman's evidence, except for those persons protected by a constitutional, common law, or statutory privilege, is particularly applicable to Grand Jury proceedings.


                                Similar considerations dispose of the reporters' claims that preliminary to requiring their Grand Jury appearance, the State must show that a crime has been committed and that they possess relevant information not available from other sources, for only the Grand Jury itself can make this deter­mination. The role of the Grand Jury as an important in­strument of effective law enforcement necessarily includes an investigatory function with respect to determining whe­ther a crime has been committed and who committed it. To this end, it must call witnesses in the manner best suited to perform its task. When the Grand Jury is performing its investigatory function into a general problem area, socie­ty's interest is best served by a thorough and extensive investigation. A Grand Jury investigation is not fully car­ried out until every available clue has been run down and all witnesses examined in every proper way to find if a crime has been committed. Such an investigation may be triggered by tips, rumors, evidence offered by the prose­cutor, or the personal knowledge of the Grand Jurors. It is only after the Grand Jury has examined the evidence that a determination of whether the proceeding will re­sult in an indictment can be made.


                                                                                          End of Opinion


E.            The Courts


                Courts of Law are the forums within which legal issues are raised and decided. They form an integral and important part of the Criminal Justice System. The court system of the United States is, to a great extent, derived from the court system of England. In England, at the time of William the Conqueror in 1066, county courts were administered by sheriffs. William issued writs ordering the sheriffs to do justice in his name and subjected the court to strict control.

                During the reign of William the Conqueror the courts of En­gland were opened to the common people, so that by 1166, criminal laws were being "commonly or equally" applied in every county in England.

                No list of crimes was prepared. The judges decided each case on its particular merits, based upon folk law and community tradition.

                The acts recognized by these early courts as crimes came from the "folk law" or common sense of decency in each community. Acts regarded as crimes by all men alike included what became known as the common law felonies of treason, battery, kidnapping, robbery, arson, burglary, rape and murder. From these unwritten folk laws or common law felonies, Parliament later added statutory felonies.

                As the common law developed, it became necessary for courts and judges to settle disputes amongst individuals in the community. The American court system and system of trial by jury is one that is basically derived from court development in England. Under the United States Constitution, each individual is entitled to a trial by jury when charged by the government with a crime.

                Very early in man's development, he chose one or more of his community members to judge disputes and accusations, and deter­mine wherein the truth lay. Those persons chosen to be judges were usually the oldest, wisest, and the most experienced individuals in the community. Throughout history in various societies, many me­thods were utilized to determine whether an individual was guilty or innocent of a particular accusation. In Africa, for instance, Divine Intervention was sought for determining guilt or innocence in crim­inal proceedings, In England, trial by ordeal was used to determine whether an accusation was true or false. The ordeal would involve either a hot iron, boiling water, fire, or cold water. Later in the devel­opment of English history, trial by battle was utilized to determine guilt or innocence. It was thought that God would not allow the wrongdoer to triumph over the party in the right, and thus the loser of the fight was the violator in the law suit. In 1819, the English Parliament acted to abolish this last form of non-legal trial.

                Originally, the trial jury was composed of witnesses. The jury verdict was the result of their knowledge of the crime and its sur­rounding circumstances. Trial by jury probably originated with early Spanish kings as a form of inquest or inquiry and was introduced in­to England originally by the Norman invaders. The present form of the trial by jury dates back to the time of the Tudors. The functions of the modern jury include:


                1.             The determination of the credibility of the witnesses;

                2.             The weight and sufficiency of the evidence; and

                3.             The drawing of justifiable inferences from proven facts.


                A jury is empaneled in a criminal case to determine the truth with regard to the facts. The judge in a criminal proceeding deter­mines matters of law and instructs the jury at the conclusion of the trial on the law which is to be applied by the jury in determining the facts. The jury renders a verdict in criminal cases of guilty or not guilty at the conclusion of the trial after all of the evidence has been heard. The verdict, which literally translated means "speak the truth," is the final factual determination of an individual's guilt. Today's jurors are not witnesses. In fact, juries today are selected from individ­uals who know nothing about the case and are not prejudiced in their views of either the type of charge or against the individual on trial, or for or against law enforcement. The purpose in selecting a jury in a criminal proceeding today is to find individuals who know the least about the case and who appear to be open and fair-minded.

                The United States Judiciary Act of 1789 established the United States Supreme Court and paved the way for the establishment of such lesser federal courts as Congress may, from time to time, deem necessary. As a result, we have a separate structure of federal courts existing in the United States today. These federal courts co-exist and work alongside the various state court systems. Federal courts hear offenses which are violations of the United States Code. It is possible for an individual to do an act which is a violation of both the state law and the United States code. In these instances, the Su­preme Court has consistently ruled that an individual may be tried for the same act in each of the two courts.


1. Jurisdiction and Subpoena


Jurisdiction is the legal power of the court to handle a case.

                Appellate Jurisdiction‑‑ Appellate jurisdiction means that the court may only hear cases on appeal and may only rule on questions of law relating to a case.

                Original Jurisdiction‑‑Courts with original jurisdiction have the ability to empanel juries and try cases.

In order for a court to proceed in a particular matter, it must have jurisdiction of the following:

                Territorial Jurisdiction ‑‑ No state may enforce the criminal law of another state or sovereignty. The federal courts may only en­force criminal violations of the United States code or the federal law. In order for a court to try a case, it must have jurisdiction over the territory in which the crime was committed.

                Jurisdiction of the Person ‑‑ No court may try an individual for a crime until that individual is in the courtroom before the court. Jurisdiction over the person is usually accomplished by arrest and is sometimes aided by extradition.

                Jurisdiction of Subject Matter ‑‑ The court seeking to try an individual for a crime must have been granted by legislative authority, jurisdiction to try the particular type of crime involved. Some courts are empowered to try only misdemeanors, and may not be empowered to try felonies.
















                Subpoena ‑‑ A subpoena is a court order directing an individual to appear at a certain time and place. Failure to comply with a subpoena may result in a fine or jail sentence under the court's power of contempt.         Subpoena's may be issued by:


                1.             Court

                2.             Grand Jury

                3.             Prosecutor

                4.             Defense Attorney

                5.             State Administrative Agencies


                A subpoena may be served on an individual by:


                1.             A court approved process server

                2.             Deputy Sheriff

                3.             FDLE Agent

                4.             State Attorney Investigator


                A subpoena duces tecum is a subpoena which requires the individual to submit or bring with them certain items identified in the subpoena.






2. Court Structure




















                The federal court system is composed of the following courts:


                United States Magistrates Court‑‑This court has jurisdiction of federal petty offenses and is a court of original jurisdiction in these matters.                                               

                United States District Court‑‑ District courts are the federal trial courts‑‑courts of original jurisdiction with authority to try civil and criminal (felony) matters. Florida is divided into three federal districts‑‑the Northern District, Southern District, and the Middle District of Florida. Each district has its own United States District Court, hearing cases involving violations of the federal law which oc­cur within that jurisdiction.

                United States Circuit Courts of Appeal‑‑These are courts of appellate jurisdiction. They handle appeals from the United States District Courts. The nation is divided into circuits with courts to handle appeals from the United States Dis­trict Courts. The Federal Circuit Court of Appeals which handles cases from Florida is the Eleventh Circuit, located in Atlanta, Geor­gia.

                The United States Supreme Court‑‑The United States Supreme Court does have original jurisdiction in strictly defined areas. The bulk of the Court's work, however, deals with appellate jurisdiction in hearing appeals from cases arising out of state courts and federal courts.


                In addition to the above, there are various specialized federal courts that have been specifically established under the Constitution, including Patent, and Bankruptcy Courts among others.


                The court system operating within the State of Florida is as follows :


                County Courts‑‑County courts are established in each county in Florida, and are courts of original jurisdiction. These courts have jurisdiction to handle certain misdemeanor criminal offenses. In addition, judges of county courts have the authority to act as committing magistrates in criminal cases, and further are empowered to hear certain types of civil cases.

                Circuit Courts‑‑Circuit courts established within each judicial circuit within the State of Florida are empowered to hear cases in­volving juveniles, civil matters and criminal felony cases. In addition, appeals from some county courts may be taken to circuit court.

                District Courts of Appeal‑‑ Florida is divided into districts and each district has a District Court of Appeal. This court acts in much the same manner as the Federal Circuit Court of Appeals in hearing appeals of questions of law from cases originally tried in county court or circuit court.

                Florida Supreme Court ‑‑ The Supreme Court of Florida is basically a court of appellate jurisdiction and is empowered to hear appeals taken from circuit court cases and from District Courts of Appeal.


3. Trial Procedure


                Criminal trials follow strict rules of procedure and an outline of trial procedure appears below.

                Jury Venire‑‑Eligible citizens of the community, picked by a process of random selection, are called for jury duty for a period of time, usually serving for one day. Called to attend the court as pos­sible jurors, these individuals are available as a jury venire to serve as petit jurors for trials that are conducted during that week. Once ap­pearing in court, the jury venire is qualified to serve, i.e., a determin­ation is made that each prospective juror meets the statutory qualifi­cations for jury service prior to the time petit jurors are selected. As trial begins, the prospective juror is seated in the courtroom and it is from this group of citizens that trial jurors are picked.

                Voir Dire‑‑After the jury venire is seated in the courtroom and the judge has called the case by announcing the name of the defend­ant, the charge, and ascertaining that both the State and the defense are ready to proceed, prospective trial jurors are selected at ran­dom from amongst the jury venire. Depending upon whether a six or twelve person jury is needed, they are seated in the jury box to be subjected to voir dire examination by both counsel and the Court. The purpose of the voir dire examination is to give both attorneys and the Court an op­portunity to ask questions of prospective jurors in an effort to deter­mine if they can be fair and impartial in the consideration of the case. If it becomes apparent during the questioning of a particular prospective juror that, for some reason, he or she cannot be fair and impartial, that particular juror may be excused for cause. There is no limit to the number of prospective jurors who may be excused for cause by the Court.

                However, in addition to being excused for cause, prospective jurors may be challenged by either counsel. Each side in a criminal trial has a specified number of peremptory challenges. The number of peremptory challenges in criminal cases is set by statute in each jurisdiction. For example, in Florida each side has six peremptory challenges for each felony charge per defendant. Peremptory chal­lenges allow either side to excuse prospective jurors without giving a reason. As we will later observe, a peremptory challenge may not be used to discriminate against a class or race of person in the jury selec­tion process. However, once the peremptory challenges are used by one or both sides, a juror may only be excused upon permission of the Court for cause. As jurors are excused, either on the basis of a challenge for cause or a peremptory challenge, new prospective jurors, selected at random from the venire, are seated to take the place of the excused jurors and the voir dire examination is repeated with regard to the new prospective jurors. The voir dire procedure continues until both sides are satisfied that the six or twelve prospec­tive jurors seated will serve as fair and impartial jurors. When this determination is made, the jury is sworn to hear the evidence in the case and to render a verdict. It is at this point in a criminal jury trial that jeopardy attaches.

                Sequestration Rule‑‑The jury having been selected, the judge will normally call forward before the bench all of the prospective witnesses in the case. At this point, the judge will "invoke the rule." From this time forward, prospective witnesses will be barred from the courtroom and will be prohibited from discussing either the case or their testimony with each other, or with an attorney in the presence of another witness. Witnesses may discuss their testimony alone with either counsel. Violation of the rule may result in a contempt cita­tion for the witness and may result in his testimony being excluded from the trial.

                Opening Statement--The jury having been sworn, the prosecution now has an oppor­tunity to make an opening statement. The purpose of the opening statement is merely to present an outline to the jury of the testimony and the evidence which the State expects to adduce at trial. After the prosecutor has made an opening statement, the defense attorney, may make an opening statement or may waive, thus reserving the right to make such a statement at the conclusion of the State's case.

                The State's Case-In-Chief‑‑Since the State has the burden of proving the defendant's guilt, it must proceed to present witnesses and introduce evidence to help establish the guilt of the defendant.

                Opening Statement by the Defendant‑‑Defense counsel, at the conclusion of the State's case, normally will move for a directed ver­dict of acquittal. It is the State's burden to establish a prima facie case in the presentation of its case-in-chief. In other words, the State must prove that the crime charged was committed and must be able to show that each element of the crime has been proven. In addition, there must be evidence to indicate to the jury that the defend­ant is responsible for the crime. If the State has failed to show the existence of a crime, or has failed entirely to offer evidence tending to link the defendant to that crime, the defendant is entitled to a directed verdict of acquittal. If the judge directs a verdict of acquittal in favor of the defendant at this point, as a matter of law, the State has failed in its burden‑‑hence, the case should not go to the jury and the defendant is not guilty.

                If, however, the State, in its case-in-chief, establishes a prima facie case, the defendant may then proceed. If opening statement was previously waived, Defense counsel may at this point make an opening statement, outlining to the jury the testimony and the evidence that the defendant is going to present, or may comment on the weakness of the State's case.

                The Defense Case in Chief‑‑ At this point, the defendant may offer testi­mony tending to rebut the State's case. Remember that the defend­ant is always presumed innocent and, therefore, never has the burden of coming forward and presenting any evidence. A defendant may rest, i.e., produce no testimony or evidence at the conclusion of the State's case. The defense may merely present argument to the jury that the State failed in its burden to prove him guilty beyond and to the exclusion of every reasonable doubt. In the defense case-in-chief, the defendant himself may choose to take the witness stand, or he may call witnesses in his behalf to offer testimony rebutting the State's case.

                Rebuttal‑‑At the conclusion of the defense case, if any, the State may offer rebuttal testimony. The State is only permitted to produce new evidence, presented in an attempt to discredit testi­mony offered by the defense.  The Defendant may again move for a judgment of acquittal.

                Closing Statements‑‑ At the conclusion of the cases-in-chief, and rebuttal and sur-rebuttal if utilized, the attorneys for the oppos­ing sides are permitted to argue their cases to the jury. The order of closing argument is felt by most attorneys to be extremely impor­tant in the prosecution of a criminal case. In Florida, the rule is that the State leads off with its closing argument, followed by the defense closing argument.  Finally, the State may present the final closing argument in rebuttal to the defense argument. It is generally felt that having two opportunities at argument, and thus having the last word to the jury, can be extremely important in a criminal trial.  The justification for allowing the State two arguments, revolves around the fact that the law places the burden of proof of guilt upon the state.

                What is said by the attorneys to jurors, either in the form of opening statement or closing argument, is not to be considered by the jury as evidence. It is presented only to persuade the jury to ac­cept a particular view of the evidence and base a verdict thereon.

                Instructions By The Court On The Law‑‑At the conclusion of all evidence and argument, it is the function of the court to instruct the jury with respect to the laws of that particular jurisdiction. The jurors are expected to have listened to all of the evidence and testi­mony presented. At this point in the trial, they are instructed to listen to the court, and to apply the laws of the jurisdiction as read to them by the court, to the facts and the evidence they have heard in an effort to reach a decision in the form of a verdict. In addition to being instructed as to the legal elements of the particular crime with which the defendant is charged, they will receive instruc­tions regarding the burden of proof, the presumption of innocence, the weight and sufficiency of the evidence, the credibility of the wit­nesses, and the procedure they are to use in deliberating their verdict. Frequently, jurors will be told of the maximum penalty which may be imposed if they find the defendant guilty. However, they are also instructed that they are to disregard the consequences of their ver­dict, as it is the function of the court to impose sentence and their duty is merely to ascertain guilt or innocence.

                The Verdict‑‑ After receiving all of the evidence and instruc­tions on the law, the jury will deliberate to reach a verdict. They must return to the courtroom with a signed verdict form indicating guilt or innocence. In order for a jury to return a verdict, all of the jurors must agree. Unanimous jury verdicts are required in most jurisdictions. A six person jury verdict must be unanimous in a state trial for conviction of non-petty offenses. Burch v. Louisiana, 441 U.S. 130, 99 S. Ct. 1623, 60 L. Ed. 2d 96 (1979). Where a unanimous jury verdict is required, however, and the jurors cannot all agree on a verdict of guilt or innocence, the jury is said to be "hung." A hung jury results in a mistrial which will gener­ally permit the prosecution to re-try the defendant at another time before a different jury panel. Assuming that the jury reaches its ver­dict, the verdict is received by the Clerk of the Court and is published to the court. If the jury finds the defendant not guilty, the court has no alternative but to release the defendant forever from that charge. However, if the defendant is found guilty of the crime charged, or of a lesser included offense, the court then dismisses the jury and has the additional duty of sentencing the defendant pursuant to the laws of the jurisdiction. Prior to imposing sentence, the judge may order what is known as a pre-sentence investigation (PSI). This in­vestigation, carried out by the Parole and Probation Commission, will concern itself with the crime charged, the defendant, including his background, social history, and interviews with friends and ac­quaintances, thus providing the judge with information that may be helpful in determining what sentence to impose upon the defendant. There is no legal requirement that the judge follow the recommenda­tions of the pre-sentence investigation.

                Sentencing-- The court pronounces sentence upon the defend­ant after a finding of guilt by a jury of his peers. It must be understood at this point that an individual is not convicted of any offense, either at the time he enters a plea of guilty to that offense, or at the time a jury renders a verdict of guilty. It is necessary for the judge to announce a formal adjudication of guilt before the defend­ant can be considered to have been convicted.

                The judge has basically two alternatives: he may allow the individual to remain free in society, subject to re­strictions placed upon him by a term of probation under the super­vision of the Parole and Probation Commission; or, he may adjudi­cate the individual guilty and sentence the defendant to a term, either in the county jail in the case of a misdemeanor, or in the State prison in the case of a felony. Whether or not the individual who is placed on pro­bation is adjudicated guilty at the time of sentence is a matter of discretion for the court. However, in most cases, individuals placed on probation are not adjudicated guilty. Florida employs sentencing guidelines which limit the range of sentence which may be imposed by the Judge in a given case.

                Appeal -- If an individual is acquitted by a jury, or a directed verdict of acquittal is made by the judge, the State has no grounds for appeal. This is consistent with the double jeopardy provisions of the United States Constitution, which basically provide that the Government has only one opportunity to prosecute an individual on a particular criminal charge. However, if the defendant is found guilty, the verdict may be appealed to an appellate court.

                During the pendency of this appeal, the defendant, with very rare exceptions, is entitled to remain free on what is known as a sup­ersedeas bond. The amount of the supersedeas bond is set by the tri­al judge, taking into consideration basically the same factors that would determine the amount of bond to be set during pendency of a criminal trial. Appellate courts, may decline to review a case sent to it by writ of certiorari. The writ of certiorari is a discretionary writ applied for by defendant's counsel, pointing out alleged errors of law committed by the trial court, which prejudiced the defendant and may have influenced the jury in reaching a verdict of guilty. Since it is a discretionary writ, the court may choose to hear the writ or decline to accept the case on appeal. There are a few instances where an individual has an absolute right to appeal, i.e., the appellate court must consider the appeal and rule on the lower court's decision. 








































A defendant has an absolute right of automatic appeal in Florida in any case where the death penalty is to be imposed. Appellate courts, in determining the disposition of a case that they accept for review on appeal, pass only upon questions of law, not questions of fact. An appellate court does not second guess the jury in its verdict and does not, by virtue of accepting the appeal and reversing a case, declare a jury was wrong in reaching the verdict it did. Cases are reversed by appellate courts based upon errors of law usually relating to the admissibility of evidence which are made by the trial judge during the course of the trial and which the appellate court feels have prejudiced the defendant.

                Cases that are reversed by appellate courts do not automatically result in the release or discharge of the defendant from the crime charged. With but very few exceptions, the reversal of a lower court's decision by an appellate court merely means that the defendant must be re-tried by the prosecution, and this time the lower court must conform to the law as enunciated by the appellate court. As a practi­cal matter, because appeals sometimes continue for extended periods of time, it may become impossible for the prosecution to proceed when a case has been reversed. During the pendency of an appeal, evidence may be lost, or witnesses essential to prosecution may dis­appear.

                Appeals are generally taken first to the intermediate court of appeals. In Florida, this would be the District Court of Appeal. If the District Court of Appeal refuses to grant the writ of certiorari from the lower court, or if it affirms the decision of the lower court, a writ of certiorari may be taken to the Supreme Court of the State of Florida, in an attempt to have that court review the trial court's conduct. Only when all state remedies have been exhausted and the defendant claims that a basic federal constitutional right has been violated may he then proceed to the federal court system to seek appellate relief.


4. Personnel


During the course of a criminal trial, there are various personnel involved whose function is explained below.


                The Judge‑‑The judge, sometimes referred to as the court, pre­sides over the course of the trial, rules on questions of law‑‑usually pertaining to the admissibility of evidence or testimony‑‑instructs the jury on the law at the conclusion of the case and, if there is a conviction, has the responsibility for sentencing the defendant.

                The Court Clerk‑‑The court clerk is assigned the responsibility of keeping minutes of the trial proceeding. In addition, the court clerk assumes custody of all physical evidence and documents sub­mitted into evidence during the course of the trial. The court clerk also publishes the verdict of the jury.

                The Court Reporter ‑‑ The court reporter is responsible for making a verbatim transcript of everything that is said in open court pertaining to the particular matter at issue. The reason why a ver­batim transcript is necessary is basically twofold:


                1.             If, during the course of the trial, or during the jury's de­liberations, the judge, the lawyers, or the jurors have a question regarding the testimony that has been offered by a witness, it is possible for the court reporter to read back verbatim the testimony of that witness, thus eliminating guesswork.

                2.             If the case is appealed to an appellate court, a verbatim transcript of the proceedings may accompany that appeal. Obviously, appellate court judges were not present during the trial and, therefore, have no independent knowledge of what was said, what arguments were made by counsel, or what decisions were rendered by the judge. The verbatim transcript is an essential part of any appeal in that it per­mits the appellate court judges to deal intelligently with is­sues of law presented to them for their consideration.


                The Bailiff‑‑The bailiff, generally a deputy sheriff, is responsi­ble for maintaining order in the courtroom, bringing forward witnes­ses to give testimony, taking charge of the jury during the pendency of the trial, and taking charge of the defendant if he is in custody during the course of the trial, or if convicted, is remanded to custody at the conclusion of the trial.

                The Prosecutor -- The prosecutor has the responsibility in our adversary system of justice of presenting the State's case against the defendant and representing the people of the jurisdiction in the mat­ter.

                The Defense Attorney ‑‑The duty of a defense attorney is to protect the legal rights of the client and to force the State to carry its burden of proving the defendant guilty beyond and to the exclusion of every reasonable doubt.

                The Defendant‑‑While it is never the burden of the defendant to prove his innocence or to offer any testimony in his own behalf, he must be present before his trial can proceed. However, if once within the jurisdiction of the court and actually present in the court­room, the defefendant leaves, or engages in conduct which is so disruptive as to prevent the orderly administration of justice, then the defendant may be removed from the immediate area of the court room and the trial may proceed in his absence.

                The Jury‑‑The jury is the trier of fact. It is the duty of the jury to consider all of the evidence and testimony presented and to make a determination based upon that evidence and testimony. It appl­ies the laws of the jurisdiction as given by the judge, to reach a verdict of guilt or innocence. In reaching this verdict, the jury, and the jury alone, determines the credibility of the witnesses who appear before it. Thus, the jury is instructed that it is to assume all persons appearing before it have testified truthfully. If there have been conflicts in the testimony which the jury is unable to resolve, it may rely upon that testimony which it believes to be true in reach­ing a verdict and disregard entirely that evidence or testimony which it does not believe is true. In addition, the jury is instructed that in determining the credibility of witnesses, it may rely upon the follow­ing factors:


                1.             The demeanor of the witness on the witness stand;

                2.             The testimony of the witness in light of all of the other evidence presented in the case;

                3.             The apparent intelligence of the witness;

                4.             The apparent interest of the witness in the outcome of the case; and

                5.             The witness' ability to know that about which he or she is testifying.


                In addition, the jury determines the weight and the sufficiency of the evidence. The State, having the burden to prove the defend­ant guilty beyond and to the exclusion of every reasonable doubt, must convince the jury that it has carried that burden.




















F. Corrections


                In any jurisdiction, the prison system or rehabilitative facili­ties are part of the Criminal Justice System. Prisons and jails are gen­erally regarded to be part of the corrections system. A prison is a place maintained by public authority for the detention of those con­fined under legal process, whether criminal or civil, and regardless of whether the imprisonment is for the purpose of insuring the protec­tion of the prisoner to answer in future legal proceedings, or whether for the purpose of punishing an offender who has been convicted and duly sentenced for a crime. Individuals committed to prisons by operation of the law are known as prisoners.

                Prisoners sentenced to county jail are committed to the custody of the sheriff, who is the custodian of the county jail. Prisoners com­mitted to state prison are committed to the custody of the state pri­son system. Persons sentenced for misdemeanor violations serve their sentence in the county jail. Persons sen­tenced for felony crimes generally serve their time in a state penal institution. Individuals who are in custody awaiting trial on a crimi­nal charge are confined to the county jail in the county in which the trial is to be held.

                A County jail is a local facility operated by the county holding persons prior to trial or persons serving misdemeanor sentences. 

                A Prison is a state operated facility holding convicted felons.

                Other components of the corrections system include treatment and evaluation facilities as well as probation and parole services.


























                The major philosophies of corrections are:


                1.             Punishment

                2.             Deterrence (restraint)

                3.             Rehabilitation

                4.             Restitution


                No prisoner enjoys a constitutional right to be rehabilitated.  However, the state's obligation and responsibility to the prisoner precludes the imposition of cruel or unusual punishment.

                As a general principle of law, a prisoner is entitled to reasonable protection while in the custody of the sheriff or the State. This means, in essence, that a jail or a prison facility must be kept in a rea­sonably habitable condition. There must not be undue or harsh dis­ciplinary punishment, and the constitutional rights of prisoners must be observed by the prison authorities. However, the sheriff or the prison authorities have a great deal of latitude with regard to estab­lishing rules and regulations within a particular facility to provide for security.

                Probably no other area within the Criminal Justice System is in such need of change and reform as the prison systems of this nation. Prison reform, while the concern of every citizen, should especially be the concern of the law enforcement officer. It is, after all, the law enforcement officer who will ultimately have to confront a repeat offender who, if not rehabilitated by the prison system may do violence to the person of the officer rather than return to an insti­tution. There have been numerous articles in this country recently dealing with the high rate of recidivism amongst prisoners released from custody. The recently released prisoner from a penal institution has usually sharpened his or her talents for criminal activity while in the state prison system, and thus becomes a much more effective criminal, is much more cunning, and is potentially much more dangerous to the investigating officer.

                While the police officer cannot single-handedly ef­fect prison reform, law enforcement must be acquainted with the problems attending prison systems throughout the country. It is highly recommended that all police officers visit the major penal institutions of their jurisdiction to become familiar with the environment that so many of the people they deal with will be exposed to after arrest.

                One of the major problems we have with regard to our prison system is that those of us involved in the Criminal Justice System cannot agree on a general philosophy regarding the incarceration of prisoners. There was a time in our historical development and the historical development of the common law when a prisoner who was sentenced to be incarcerated in a prison facility was told he or she was being incarcerated as a matter of retribution. In other words, society was punishing the person in retribution for an act or a wrong that had been committed against it. Persons committed under this concept of jus­tice neither expected nor were promised rehabilitation. They fully realized and expected that the purpose of their imprisonment was punishment. There are some jurists who feel that we incarcerate pris­oners who have violated the rules of society basically as a deterrent. We are attempting by incarceration not only to deter the particular individual imprisoned from committing additional offenses at a later time, but also in an effort to deter others who may find themselves in similar situations from breaking the law. This particular theory of incarceration is under attack, both by those who wish to use the retri­butive theory of punishment and by those who now subscribe to an approach known as the rehabilitative theory.

                Those who follow the rehabilitative theory of incarcera­tion or imprisonment tell an individual who is sentenced that he is being sentenced to the state prison system for his own good. By his conduct, he has exhibited his inability to get along in society and to abide to the rules of his fellow man. A term in state prison, he is told, will make a better man of him and will enable him to return to society in a condition conducive to successful cohabitation with his fellow citizens. The individual is told that he will have the opportuni­ty to continue his education, and possibly complete it. He may en­gage in vocational rehabilitation programs which will enable him to become a useful member of society upon his discharge from the institution.

                Our optimism is rarely substantiated by the real conditions exist­ing inside of the state or federal penal system. As a result, an individ­ual who first enters a penal institution very early becomes disillu­sioned and disenchanted with the society that sent him there and may view the jurists and all persons connected with the system as liars and hypocrites. Prison systems have several built-in handicaps. Most state prison facilities were constructed in rural areas of the state. In essence then, in many states the prison is located in a rural area far away from cities and is the sole livelihood of the surrounding area. Isolating facilities in this manner has presented several pro­blems, not the least of which is that the prisoner loses contact with family and friends. The bulk of state prison inmates come from the urban areas which are generally located many miles away, thus discouraging continued visitation by family and friends. In addi­tion, prisons require the use of professionals such as doctors, den­tists, nurses and teachers, if there is to be any meaningful voca­tional rehabilitation program. Locating prisons in isolated, remote, rural areas has a chilling effect upon recruiting such competent professionals. The prisoner who enters an isolated prison facility loses contact with family and friends and finds that vocational rehabilitation is not available to him, not only because the legis­lature has not allocated sufficient funds to establish the program, but also because competent teachers will not enter a system which requires them to live with their families in an undesirable area. The prisoner then becomes disenchanted with the system itself. He fur­ther is placed at the mercy of a system where adequate dental or physical medical attention may not be available to him on a daily basis as needed.

                While exact figures are not available, it can safely be said that a large percentage of any prison population is in need of either remed­ial medical attention, cosmetic surgery, dental care, or psychiatric or psychological treatment. The failure of the system to provide, for instance, adequate psychiatric or psychological help to the inmates of a state prison can only serve to compound and aggravate an already existing problem in the minds and personalities of the individual prisoners. In an effort to combat these problems, most states are attempting to decentralize prison facilities. The problems attendant with decentralization are basically problems relating to the reluc­tance of the community at large to accept a penal institution near population centers. Fears of escape and fears of inmates mixing with the general population in work release and furlough programs have slowed the decentralization of prison facilities.

                Prison facilities themselves throughout the country suffer from one common problem: overcrowding. There are just too many prisoners confined in outdated and antiquated facilities. We can point with some justification, to the increase in size of our population cen­ters as a source of crime. This proposition is magnified a hundred­fold in a situation where human beings are locked up together in overcrowded conditions. Incidents of assaults and sexual assaults con­tinue to rise in prison facilities that are accommodating more prisoners than they were designed to handle. The question then becomes: is the answer to the dilemma to build more prisons, or to find ano­ther acceptable alternative to incarceration? Different jurisdictions are taking different approaches to this problem, but no definitive answer has yet been reached by any of the so-called experts in this field .

                In spite of the best efforts of prison administrators throughout the country, it is a regrettable fact that there does exist in the prison systems of this country today occasional corruption on the part of the officials charged with maintaining custody of convicted criminals. This corruption is noted by the prisoners and, once again, causes them to have feelings of recrimination toward the society that has placed them inside the penal institution.  The federal government has officially abandoned the philosophy of rehabilitation in federal prisons, concluding that it just doesn't work.

                The Supreme Court of the United States, while recognizing the need to maintain security in prison facilities, has taken an increas­ingly liberal view with regard to the rights of prisoners. Much as the court did in the Mirandadecision, which was designed to profession­alize and change the direction of law enforcement, the Supreme Court appears to be heading for a confrontation with the prison authorities of this nation. If meaningful prison reform is not forthcoming, one can expect Supreme Court decisions so delineating the rights of the individual prisoner that prison reform will become a necessity.

                It must be recognized that there are some human beings who, under the present system, cannot be rehabilitated. Precautions must be taken to isolate these individuals from society and keep them iso­lated for as long as possible. Along these lines, one of the great dang­ers of overcrowded prison facilities is the concept that when one pri­soner enters the front door, another prisoner must be released out of the back door to make room for him. This type of pressure causes the early release of prisoners, not otherwise justified when one looks at the crime charged or the individual paroled. In order to have mean­ingful rehabilitation, not only must the facilities be available and the personnel available inside the prison facility, but the prisoner himself must be retained for a sufficient period of time for the rehabilitation process to be fully effective. A system that operates under pressure such that prisoners are released out of necessity of numbers is not of benefit to society or the prisoner.


G. Inmate Rights and Responsibilities


                All citizens of the United States enjoy certain due process rights under the Constitution of the United States and of the various states.  The degree to which prisoners are afforded due process rights is a function of their status. Inmates in county jail being held prior to trial must be dealt with differently since there is a continued presumption of innocence than prisoners who have been convicted of their crimes and are serving time either in the county jail for misdemeanors or in the state prison for felonies. 

                The operation of the county jail in terms of the rights of pre-trial detainees is such that these prisoners are afforded latitude with regard to visitation.  In all jail or prison environments an overriding concern of the prison administration is to provide adequate security.  Therefore, in attempting to abridge any due process or constitutional rights of prisoners the administration must be able to causally connect the action to the concern for security.

                In the county jail environment administrative action may be taken against the prisoner, however, such action cannot be taken exclusively for the purpose of punishment without adherence to due process rights.

                In all instances an accused inmate has the right to the following:


                1.             To be advised of the nature of the accusation against him.

                2.             To be furnished with a written specification of the charges.

                3.             To be able to confront witnesses at hearing and to be allowed to call witnesses on his own                          behalf.

                4.             To be heard in person.

                5.             To have a speedy hearing.


                Pre-trial detainees must be permitted reasonable privileges with regard to visitation and visitation may not be arbitrarily restricted.  Convicted prisoners serving time in a prison facility, however, have visitation subject to the discretion of correctional officials.

                Prisoners are protected by the Eighth Amendment from cruel and unusual punishment.  Matters which the courts have considered may constitute cruel and unusual punishment include the following:


                1.             Lack of sanitation.

                2.             Inadequate nutrition.

                3.             Inadequate rehabilitative programs.

                4.             Inappropriate housing assignment or classification.

                5.             Inadequate or poorly trained staff.

                6.             Gross overcrowding.


                The right to object to search and seizure is extremely limited in the prison environment.  There is no reasonable expectation of privacy.  However, searches cannot be conducted solely for the purpose of punishment or harassment.  All searches must be connected to a reasonable, legitimate security interest.  It is not necessary that the prisoner be present during the conduct of a search.  The only possible claim with regard to privacy would be with regard to legal documents or papers within the cell of the prisoner.

                The Federal Courts have in the past been involved in class action suits by prisoners dealing with overcrowded conditions and other matter alleging cruel and unusual punishment.  Where the state has exhibited a "deliberate indifference" which the United States Supreme Court has now defined as the equivalent of criminal negligence, the Federal Courts have offered relief and indeed have been involved in monitoring state reforms of prison systems. However, for the past several years the Federal Courts have been extremely reluctant to become so involved in the state process as the states have assumed more and more responsibility.

                Freedom of speech is recognized within the prison facility allowing prisoners to print newspapers and operate radio stations and officials even tolerate criticism so long as it does not breach the legitimate security interests of the institution.

                In addition, prison authorities must provide medical treatment to the inmates which is on a par with that treatment generally available to the citizens of the community at large.

                As the prison population ages the issue of medical care will become more and more a matter of litigation and of concern and expense to the states.

                Religious freedom may be practiced by the prisoners, however, once again security interests prevail.  The wearing of facial hair, matters of hygiene, as well as the wearing of jewelry or other religious objects is a matter reasonable control by the prison authorities.  At this time the law recognizes the prisons must provide separate services and spiritual guidance for individuals who are Jewish, Moslem, Catholic or Protestant. 

                Excessive punishment of prisoners has been determined by the court to include such matters as



excessive fines, cruel and unusual punishment and indefinite imprisonment.

                All inmates have basic constitutional and due process rights with regard to the following:


                1.             Access to an adequate law library.

                2.             Freedom of speech.

                3.             Free access to legal counsel including help from other inmates in the preparation of legal                        documents.

                4.             Freedom from excessive punishments.

                5.             Freedom from harassing search and seizure.

                6.             Freedom to worship and exercise religious beliefs.

                7.             The right to exercise in fresh air.

                8.             The right to adequate medical treatment.

                9.             The right to send and receive mail including legal correspondence.

                10.          Minimal nutritional standards with regard to food service.


                Inmates must be permitted free access to legal counsel and corrections personnel may monitor such contacts but not monitor the conversation verbatim.

                Prisons have a right to censor mail on a reasonable basis, which includes pornography, and to review mail to be certain that a proper return address is provided for outgoing mail so that it can be identified as coming from a prison facility, reviewing mail for plans relating to escape or breach of security and for contraband.

                Incoming mail may be similarly censored and contraband items may be interrupted.  Inmates have a right to be notified when outgoing or incoming mail is censored or retained or returned by prison authorities.

                Mail which is marked legal mail must be opened and inspected in the presence of the inmate.


H. Correctional Officer Rights and Responsibilities


The correctional officer's primary responsibility is the supervision, protection, care, custody and control of inmates within a correctional institution.

                Maintaining order and protecting the integrity and security of the jail are primary considerations.

                Inspection of legal mail for contraband must be accomplished in the presence of the inmate, but searches may be conducted of the inmate's area without the inmate being present.

                Correctional officers have the authority to segregate prisoners in isolation status so long as there isultimately a hearing wherein minimal due process is observed.  It is not necessary to hold the hearing prior to movement however, if the prisoner poses a present danger to himself, to others or to the institution.

                Correctional officers must maintain a log of all disciplinary actions.  The use of any force at whatever level must be documented by the officer.

                With regard to medical events correctional officers should respond immediately by reporting all medical complaints by prisoners and must act with reasonable dispatch in the treatment of medical emergencies. 

                Visitors coming in to the jail are doing so voluntarily and thus are subject to search by electronic searching devices prior to being allowed into the facility.

                Correctional officers enjoy a bill of rights provided in Florida Statute 112.532 which include the following:


                1.             Rights while under investigation.

                2.             Complaint review boards.

                3.             Civil rights.

                4.             Notice of disciplinary action.

                5.             Protection against retaliation for exercising their rights.


I. Parole and Probation


                The parole and probation departments of the various jurisdic­tions are part of the Criminal Justice System. A judge who does not wish to incarcerate an individual in a prison facility may exercise an option and place the defendant on probation. Placing an individual on probation for a period of time fixed by the judge allows the individual to remain free in society, subject to restrictions placed upon him by the court and/or his probation officer. The probation of­ficer supervises the defendant and, upon successfully completing the term of probation, will be released from the jurisdiction of the probation department and thus escapes a prison sentence for the original offense.

                Community Control is a term applied to probation for juveniles or House Arrest for adults.

                Prisoners who are released from the state prison prior to their normal termination date may be paroled to an officer of the Parole and Probation Department and thus begin a term of their sentence outside of the prison walls, under restrictions similar to those placed upon probationers but with terms set by the Department of Corrections. In either case, the system assumes that the indi­vidual placed under the custody of parole and probation will re­ceive adequate guidance, rehabilitation and supervision, so as to prevent the commission of other crimes against society.

                Too often, however, this goal is not achieved. Parole and Probation Departments suffer from many of the same fiscal mone­tary problems as do prison facilities. No legislator ever received sig­nificant votes from his constituents for allocating large sums of tax money, either to improve prison facilities or increase the staffs and raise salaries of parole and probation officers. As a result, parole and probation officers often carry a caseload of such numbers that mean­ingful supervision and guidance is impossible. For the probationer especially, a term of probation may ultimately be worse than a sentence to the state prison. Most individuals who commit crimes and are placed on probation are in need of supervision and guidance. When a judge places an individual on probation, a privilege is being granted. Except for this privilege, the individual would be sentenced to a term in the state prison. The jurist usually warns the individual, however, that failure to successfully complete the term of probation will result in a significant term in the state prison. When the individual is probated, but the probation officer has a caseload that prevents close contact with the probation­er, the individual does not receive the supervision which is either needed or expected by the court. The result may very well be that absent supervision and guidance, the individual will continue to vio­late the law and ultimately will be brought back before the court on a violation of probation charge. Then, "acting without mercy," the judge will sentence the individual in most instances to a signifi­cantly lengthy

prison term for the original offense, taking the view that having been given a chance and failed, the defendant needs to be incarcerated, not so much for rehabilitative purposes as for deterrence or retributive purposes.

                Whether or not this view on the part of the jurist is a legitimate one is the subject of debate. You cannot expect an individual, it is said, to complete successfully a term of probation when the supervision and the guidance needed is not available.  On the other hand, it is argued that we cannot continue to coddle all criminals. An indivi­dual should have the ability to walk the straight and narrow without the supervision of a parole and probation officer and, if unable to do so, should be incarcerated