The American JudiciaryBaldwin, Simeon E. (Simeon Eben)
History
The American Judiciary
Baldwin, Simeon E. (Simeon Eben)
Courts -- United States; Law -- United States -- History
The American system of criminal procedure rests on the principle
that the government should decide on the propriety of beginning
all prosecutions, and then should bring and maintain, at its own
expense, such as it may deem proper.
The first step ordinarily is the filing by an informing officer
of a written complaint in the office of some court or with some
magistrate, upon which a warrant of arrest issues as of course.
In some jurisdictions original informations in a trial court, as
distinguished from indictments, can only be filed by leave of
court first obtained. Such is the rule in the courts of the
United States.[Footnote: United States _v._ Smith, 40
Federal Reporter, 755.]
There is no such preliminary consultation with judicial officers
as characterizes European criminal procedure. The prosecuting
officer assumes the entire responsibility of initiating the
prosecution and of giving it the particular form that it may
assume. He commonly acts only on such matters as are officially
brought to his attention by constables or other officers of
police. It is rare that the party injured by an offense
complains to him personally. Hence many of the lesser offences
go unpunished, particularly in large cities, because the police
fail to report them, on account of favoritism or corruption.
The warrant refers to the complaint for its support. Between
them, the offense charged, the person accused, and the thing to
be done by the officer who is to make service must be
particularly stated. "General warrants," that is, warrants of
arrest or seizure, not specifying the person who is to be
arrested, nor the particular place where the seizure is to be
made, are expressly forbidden by the fourth amendment of the
Constitution of the United States as respects federal courts, and
as respects those of the States, are generally prohibited by
their Constitutions.
Any private individual may, by night or day, arrest without
warrant one whom he sees committing a felony or a breach of the
peace or running off with goods which he has stolen. If he knows
that a felony has been committed and has reasonable grounds for
suspecting that it was the act of a certain person, he may arrest
the latter, although without personal knowledge of his guilt.
A sheriff, constable, or other peace officer may arrest without
warrant any one whom he has reasonable ground for suspecting to
be guilty of a felony, although it may turn out that no such
felony was ever committed. For any ordinary misdemeanor he could
not, at common law, arrest without a warrant, unless he
personally witnessed the wrongful act or was near enough to hear
sounds indicating what was being done.
Public-domain text, read in full here on John Shaqi.
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