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62 J. Crim. L. Criminology & Police Sci. 17 (1971)
Preliminary Hearings in Homicide Cases: A Hearing Delayed Is a Hearing Denied

handle is hein.journals/jclc62 and id is 27 raw text is: TnE JournAL oF CwMIrL ,LW, COBIXOLOOT AND POLICE SCIENCE Copyright 0 1971 by Northwestern University School of Law PRELIMINARY HEARINGS IN HOMICIDE CASES: A HEARING DELAYED IS A HEARING DENIEDt WILLIAM H. THEIS* Although statutory enactments envision a speedy preliminary hearing for the suspect charged with a felony, judges generally deprive the homi- cide suspect of any such hearing. Courts grant the county prosecutor whatever continuances he desires until he decides to seek an indictment or dismiss the police charges. The unfortunate con- sequence of this practice is that the average homi- cide suspect, ineligible for bond, waits in jail until an official determination is made that there is probable cause to hold him for further prosecution. This practice imposes on the public the expense of long incarceration for those who will never come to trial. In addition, it imposes great personal ex- pense upon individuals eventually cleared and released as well as upon those who must anxiously wait for the finding that there is some basis for further prosecution.' Thus, the preliminary hearing area is ripe for beneficial change. To that end, this comment examines the Illinois law of preliminary hearings with special attention to the prosecutor's power to avoid them. It further presents the results of a field study of the pre- liminary hearing in homicide cases, which indicates that the prosecutor does in fact, at great expense to defendants, freely exercise his power to avoid them. With this background, possible legal theories to change the present practice will be explored; and legislation that might serve as an alternative to judicial action will be suggested.2 t The focus of this article concerns proceedings in Cook County, Illinois. Cook County, however, is not unlike other large metropolitan areas in its procedures and problems. The author is grateful for the assistance of Professor James B. Haddad of the Northwestern University School of Law. * A.B., J.D., teaching associate, Northwestern University School of Law. 'This practice also forecloses one avenue of pretrial discovery of the prosecutor's case. On the other hand, whether a preliminary hearing should allow pretrial discovery remains open to serious question. See, e.g., United States v. Amabile, 395 F.2d 47, 53-54 (7th Cir. 1968). Accordingly, this comment will focus on the preliminary hearing's obvious, widely acknowledged goal-the quick investigation of whether the state has probable cause to detain a man for further prosecution. See, e.g., 1 C. WRIGHT, FEDE A a PRAcricE AND PRo- cEnTRE §80, at 135 (1969); Greenberg, The President's Page, 51 CHI. BAR Rxc. 106, 109-10 (1969). 2 It should be noted at the outset that Congress has LAw op PRELnINARY -EARiNGS If the prosecutor holds great power to control pre-indictment judicial proceedings, he does so because the law on this segment of the judicial process is undeveloped.3 For example, section 109-1 of the Illinois Code of Criminal Procedure requires the judge to hold a preliminary hearing for any defendant whom the police present on a felony charge.4 At this hearing the judge decides whether there is probable cause to hold the suspect for indictment and prosecution. Although other states specifically require the taking of testimony on the issue of probable cause within a short time after arrest,5 the current Illinois statute, unlike previ- already enacted legislation which attempts to deal with problems concerning the preliminary hearing. See note 112 infra and accompanying text. The Federal Magistrates Act was passed because many congressmen felt that the preliminary hearing rights of persons accused of crimes were being violated. In 113 Cong. Rec. at 3244, Senator Tydings is quoted as saying that in some districts small preliminary hearings are not held even though the grand jury backlog is such that the delay between presentment and indictment is a month or more. This is done in at least one im- portant district by routinely granting continu- ances to the prosecution, often ex parte, without any opportunity for the defendant to object. The abuses which engendered the federal legislation exist to some extent in many state court systems. Illinois is not exempt from, nor is it unique in, the problems attendant upon delays in granting preliminary hearings. Justice White has suggested that these prob- lems may become more acute. Coleman v. Alabama, 399 U.S. 1, 17-18 (1970). 3 See generally McIntyre, A Study of Judicial Dom- inance of the Charging Process, 59 J. CRIM. L.C. & P.S. 463, 466 & n.1 (1968). Prosecutorial control of the judicial machinery at this stage of the proceedings also exists because rela- tively few defendants have counsel at this stage. In the 219 homicide cases studied in this comment, only 93 defendants had counsel appear for them at some time before indictment. 4 ILL. Rxv. STAT. ch. 38, §109-1 (1969). The Illinois Appellate Court has rejected the argument that the misdemeanor defendant has a statutory right to a preliminary hearing. People v. Miner, 85 lU.App. 2d 360, 229 N.E.2d 4 (1967). 5E.g., CAn. PENAL CODE §860 (West 1956); N.Y. CODE Casw. Pao. §191 (Mc~inney 1958); NEv. REv. STAT. §171.196 (1967); ORE. Rxv. STAT. §133.610 (1953); WAsH. REv. CODE ANN. §10.16.040 (1961). Some of these statutes arguably speak to adjourn- ments once the taking of testimony has begun and do Vol. 62, No. 1 Printed in U.S.A.

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