alan@sdcrdcf.UUCP (Alan Algustyniak) (08/07/84)
<Possession is 90% of the law>
A friend of mine recently told me that, altho a citizen can initiate
civil legal action, the executive branch of govn is the only one
which can handle criminal legal action. Is this true?
He says that the DA's office is the only one that can take someone
to trial and prosecute him on a criminal charge. He claims that at
least one reason for not allowing anyone to go to a lawyer for
criminal action is to prevent innocent people from being harassed
to death by court proceedings. He didn't explain what the difference
between criminal and civil court action is in this respect.
The reason i bring this up is this: If what he says is true, what's
to prevent a breakdown of the system when the DA's office becomes
corrupt? Is voting in a new DA the only recourse? Where are the checks
and balances? And what happens when a good DA makes what is known to
be a mistake in not prosecuting a particular case? Can the legis-
lature assign a special prosecutor?
Alan Algustyniak (ihnp4!sdcrdcf!alan)
(allegra!sdcrdcf!alan) (cbosgd!sdcrdcf!alan)dee@cca.UUCP (Donald Eastlake) (08/09/84)
At least in Massachusetts it is still permissable for private citizens
to bring criminal prosecutions, as I understand it. But this is pretty
dangerous as if the person is not convicted, the person who prosecuted
them will probably get sued for a lot of money and lose.
If the government will not bring criminal charges aginst someone, there
is usually an equivalent civil action. For example, if someone steals
something, the owner can bring an action for "conversion" (the thief
is said to have converted the property to their own use). Of course this
does not help much if the person is judgement proof (ie, has almost no
assets).
Donald
--
+ Donald E. Eastlake, III
ARPA: dee@CCA-UNIX usenet: {decvax,linus}!cca!deestewart@ihldt.UUCP (R. J. Stewart) (08/10/84)
> A friend of mine recently told me that, altho a citizen can initiate > civil legal action, the executive branch of govn is the only one > which can handle criminal legal action. Is this true? As best I can tell from some classes I've had, this is true (assuming all states work about the same). In fact, a criminal action is considered to be a crime against the state, not against a person. For example, if I violate the law by punching someone in the nose, my crime was that I violated the state penal code; the person I punched is merely a witness to the crime. The origin of this is unclear. It seems to have its advantages and disadvantages. Bob Stewart ihldt!stewart Disclaimer: I am not a lawyer. The contents of this article represent a layman's opinion.
leff@smu.UUCP (08/13/84)
#R:sdcrdcf:-123800:smu:24100002:000:537 smu!leff Aug 12 17:29:00 1984 It is possible to request a writ of mandamus to have the DA do one's duty. This would be most useful in a case where the DA decided he did not want to enforce some aspect of the law. E. G., a wife was required to have sex by her husband under threat of force, the law stated that this is to be considered to be rape but the DA felt that he did not feel that was rape. Where the DA felt there was insufficent evidence, the court would be most likely to accept the DA's opinion since presumably he is an expert in what is prosecutable.
eager@amd.UUCP (Mike Eager) (08/14/84)
In some states (I don't know if CA is one) they have the "grand jury" empowered to bring inditements against individuals, as well as the DA. This is supposed to be a "check" against the DA not performing or selectively enforcing laws. My impression is that it does not serve this purpose. It seems to be a kangaroo court in many ways. Lawyers are not permitted to represent a client at a grand jury -- after all, nobody has been charged. A witness may be held in jail for failure to answer questions for the duration the grand jury is empanneled. Additionally, the only person who is allowed to present to the jury is the DA, and there is no rebuttal of the evidence presented. The only thing the grand jury can do is return an inditement or not. It is not a "tryer of fact" and cannot determine guilt or innocence. But the DA can (and often does) publicize the names of the persons who are called before the grand jury, and the offenses which the person is suspected of. And this is not slander. Sounds more like an inquisition!! -- Mike Eager (amd!eager)
ka@hou3c.UUCP (Kenneth Almquist) (08/15/84)
I think that Mike Eager paints an excessively negative picture of
grand juries.
1) As far as I know a witness at a grand jury may be represented by
a lawyer, just as a witness in any other judicial proceeding may.
2) Witnesses are required to testify when called before a grand jury,
as are witnesses called before other judicial procedings. Witnesses
are never required to answer all questions; for example witnesses
are not required to incriminate themselves. In the case of the
grand jury, certain other considerations protect witnesses:
- Grand Jury procedings are generally not made public, so the
privacy of the witnesses is protected.
- Questions are asked only by the DA or by jurors, which means that
witnesses are not generally subjected to cross-examinations designed
to damage the credibility of the witness.
3) A major function of the grand jury is to prevent prosecutors from
harassing citizens by filing frivolous suits against them. A grand
jury attempts to decide whether a convincing case can be made against
a person. After a person is indicted by a grand jury, he or she
still has to be tried in order to make a final determination of guilt
or innocence. A grand jury cannot perform the function of a trial
jury, but it can save a suspect from the time and expense of a trial
if the prosecution does not have a reasonable case.
4) Grand juries can return presentments as well as indictments.
5) In some places, revealing information about the contents of a grand
jury proceding is a criminal offense. The person whose reputation is
hurt by a grand jury investigation is not alone. If a person is
arrested, the press are generally informed of the event.
The biggest problem with the use of grand juries is that the DA has a lots
of control. The DA works with the grand jury in an advisory role and is
generally able to persuade the grand jury to his or her point of view.
Therefore, the notion of an independent grand jury preventing abuses by
the DA is probably more myth than fact.
Kenneth Almquisthalle1@houxz.UUCP (J.HALLE) (08/15/84)
Ken, your first two points are wrong. You may consult with your lawyer, but you may not be represented by him. Your lawyer will not be part of the proceedings. Normally this is not a problem, unless ...... You can plead the fifth, but only if you refuse to answer all questions. Once you start answering questions about a subject, you have waived your fifth amendment rights. And saying more than your name, rank, and serial number will probably be considered as answering questions on the subject. Your other points are true as far as I can tell.
dcm@wlbr.UUCP (Dave Miller) (08/16/84)
Another point regarding the grand jury. Did you realize that a person may be brought before the grand jury any number of times on the same charge? There is no protection from "double-jeopardy" in the grand jury. This is Constitutional? dcm ..!scgvaxd!wlbr!dcm
hawk@oliven.UUCP (08/28/84)
>Another point regarding the grand jury. >Did you realize that a person may be brought before the grand jury >any number of times on the same charge? There is no protection >from "double-jeopardy" in the grand jury. This is Constitutional? Yes, and this is an important safeguard. The grand jury cannot convict or acquit, only accuse. Your case should only get to trial if the grand jury decides that there is enough cause to suspect you. -- rick (Rick Hawkins @ Olivetti ATC) [hplabs|zehntel|fortune|ios|tolerant|allegra|tymix]!oliveb!oliven!hawk