skip navigation

PUBLICATIONS

Register for Latest Research

Stay Informed
Register with NCJRS to receive NCJRS's biweekly e-newsletter JUSTINFO and additional periodic emails from NCJRS and the NCJRS federal sponsors that highlight the latest research published or sponsored by the Office of Justice Programs.

NCJRS Abstract

The document referenced below is part of the NCJRS Virtual Library collection. To conduct further searches of the collection, visit the Virtual Library. See the Obtain Documents page for direction on how to access resources online, via mail, through interlibrary loans, or in a local library.

 

NCJ Number: 35332 Find in a Library
Title: CRIMINAL PROCEDURE - PRELIMINARY HEARING REQUIRED TO SATISFY DUE PROCESS FOR PRETRIAL INCARCERATION GERSTEIN V PUGH, 1975
Journal: OHIO STATE LAW JOURNAL  Volume:37  Issue:1  Dated:(1976)  Pages:170-184
Author(s): F A FREGIATO
Corporate Author: Ohio State University
College of Law
United States of America
Date Published: 1976
Page Count: 15
Sponsoring Agency: Ohio State University
Columbus, OH 43210
Format: Article
Language: English
Country: United States of America
Annotation: THE SUPREME COURT HELD, IN THIS CASE, THAT THE FOURTH AMENDMENT AS INCORPORATED IN THE FOURTEENTH AMENDMENT, REQUIRES A TIMELY JUDICIAL DETERMINATION OF PROBABLE CAUSE AS A PREREQUISITE TO DETENTION.
Abstract: IT ALSO HELD THAT THE FOURTH AMENDMENT DOES NOT REQUIRE A FULL ADVERSARY HEARING. THIS NOTE ARGUES THAT DUE PROCESS DOES REQUIRE A FULL PRELIMINARY HEARING BEFORE OR IMMEDIATELY AFTER AN ACCUSED IS INCARCERATED, WHETHER FOR A FELONY OR A MISDEMEANOR, EVEN IF THE FOURTH AMENDMENT DOES NOT. THE AUTHOR NOTES THAT THE COURT IN GERSTEIN, BY ONLY FOCUSING UPON THE FOURTH AMENDMENT AS INCORPORATED INTO THE FOURTEENTH AMENDMENT, ANALYZED ONLY ONE NARROW SEGMENT OF DUE PROCESS - THE PROCEDURAL SAFEGUARDS NECESSARY TO SUSTAIN THE SEIZURE AND INITIAL INCARCERATION AS OPPOSED TO THOSE NEEDED TO PREVENT THE ACCUSED'S UNJUST INCARCERATION WHILE SUBSEQUENTLY AWAITING TRIAL. IT IS SUGGESTED THAT THE PROPOSITION THAT ONE MAY BE INCARCERATED WITHOUT BEING AFFORDED A PRELIMINARY HEARING CANNOT BE RECONCILED WITH SUPREME COURT DECISIONS OF THE 1970'S. CITED ARE GOLDBERG V. KELLY (1970), WHICH HELD THAT A FULL EVIDENTIARY HEARING IS REQUIRED BEFORE A STATE CAN TERMINATE PUBLIC ASSISTANCE PAYMENTS TO A WELFARE RECIPIENT AND MORRISSEY V. BREWER (1972) AND CAGNON V. SCARPELLI (1973) IN WHICH THE COURT RULED THAT A PAROLEE OR PROBATIONER WAS ENTITLED TO BOTH A MINIMAL INQUIRY BEFORE THE REVOCATION HEARING. OTHER POLICY CONSIDERATIONS FAVORING FULL EVIDENTIARY HEARINGS BEFORE PRETRIAL INCARCERATION ARE ALSO NOTED, INCLUDING THE CONSEQUENCES OF SUCH INCARCERATION TO THE DEFENDANT, THE NATURE OF AND REASONS FOR A PRELIMINARY HEARING, AND THE ENORMOUS EXTENT OF THE PROSECUTOR'S DISCRETION TO PROSECUTE.
Index Term(s): Critiques; Detention; Incarceration; Judicial decisions; Preliminary hearing; Right to Due Process; Rights of the accused; US Supreme Court
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=35332

*A link to the full-text document is provided whenever possible. For documents not available online, a link to the publisher's website is provided. Tell us how you use the NCJRS Library and Abstracts Database - send us your feedback.