Chapter Seventeen Collateral Proceedings Chapter Seventeen Collateral Proceedings What we seek is the reign of law, based upon the consent of the governed

Chapter SeventeenCollateral ProceedingsChapter Seventeen

Collateral Proceedings

What we seek is the reign of law, based upon the consent of the governed and sustained What we seek is the reign of law, based upon the consent of the governed and sustained by the organized opinion of mankind.by the organized opinion of mankind.

— — Woodrow Wilson, on the League of Nations, Woodrow Wilson, on the League of Nations, in a speech at Mount Vernon, July 4, 1918in a speech at Mount Vernon, July 4, 1918

Procedures in the Justice System, Ninth EditionBy Cliff Roberson, Harvey Wallace, and Gilbert Stuckey

© 2010 Pearson Higher Education, Inc.Pearson Prentice Hall - Upper Saddle River, NJ 07458

• Certiorari• Extradition• Habeas Corpus• International Extradition• Rendition• Unlawful Flight Statute• Writ

Key terms to understand for this chapter…

KEY WORDS



OBJECTIVES

After completing this chapter, you should be able to…

• Explain the procedures involved in extradition.• Discuss international extradition.• Define rendition.• Explain the use of writs.• Explain the importance of habeas corpus.• Discuss the Uniform Criminal Extradition Act.• Explain the use of a writ of certiorari



• Extradition is the procedure followed in returning an accused from one state or foreign country to the state where the crime was committed for the purpose of prosecution.

• The extradition proceedings may be international or interstate.

• Interstate extradition is referred to by some legal writers as rendition.

Extradition



• Interstate extradition is based upon Article IV, of the US Constitution, which provides: – “A person charged in any state with treason, felony, or other

crime, who shall flee from justice, and be found in another state, shall on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction over the crime.”

• Because of certain deficiencies of this provision in covering all phases of extradition, most states have adopted the Uniform Criminal Extradition Act.

ExtraditionInterstate



• The act makes it unnecessary to prove that the accused had actually fled from the state in which the crime was committed to avoid prosecution.

• Prior to the adoption of the act, an accused who was found in another state to which s/he had not voluntarily gone could not be extradited. – adoption of the act permits extradition from any state even

though the accused did not voluntarily go to that state

• An accused may be extradited on either a misdemeanor or a felony charge. – fugitives are seldom extradited on a misdemeanor charge

ExtraditionInterstate



• In order to extradite an accused, there must be an outstanding warrant of arrest filed in the county in which the crime took place.

• The prosecutor of the county in which the crime was committed will make an application to the state governor to make a demand on the governor of the state where the accused is located for the return of the fugitive to the demanding state for prosecution.

• The state in which the fugitive is located is generally referred to as the asylum state.

ExtraditionRequirements



• On receipt of demand, the governor will review them to determine if the fugitive should be surrendered.

• The governor may request the attorney general to conduct an investigation to assist in the determination. – an inquiry may be made by the asylum state to determine if a

complaint or indictment was filed & an arrest warrant issued

– the asylum state may wish to be satisfied the accused was in the demanding state at the time the crime was committed

• If the investigation concludes that the fugitive should be surrendered, the governor will issue a governor’s warrant of arrest.

ExtraditionActing on the Extradition Request



• After arrest, the fugitive will be taken before a local magistrate, who will set an extradition hearing date.

• If the offense is bailable, the local magistrate may allow the fugitive to post bail and be free from custody.– pending the extradition hearing, usually within a few days

• During the hearing, two major facts will be considered: – Is the fugitive in custody the person named in the accusatory

pleading of the demanding state?

– Was the fugitive in the demanding state at the time the crime was committed?

• The fugitive’s guilt or innocence is not pertinent.




• The fugitive is entitled to assistance of counsel at the hearing and to present evidence in his/her own behalf.

• If the magistrate is satisfied the fugitive is the one named in the accusatory pleading and was in the demanding state at the time that the crime was committed, s/he will be turned over to an officerof the demanding state for return to that state.

• After returning to the demanding state, the fugitive may be prosecuted on any charge, not just the one named in the extradition proceedings.




• Frequently, an individual is arrested on a minor local charge, after which it is determined that there is an outstanding warrant of arrest in another state. – most states permit a temporary detention of the arrested

person until extradition proceedings can be instituted

– many times, extradition proceedings are waived by the defendant.

• Upon agreeing to waive extradition, the arrested person is taken before a local magistrate, from whom consent to be returned to the demanding state will be given.– and order the arrested person’s return to the demanding state

ExtraditionFugitive Already Arrested



• The Constitution provides that a person charged with a crime who has fled a state shall, upon demand, be “delivered up” to the demanding state.– there have been times when a governor of an asylum state

has refused to honor this constitutional provision

– there is no authority that can compel the governor toextradite a person wanted for prosecution

• It has been held that the governor of the asylum state must, within a reasonable time, either abide by the demand or refuse to extradite, as the demanding stateis entitled to know if the fugitive is to be returned

ExtraditionRefusal to Extradite



• Interstate extradition proceedings are not to be confused with procedure followed under the federal Unlawful Flight to Avoid Prosecution Statute.

• In the 1930s, gangsters began to plague law officers by committing a series of serious crimes in a community and then immediately fleeing to parts unknown. – efforts to locate them were often handicapped because many

times they fled to another state (automobile).

• Congress passed the Statute. – permitting the federal government, via the FBI, to assist

in locating and arresting wanted fugitives.

ExtraditionFederal Law Against Unlawful Flight



• When a fugitive is identified as having left the state, the US Attorney for the district is requested to file a complaint of violation of the Unlawful Flight Statute. – a warrant is issued on the federal complaint giving the FBI

the authority to locate and arrest the fugitive

• The local prosecuting attorney must agree to handle extradition proceedings, as the statute was passed only to assist in locating and arresting the fugitive.– and not for return to the demanding state

• The statute permits assistance to be given for any felony violation.

ExtraditionFederal Law Against Unlawful Flight



• International extradition is based entirely on treaties with countries; which specify the crimes for which an accused may be extradited.

• If a fugitive is extradited from a foreign country, s/he may be prosecuted only on the extradition charge.

• International extradition is handled in the US through the Department of State.

• As with a governor who does not honor extradition, little can be done to compel a foreign country.– with exception of registering a protest or breaking a treaty

ExtraditionInternational



• Legally, a writ is defined as a mandatory precept (order), under seal, issued by a court, and commanding the person to whom it is addressed to do or not to do some act.

• One might think of a writ as a written order issued by a court directing some other court officer to do or not to do a particular act.

• A number of writs may be issued by a court.

Writs



• The writ of habeas corpus has been termed the great writ because its purpose is to obtain the prompt release of one who is being unlawfully detained. – right to this writ is embodied in the US Constitution

• Statutes of the states read similarly to the following:– “Every person unlawfully imprisoned or restrained of

liberty, under any pretense whatever, may request a writ of habeas corpus to inquire into the cause of the imprisonment or restraint. The person who believes that he or she is being unlawfully imprisoned, or someone in that person’s behalf, may petition the appropriate court to have a writ of habeas corpus issued.”

WritsHabeas Corpus



• The petition must state the place of confinement, the officer/person doing the confining, and facts explaining why the petitioner feels unlawfully imprisoned.

• If the reason is valid, the writ will be issued and served, the prisoner brought before the court for a hearing to determine if there is sufficient cause for confinement.

• Burden of proof is on the imprisoned to prove, by a preponderance of evidence, imprisonment is unlawful.

• If the offense is a bailable one, the person is entitled to post bail pending the habeas corpus hearing.

WritsHabeas Corpus



• If the judge concludes the prisoner is being unlawfully detained, an order to release the prisoner will be issued. – the prisoner may not be charged further on the offense unless

additional evidence is developed showing reasonable cause for arrest & commitment. (Double Jeopardy issue).

• If the judge concludes the imprisonment was lawful, the prisoner will remain in custody.

• Early use of habeas corpus was limited to obtaining immediate release of one unlawfully restrained. – in recent years, the use of this writ has been broadened

materially to make it applicable in a number of situations

WritsHabeas Corpus



• This writ has been used to determine effectiveness of counsel.

• The writ is also the way that the death penalty in state criminal trials is traditionally attacked in federal court.– convictions were voided years after defendants were found

guilty

– the process has also been used to delay imposition of the death penalty

WritsHabeas Corpus



• In 1996 the US Congress passed the Antiterrorism and Effective Death Penalty Act.

• This act establishes limitation periods for the bringing of habeas actions and requires federal courts generally defer to state courts’ determinations. – under the act, a habeas corpus petitioner will normally have

one year in which to seek relief

• Presumption of correctness accorded state courts’ factual findings was also strengthened.

WritsHabeas Corpus



• A writ of certiorari is issued by an appellate court to permit review of a decision/judgment by a lower court. – often issued when other means of appeal are not possible

• The writ is often granted by a state supreme court to establish guidelines for future cases by either trial judges or lower appellate courts. – particularly if there is doubt concerning a law or procedure

• This writ is automatically issued in most jurisdictions to review a case when the death penalty is imposed.– to determine if the facts warrant a conviction and the

imposition of the death penalty

WritsCertiorari



• The US Supreme Court frequently issues this writ to review the decision of a state appellate court when there may be a possible denial of a US constitutional guarantee. – the Coker decision is a good example

• The US Supreme Court granted Coker a writ of certiorari in order to determine whether the death penalty was excessive for the conviction of rape and, thus, a violation of the Eighth Amendment.

WritsCertiorari



• Interstate extradition is often referred to as rendition.• International extradition is regulated by treaties

between the countries involved.• Interstate extradition involves the governor (or a

representative of the governor) of the requesting state sending a request for extradition to the governor of the receiving state (where the accused is located).

Important topics for this chapter…

SUMMARY



• A person being extradited has a right to a judicial hearing in the receiving state before he or she is extradited.

• The receiving state has no obligation to honor a request for extradition.

• It is a violation of federal law to cross state boundaries in order to avoid prosecution in another state.

• The writ of habeas corpus is termed the great writ.• The writ is used to test the legality of confinement.

Important topics for this chapter…

SUMMARY(cont.)

Chapter EndChapter End

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Chapter Seventeen Collateral Proceedings Chapter Seventeen Collateral Proceedings What we seek is the reign of law, based upon the consent of the governed