15 Court of Inquiry (Commitment Or Preliminary Hearing)

15. COURT OF INQUIRY (Commitment or Preliminary Hearing)

15.1 VENUE (see Appendix C2).

NOTE - It is the duty of an arresting officer to bring the accused before a committing officer in the county wherein the offense was allegedly committed [OCGA 17-4-21, -25, -26; Paulk v. Sexton, 203 Ga. 82, 45 SE2d 768 (1947)].

15.2 HEARING

15.21 Hearing - CHECKLIST

1. Has defendant received initial rights? (See 13.11 et seq.)

2. Has an indictment been returned? [No hearing required - Middlebrooks,236 Ga. 52, 22 SE2d 343 (1976), First Nat'l Bank & Trust Co. In Macon, 237 Ga. 112, 227 SE2d 20 (1976)].

3. Has an accusation been filed in misdemeanor? (No jurisdiction to dismiss case after accusation [Pruitt, 202 Ga.App. 698, 415 SE2d 497 (1992); but see Watts v. Pitts, 253 Ga. 501, 322 SE2d 252 (1984); Gerstein v. Pugh, 420 U.S. 103, 125 (1975) (right of accused to preliminary hearing if held in custody or under conditional bond with significant restrictions on liberty]).

4. Does defendant want to waive and tender bail? [OCGA 17-6-15, -16; Gerstein v. Pugh, 420 U.S. 103, 125 (1975); Watts v. Pitts, 253 Ga. 501, 322 SE2d 252 (1984)].

5. Have prosecutor and defendant been given reasonable time to prepare? [OCGA 17-7-24].

6. State may be represented by police officer [URMC § 25.2(c)(2)]:

$ State agent's authority to petition court for State on matter within the scope of employment is not unlawful practice of law and no constitutional separation of powers issue because officer is employee of executive branch [see Wolcott, 278 Ga. 664, 607 SE2d 147 (2004)].

7. Has defendant been afforded counsel (or waived same)? [Mitchell,173 Ga. App. 480, 327 SE2d 537 (1985); Watson, 244 Ga. App. 484, 536 SE2d 170 (2000); Camphor, 272 Ga. 408, 410 (2a), 529 SE2d 121 (2000); see Appendix C5;].

At a minimum, the Defendant should be informed of [Camphor]:

$ the right to counsel, including appointed counsel if indigent,

$ the nature of the commitment hearing proceedings,

$ whether the Court finds a waiver of the right to counsel by failure to obtain one after continuance of the case; if so, that the Defendant has the option of waiving the hearing or proceeding pro se; and

$ the dangers of testifying if without advice of counsel.

NOTE - Court of Appeals has required more [Watson], inconsistently with later Supreme Court authority [Evans, 285 Ga. 67, 673 SE2d 243 (2009)]: apprehension of the nature of the charges, the statutory offenses included within them, the range of allowable punishments thereunder, possible defenses to the charges and circumstances in mitigation thereof, all other facts essential to a broad understanding of the matter, and a record, such as a recording, must be made of the waiver. Reversals due to the lack of counsel usually stem from testimony at the prelim, so advisement of the dangers of testifying without the advice of counsel may be the key to an effective waiver.

8. Has defendant been given right to bail pending hearing (see 15.21(3))?

9. Has defendant been given right to subpoena witnesses? [Subpoenas are clearly not limited to the county OCGA 17-7-25; see OCGA 15-10-2(10), 24-10-21].

10. Does evidence indicate a crime was committed and defendant committed it under probable cause standard [OCGA 17-7-22] (see 12.21 (level of proof)?

11. Does evidence show probable cause that a crime other than that charged was committed by defendant [OCGA 17-7-29]?

12. Is it necessary that witnesses post bond to assure appearance at trial [OCGA 17-7-26 (before preliminary hearing 17-7-25)]?

13. Are names of state's witnesses endorsed on warrant [OCGA 17-7-31]?

AND

14. Is bail set [OCGA 17-6-1]?

NOTE - Record of Evidence- Former Georgia law required an abstract of the evidence in a commitment hearing [Ga. Code 27-406; but see Miller, 224 Ga. 627, 163 SE2d 730 (1968); Chenault, 234 Ga. 215 SE2d 223 (1975)]. This requirement was not carried over in the 1981 Code Revision. Although Uniform Superior Court Rule 26.2 requires recordation of preliminary hearings, URMC § 25.2B(8) merely requires a copy to be made of the testimony, if available, with payment of the reasonable cost of preparation. However, an effective waiver of counsel cannot be established without a record [Watson, 244 Ga. App. 484, 536 SE2d 170 (2000)].

NOTE - Juvenile defendants - Unlike arrest warrants (see 11.36C), there is no authority in the juvenile code which has been construed to recognize the authority of courts of inquiry to hold initial appearance or commitment hearings in juvenile cases. Thus, it is questionable whether magistrates have any jurisdiction to such hearings for juveniles, including those which will be tried in superior court as adults. It is recommended that magistrates not conduct such hearings unless designated to act as superior court judges (see 42 U.S.C. 1988(b) for liability for judicial actions clearly in excess of the courts' jurisdiction).

15.22 Commitment

A. DIALOGUE - COMMITTAL HEARING

(Second or Subsequent Appearance)

This is the Preliminary Hearing or Committal Hearing Calendar for the Magistrate Court of _______________ County, Georgia, held on this the _______________ day of_______________, 20____.

These hearings we are holding today are preliminary or commitment hearings. They are not the trials of these cases and the results here do not necessarily determine whether you are found innocent or guilty at a later trial. The purpose of the hearing is to conduct an inquiry into your case(s) to find out whether or not there is probable cause justifying the issuance of (a) warrant(s) for your arrest and justifying proceeding further towards the trial of your case. Probable cause means: Are there enough facts to cause a reasonable man to believe that the crime charged in the warrant(s) against you was committed by you or whether the warrant(s) should be changed to reflect the crime, if any, you actually committed if it is misstated in the warrant. (For example, you may be charged in the warrant with Theft by Taking but the evidence I hear makes a case of Theft by Receiving Stolen Property. I would then bind the case over for trial as Theft by Receiving.)

The steps of criminal procedure are as follows:

First you appear before a magistrate for appearance and preliminary hearing. If before the preliminary hearing is held you get out of jail on bond, this waives (gives up) your...