Hirsch – Court’s jurisdiction

Hirsch claims that the court failed to establish proper jurisdiction over him during the arraignment.

Judge Maguire presumed subject matter jurisdiction on her own without the DA bearing the burden of proof and moved ahead with the proceedings.

Personal jurisdiction comes from the fact that the citation shows that the location of the offense is within the geographic bounds in which the court has jurisdiction.

16-15-503. Geographical jurisdiction.

The jurisdiction of general sessions courts, when not otherwise provided, is geographically coextensive with the limits of their respective counties.

Subject matter jurisdiction in criminal cases comes from the statutes. The General Session Court has jurisdiction over cases such as Hirsch’s because it is a court of general jurisdiction and his case involved a criminal citation.

16-15-501. General jurisdiction.

(a)  The court of general sessions is vested with all of the jurisdiction and shall exercise the authority formerly conferred by law upon justices of the peace in civil and criminal cases, suits and actions. The jurisdiction, power and authority of the court shall be coextensive with the county.

Furthermore, the arraignment is a relatively simple hearing. Rule 10 explains

Rule 10 TN Rule of Criminal Procedure

(a) General. Before any person is tried for the commission of an offense, the person shall be called into open court and arraigned, except as provided in Rule 43.

(b) Procedure. The arraignment shall consist of the following:

(1) ensuring that the defendant has a copy of the indictment, presentment, or information before called upon to plead;

(2) reading the indictment, presentment, or information to the defendant or stating to the defendant the substance of the charge; and then

(3) asking the defendant to plead to the indictment, presentment, or information.

(c) Record. The arraignment shall be entered on the record.

Or as the following explains

Arraignment – In Tennessee, an Arraignment is also commonly referred to as an “Initial Appearance.” This procedure, which may occur before your first court or hearing date (often via video teleconferencing at the jail), is typically held before a Tennessee Judge or Magistrate. An Arraignment can also occur in Criminal Court following the return of an Indictment or Presentment. The purpose of the arraignment is to (1) set a bond/bail if permitted by Tennessee law; (2) ensure that the defendant is aware of the charges which have been brought against her; (3) advise the defendant of her right to hire a Tennessee lawyer; and (4) to schedule the next court date. At this stage in the process a formal plea of “guilty” or “not guilty” sometimes occurs. It is imperative that a defendant consults with and hires a qualified Tennessee lawyer prior to her arraignment court date.

No witnesses need to be presented, as the court merely informs the defendant of the charges, his rights and determines the necessity of a bond.

Hirsch is claiming that the Judge did not explain the charges to him, and entered ‘not guilty’. I doubt that any court is going to find that this somehow prejudiced Hirsch. It would be helpful to get a record of the hearing to determine what the judge did say and do.

As to the preliminary hearing

Tennessee law is clear that, while a preliminary hearing is not constitutionally required, it is a critical stage of a criminal prosecution mandated by law.  Moore v. State, 578 S.W.2d 78, 80 (Tenn.1979).   The primary function of a preliminary hearing is to determine whether probable cause exists to believe that the accused committed the offense charged, and to fix the amount of bail for bailable offenses.   Tenn.R.Crim.P. 5.1;  State v. D’Anna, 506 S.W.2d 200, 203 (Tenn.Crim.App.1973).

As to Rule 5

a) In General.

(1) Appearance Upon an Arrest. Any person arrested–except upon a capias pursuant to an indictment or presentment–shall be taken without unnecessary delay before the nearest appropriate magistrate of:

(A) the county from which the arrest warrant issued; or

(B) the county in which the alleged offense occurred if the arrest was made without a warrant, unless a citation is issued pursuant to Rule 3.5

Hirsch was issued citations for his misdemeanor offenses.

After the preliminary hearing, the prosecution brought the case before a Grand Jury, which returned an indictment and the case went to criminal court for jury trial. The prosecution mentioned, during the preliminary hearing that they were going to bring the case to a Grand Jury. Since the case was brought before the Grand Jury within the 12 months period of time in which prosecution needs to be initiated, it will be difficult to argue that the criminal court lacks jurisdiction, even if it could be argued that the General Sessions Court lacked such.

In his motion to dismiss with the Criminal Court, Hirsch claims that there was no arrest warrant, but an arrest warrant is not necessary in a case in which citations are issued.

The same applies to Rule 5’s initial appearance, which does not apply when citations are issued. The citation scheduled the initial appearance for arraignment which, as far as I can figure out, has no time limit attached, unlike the mandatory preliminary hearing under rule 5.

Under Rule 5, a defendant can request a preliminary hearing, and the judge appears to have scheduled one for early April, and stayed the hearing until later in April.

 The January hearing was not a probable cause/preliminary hearing. The probable cause hearing had taken place when the Judge was presented with an affidavit of complaint, filed by the arresting officer. From my best understanding, the Judge did not issue a warrant but rather let the case continue under the citation and set bail. The January hearing was a simple arraignment hearing. The April hearing required the attendance of the arresting officer and other parties, in order to have a preliminary hearing to determine probable cause. From the limited records, it appears that the Judge scheduled the hearing based on the defendant’s request.

(3) Governing Rules. The magistrate shall proceed in accordance with this rule when an arrested person initially appears before the magistrate.

However, the person was not arrested but rather had received citations. Now, there is an interesting issue that the defendant was taken to jail after having been issued citations. To what extent this affects the rule 5 procedures is something I have yet to find in a ruling.

Let’s wait and see how the criminal court resolves the motion to dismiss.

VAUGHN v. STATE 557 S.W.2d 64 (1977)

Sec. 40-1131, T.C.A., reads as follows:

40-1131. Right to preliminary hearing. — In all criminal cases, prior to presentment and indictment, whether the charge be a misdemeanor or a felony, the accused shall be entitled to a preliminary hearing, whether the grand jury of the county be in session or not.If the accused is indicted during the period of time in which his preliminary hearing is being continued, or at any time before accused has been afforded a preliminary hearing on a warrant, he may abate the indictment upon motion to the court. Provided, however, that no such motion for abatement shall be granted after the expiration of thirty (30) days from the date of the accused’s arrest.

The first paragraph of § 40-1131 was passed on May 12, 1971. The second paragraph was effective April 4, 1974.

A preliminary hearing is not constitutionally required. Coleman v. Alabama, 399 U.S. 1, 90 S.Ct. 1999, 26 L.Ed.2d 387 (1970); McKeldin v. State, 516 S.W.2d 82 (Tenn. 1974); McCracken v. State, 529 S.W.2d 724(Tenn. Crim. App. 1975).

While this statute is not a model of clarity, we think its import is properly set forth in Harris v. State, 534 S.W.2d 868, 870 (Tenn. Crim. App. 1975).

This language clearly applie[d] only to a situation wherein an accused has been arrested on a warrant prior to indictment, and has no application to the situation in the case sub judice, wherein the very first action against the accused was the return of the indictment… .

[557 S.W.2d 65]

If the Legislature means to say that no person shall be indicted and put to trial on an indictment until they have first had a preliminary hearing then the wording of T.C.A. § 40-1131 will have to be changed. The statute, as written in 1971 and added to in 1974, only covers the case of one arrested on a charge and not given a preliminary hearing prior to indictment. It has no application to a case wherein the first State action is an indictment or presentment, as here. Obviously, a post-indictment “preliminary hearing” would be a mutation of procedures creating many procedural problems. If broader discovery procedures are desired by the Legislature a direct approach, with procedures tailored to that purpose, would serve far better than bending a probable cause proceeding to serve a discovery purpose.

When consideration is given to the evil sought to be corrected by Chapter 245, Acts of 1971, the legislative intent becomes even more apparent. Chapter 16, Acts of 1899 appears as Sec. 11575 in Williams’ Tennessee Code and in the Code Supplement of 1950, and as Sec. 40-402 T.C.A. (original volume). It read, in pertinent part, as follows:

Whenever any person, is [charged upon a state’s warrant], if the grand jury of the county … is in session, the . . justice of the peace shall not try the case, unless the defendant pleads guilty, but shall [take bond, etc.] pending an investigation of said offense by said grand jury.

This section was repealed by Chapter 245, Acts of 1971, which forms the basis of the first paragraph of Sec. 40-1131, T.C.A., which mandates a preliminary hearing irrespective of the convention of the grand jury — but only in those cases wherein the accused was charged by arrest warrant.

Nothing in Sec. 40-1131 mandates a preliminary hearing in those cases wherein the prosecution originated by presentment or indictment. The District Attorney General and law enforcement personnel are legally entitled to omit the normal arrest procedure and to take their cases directly to the grand jury whenever they feel it feasible to assume the potential hazard of an uncharged defendant’s unceremonious departure from the jurisdiction.

Rule 40-1131 was repealed and the precedent in Waugh v. State, 564 SW 2d 654 – Tenn: Supreme Court 1978, should be observed

 It is our opinion that the statute, T.C.A., § 40-1131, entitles the defendant to a preliminary hearing only in proceedings which begin with the arrest, with or without a warrant, of the defendant; when proceedings begin with a presentment or an indictment without the accused being in custody or upon bail for the offense charged, the defendant is not entitled to a “preliminary” hearing. Harris v. State,Tenn.Cr.App., 534 S.W.2d 868 (1975); McCracken v. State, Tenn.Cr.App., 529 S.W.2d 724 (1975).

Therefore, if the case was incorrectly bound over to the criminal court, the criminal court should dismiss. The court however did schedule a preliminary hearing. The question becomes: Did the court scheduled the hearing in a timely fashion? The defendant was not arrested but he did have to pay bail. He was released under citations, so what takes precedent here?