TITLE 16. CRIMES AND OFFENSES
CHAPTER 10. OFFENSES AGAINST PUBLIC ADMINISTRATION
ARTICLE 4. PERJURY AND RELATED OFFENSES
O.C.G.A. § 16-10-70 (2007)
§ 16-10-70. Perjury
(a) A person to whom a lawful oath or affirmation has been administered commits the offense of perjury when, in a judicial proceeding, he knowingly and willfully makes a false statement material to the issue or point in question.
(b) A person convicted of the offense of perjury shall be punished by a fine of not more than $1,000.00 or by imprisonment for not less than one nor more than ten years, or both. A person convicted of the offense of perjury that was a cause of another's being imprisoned shall be sentenced to a term not to exceed the sentence provided for the crime for which the other person was convicted. A person convicted of the offense of perjury that was a cause of another's being punished by death shall be punished by life imprisonment.
What was that testimony again???
The Grand Jury The concept of "The Grand Jury" dates back to 1215 ad and "The Magna Carta". The King of England was stripped of his divine right of kings and was required to also be subject to the law. The Magna Carta was modeled in our Declaration of Independence and the U.S. Constitution.
A number of Grand Jurors are summoned to Court and 23 are selected to serve. The District Attorney calls witnesses for the prosecution, and in some cases for the defense, he presents the cases and the Grand Jurors vote to either true bill or no bill the case based upon their view of the merits of the case. To true bill a case means that it will go to the next step and to no bill a case means that they don't presently see enough evidence for a trial. To carry forward a case means that the DA decides to wait until the next term to present the case.
Grand Jurors may recuse themselves from a case due to personal, business, or other reasons ; but the quorum to vote is 16. Even though the minimum number of 16 are present 12 votes- a majority of the original 23- are still required to issue a true bill.
When a true bill is issued the next step is "The Arraignment". We'll pick up on that later.
May 6, 2008 As part of our discussion of the Rule of Law the next topic is due process. Due process means “fundamental fairness” in the way cases are prosecuted. Every step in the criminal investigation and prosecution is ordered by this concept. If any one is denied due process at any stage of the case the entire effort may be for naught.
Due Process has two parts. The first is substantive, meaning the substance, or the provision for fundamental fairness in the Constitution and in federal, and state statutes. Most notable of the constitutional safeguards is the first ten amendments or The Bill of Rights. We must always remember that our Constitution is not the enumeration of rights that the government allows for the people; but rather, it is a compendium of limits that the people have authorized and entrusted to the government. Substantive due process concepts are set in our Constitution to protect the people.
The other part of the concept of due process is procedural due process. This means that the law must be definitive on every issue and that it must specify how every step in the prosecution is to be accomplished to insure that every one is treated fairly. The procedural aspect of law enforcement is where officers and even more likely law enforcement managers go wrong. They may feel that the end justifies the means, that if they lock up a criminal the tactics that they may have used is unimportant. Sometimes officers overstep their bounds due to a lack of training and some may use “Dirty Harry” techniques for other reasons. The “Dirty Harrys” have no place in law enforcement.
May 2, 2008 Continuing the discussion of the Rule of Law , the 4th Amendment requires a search warrant based upon probable cause(PC). PC is the knowledge that a crime has occurred or is about to occur and a reasonable person would believe that a specific suspect or suspects committed the crime or were about to commit the crime. In the case of a search warrant the reasonable person standard would require belief that evidence of the crime would be in the place to be searched. Probable cause is less than the level of the burden of proof in a criminal case but much more than a hunch or gut feeling. The probable cause requirement is the objective standard, evaluated by a neutral and detached Magistrate, to determine if an arrest or search can be made.
Warrantless searches and arrests are permitted in rare instances that have been allowed by courts. These exceptions are specific and very seldom should warrantless arrests and searches be made. Later we will discuss search and arrest warrant exceptions.
Even in when a warrantless search or arrest is permitted, without probable cause the search or arrest is still illegal. All evidence that is acquired pursuant to an illegal search or illegal arrest becomes inadmissible in court. That doctrine is known as “the fruit of the poisonous tree”.
Another criminal, this time a child molester, was acquitted by a jury in Superior Court this week because of lack of evidence. The granted motion to suppress caused by improper investigation in the case discussed April 30 and the acquittal by the jury because of a lack of evidence in another have turned two alleged criminals back on to the streets of Lamar County this week. The Sheriff's Office alone is responsible for both judicial actions, but the citizens are always the losers.
Next we will talk about due process, the doctrine of fundamental fairness, afforded to every person.
April 30,2008 This week’s newspaper in “Hines case off court calendar” said that Judge Fears granted a motion to suppress based upon the defense argument that deputies conducted illegal searches. A motion to suppress is filed almost routinely when a search has uncovered evidence to be used by the prosecution.
The Fourth Amendment of our Constitution spells out very clearly the rules for searches.
The right of the people to be secure in their persons, houses, papers
and effects against unreasonable searches and seizures, shall not
be violated, and no warrants shall issue, but upon probable cause,
supported by oath or affirmation, and particularly describing the place
to be searched, and the persons or things to be seized.
Everyone has a right to due process so law enforcement must have rules to limit their actions. The Rule of Law is the Constitutional limit placed upon the government; and, even though more prosecution efficiency could be gained without it, our Constitution, thankfully, does not permit operating outside the limits. The granted motion to suppress allows criminals to walk free when their Constitutional rights are violated. Law Enforcement can only blame themselves when evidence is suppressed, or declared inadmissible in court. Everyone has the same rules; we must insist that Law Enforcement do it right because when they don’t we all lose.
We’ll continue to discuss probable cause and due process on another day.
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