Opinion
Delivered January 31, 1994
The Supreme Court Committee on Criminal Practice has proposed changes in the Arkansas Rules of Criminal Procedure. We publish the proposed changes to Rule 4.1, Authority to Arrest without Warrant; Rule 7.1(c), Arrest with a Warrant: Basis for Issuance of Arrest Warrant; Rule 28.2(c), When Time Commences to Run; and Rule 31.2, Waiver of Trial by Jury: Personal Request, along with comments supplied by the Committee so that they may be studied by members of the bench and bar.
Written comments on the proposed changes should be sent to the Clerk of the Supreme Court, Justice Building, 625 Marshall Street, Little Rock, AR 72201 within 60 days from date of this per curiam order.
Rule 4.1 should be amended to add new subsection (e) as follows:
(e) A person arrested without a warrant shall not be held in custody unless a judicial officer determines, from affidavit, recorded testimony, or other information, that there is reasonable cause to believe that the person has committed an offense. Such reasonable cause determination shall be made promptly, but in no event longer than forty-eight (48) hours from the time of arrest, unless the prosecuting attorney demonstrates that a bona fide emergency or other extraordinary circumstance justifies a delay longer than forty-eight (48) hours. Such reasonable cause determination may be made at the first appearance of the arrested person pursuant to Rule 8.1.
COMMENT
In Gerstein v. Pugh, 420 U.S. 103 (1975), the United States Supreme Court ruled that a person arrested without a warrant is entitled to a prompt judicial determination of probable cause. Last year, in County of Riverside v. McLaughlin, 111 S.Ct. 1661 (1991) the Court held that a judicial determination of probable cause within 48 hours of arrest will generally satisfy the promptness requirement of Gerstein, but the court recognized that a longer delay may be justified by "bona fide emergency or other extraordinary circumstance." The proposed change to Rule 4.1 codifies Gerstein as modified by Riverside.
In most cases the probable cause determination can be made at the first appearance of the arrested person pursuant to Rule 8.1. Gerstein, however, does not require a formal probable cause hearing complete with such safeguards as counsel, confrontation, cross-examination, and compulsory process. The proposed change is flexible enough to permit an informal, nonadversarial probable cause determination in those cases in which a prompt Rule 8.1 appearance is not feasible.
Rule 7.1 (c) should be amended to read as follows:
A judicial officer who has determined in accordance with Rule 7.1(b) that an arrest warrant should be issued may authorize the clerk of the court or his deputy to issue the warrant.
COMMENT
In Fairchild v. Lockhart, No. P2-C-85-282 (E.D. Ark., Sept. 11, 1987), Judge Eisele concluded that current Rule 7.1(c) was unconstitutional to the extent it allows clerks to rubber-stamp arrest warrants at the request of the prosecutor. Shadwick v. City of Tampa, 407 U.S. 345 (1972) requires the issuing officer to meet two tests: "He must be neutral and detached, and he must be capable of determining whether probable cause exists for the requested arrest or search." A prosecutor does not meet the first test, and most clerks do not meet the second test. The proposed rule allows clerks to issue warrants, but only after a judicial officer has first made a probable cause determination.
1. Rule 28.2 should be amended to add new subsection (c) as follows:
(c) When the initial charge is nolle prossed or otherwise dismissed without prejudice on motion of the State, and subsequently the defendant is arrested or charged with the same offense, then the time for trial shall nonetheless commence running, pursuant to Rule 28.2(a), from the date of the initial charge in circuit court or the initial arrest, as the case may be, as if no order of nolle prosequi had been entered.
2. The present subsection (c) shall be redesignated (d).
COMMENT
This rule is to memorialize Cox v. Lineberger, 304 Ark. 231, 805 S.W.2d 947; rev'sed on rehearing 304 Ark. 234-A, 803 S.W.2d 555 (1991).
The rule embodies a policy decision: The clock is not restarted by virtue of a nolle pros. When, following a nolle pros, the defendant is recharged with the same offense, the time for trial begins running either from the date of the initial arrest or the initial charge in circuit court.
Rule 31.2 Waiver of Trial by Jury.
Should a defendant desire to waive his right to trial by jury, he may do so either (1) personally in writing or in open court or (2) through counsel if the waiver is made in open court and in the presence of the defendant. A verbatim record of any proceedings at which a defendant waives his right to a trial by jury in person or through counsel shall be made and preserved.
COMMENT
The purpose of this rule is to memorialize Bolt v. State, 314 Ark. 387, 862 S.W.2d 841 (1993).