Does pre-trial detention exist only because of a resources constraint? A lot of people are talking about alternatives to cash bail recently, which made me wonder, why does pre-trial detention exist in the first place? My layman's understanding of pre-trial detention is that it's a kind of &quot;buffer&quot; or a necessary evil. The root problem appears to me that we don't have enough judges, public defenders, etc. to get everyone to trial immediately, so we have to hang onto them until a slot opens up. Bail exists because of flight risk, so if in some world there were no need for pre-trial detention, we wouldn't need bail or any alternative. Is my understanding essentially correct? In other words, does pre-trial detention exist because of a resources constraint? Or is there some more fundamental reason why we have this intermediary step between arrest and trial? My question is coming from a US-based context, hence my lead-in about &quot;cash bail&quot;. However, I'm curious about pre-trial detention in general, regardless of whether bail is used or what form it takes.
Even if unlimited resources were available, in order to have a fair trial, the prosecution and defense both need time to prepare their cases, research the law, conduct investigations, gather evidence, interview witnesses, seek out experts, order forensic tests, etc, etc. And there will be pretrial motions that have to be prepared, argued, and judged. You have to figure out what's going to happen to the defendant during that time, be it detention, release, bail, or some other alternative. Shortages of personnel obviously exacerbate the delays, but even without that issue, it's not like the courts could try every defendant on the spot. That would be something like the Wild West, or the Dark Ages; certainly not what the modern world considers justice.
While it is from a different jurisdiction, the following goes to the heart of the matter: Arrest, when used in its ordinary and natural sense, means the apprehension of a person or the deprivation of a person's liberty. The question whether the person is under arrest or not depends not on the legality of the arrest, but on whether the person has been deprived of personal liberty of movement. Directorate of Enforcement v Deepak Mahajan, (1994) 3 SCC 440 at ¶46 (SC of India) In your example, the police officer has been deprived of "personal liberty of movement"; if they can still speak there would be no legal impediment to them placing the person who arrested them also under arrest. It would then be incumbent on both parties to deliver each other into lawful custody. The citizen would need to seek out a law enforcement officer to do this; the police officer has already done so, being their own law enforcement officer. After this, comes the paperwork.
In addition to the general considerations of (1) who is allowed to use non-deadly physical force to maintain order in a shop (which I think that one could do if "deputized" by the property owner or to protect the property of another as well), and (2) the use of non-deadly physical force to make a citizen's arrest (which many of these scenarios would justify as the disorder would be a crime if committed by an adult), (3) I suspect that there is also some point at which a bystander may intervene to prevent harms associated with an unsupervised minor being at large and in need of supervision. Generally speaking, intervention with the minimum reasonable non-deadly physical force to prevent property damage, or an assault, or a threat, is going to be permissible. As to the third reason: for a mentally normal ten-year-old that might be a stretch; for a four-year-old or a clearly impaired older child it might not. One could approach the child, say, "where's your mom or dad", "do you have a babysitter or sibling around?", "what is your name?", or "are you lost?" and detain the child until a satisfactory answer is provided or a suitable authority arrives, to prevent the problem of a child being lost, abducted or hurt by the child's own actions. It would be quite hard for a parent, guardian or babysitter to complain about this kind of conduct when the child was unsupervised and is released as soon as you confirm that this really is a responsible adult or older minor who is responsible for the child. It would be important in doing so to not secret away or isolate the child, to try to determine the location of the child's caretaker, to refrain from doing anything that would harm the child, and to seek assistance from an authority within a reasonable time. Typically, if no caretaker appeared, a cop would come and the cop would oversee the situation until a social worker could come. For example, Colorado has the following statute that would apply once a cop arrived (omitting lengthy provisions that apply to newborn children): § 19-3-401. Taking children into custody (1) A child may be taken into temporary custody by a law enforcement officer without order of the court: (a) When the child is abandoned, lost, or seriously endangered in such child's surroundings or seriously endangers others and immediate removal appears to be necessary for such child's protection or the protection of others; (b) When there are reasonable grounds to believe that such child has run away or escaped from such child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has not made a report to a law enforcement agency that the child has run away from home; . . . (1.3) A child shall be taken into temporary custody by a law enforcement officer without order of the court when there are reasonable grounds to believe the child has run away from the child's parents, guardian, or legal custodian and the child's parents, guardian, or legal custodian has made a report to a law enforcement agency that the child has run away from home. (1.5) An emergency exists and a child is seriously endangered as described in paragraph (a) of subsection (1) of this section whenever the safety or well-being of a child is immediately at issue and there is no other reasonable way to protect the child without removing the child from the child's home. If such an emergency exists, a child shall be removed from such child's home and placed in protective custody regardless of whether reasonable efforts to preserve the family have been made. (2) The taking of a child into temporary custody under this section shall not be deemed an arrest, nor shall it constitute a police record. A child is considered neglected or dependent under circumstances including the following (provisions related to drug or alcohol abuse by parents omitted): § 19-3-102. Neglected or dependent child (1) A child is neglected or dependent if: (a) A parent, guardian, or legal custodian has abandoned the child or has subjected him or her to mistreatment or abuse or a parent, guardian, or legal custodian has suffered or allowed another to mistreat or abuse the child without taking lawful means to stop such mistreatment or abuse and prevent it from recurring; (b) The child lacks proper parental care through the actions or omissions of the parent, guardian, or legal custodian; (c) The child's environment is injurious to his or her welfare; (d) A parent, guardian, or legal custodian fails or refuses to provide the child with proper or necessary subsistence, education, medical care, or any other care necessary for his or her health, guidance, or well-being; (e) The child is homeless, without proper care, or not domiciled with his or her parent, guardian, or legal custodian through no fault of such parent, guardian, or legal custodian; (f) The child has run away from home or is otherwise beyond the control of his or her parent, guardian, or legal custodian; I don't have easily at hand legal authority authorizing a third-party who is not a law enforcement officer to take custody of a dependent or neglected child until a law enforcement officer arrives, but I strongly suspect from the context that this is allowed either under common law, or a statute that I have not located, or some legal fiction (e.g., that the citizen is implicitly deputized by the law enforcement officer after the fact), or simply as a matter of custom and ordinary practice not codified in any authoritative legal source.
There is a special type of law enforcement officer, called a &quot;bailiff&quot; who is charged with maintaining order in a courtroom, and often, a bailiff is a direct subordinate of a judge who must follow the judge's orders. Judges can also issue special kinds of court orders, called &quot;writs&quot; which are a direction to a law enforcement agency generally to take certain action. But, in these cases, the law enforcement agency is effectively an &quot;independent contractor&quot; in relationship to the judge with considerable discretion regarding precisely how and when a writ is carried out. Somebody in the law enforcement agency to which a writ is directed is required to take action, but no individual law enforcement officer is personally compelled to comply with this order. The quote in question is not a statement about the legal authority of a judge, however. It is a statement of &quot;realpolitik&quot;. The judge can't physically force or threaten law enforcement to do what they are told to do by a judge. The cops have the guns, not the judges. Instead, the judge relies upon law enforcement obeying the judge's orders because that is what law enforcement officers do. It's right in the job title. But, if law enforcement chose to ignore judges, in general, there is very little that judges could do about that (and in some countries, law enforcement does routinely ignore judicial directions). Some forms of executive branch authority to defy judicial orders is even legally codified, most starkly in the case of the pardon power.
Everyone physically present in the US is protected by the US Federal constitution. (In some cases persons not physically in the US also have protection from the US constitution. When that applies is too complex for this answer.) Most of the rights protected by that constitution are available to anyone present, whether citizen, lawful immigrant, lawful visitor, or a person in the US without lawful authority. A few rights, such as the right to vote and to run for public office, are limited to citizens. If a person was arrested but not informed of his or her Miranda rights, then statements made to the arresting officers (or later interrogating officers) would not be admissible in court, unless an exception to the Miranda rules applies, which is unlikely. I can't say if this happened in the particular case mentioned in the question. In general, in the area of criminal procedure, there is no difference between citizens and others subject to US jurisdiction (accredited foreign diplomats normally have immunity). A few crimes can only be committed by citizens (or others owing allegiance to the US) such as treason. A few crimes, such as unlawful entry to the US, can't be committed by citizens, as citizens automatically have a right to enter. But criminal procedure and constitutional rights affecting criminal procedure, are the same for all in the US, citizen or not. (Oh, there are special laws for minors, but that isn't a matter of citizenship.)
Edit: I didn't notice a that this question was tagged for Canada; this answer is based on U.S. law. "Must you stop walking" and "can the police detain you for leaving" are different questions. Must you stop? I'd expect a lot of variation from state to state, but there are definitely situations in which you must stop. In Ohio, for instance, an officer who "reasonably suspects" that that you have committed, are committing, will commit, or have witnessed the commission of violent felony, is permitted to stop you and ask for your name, address and date of birth, and it is a crime to refuse to provide that information. R.C. 2921.29. But at the moment the officer asks you to stop, you're in a tricky position. If you haven't done anything wrong, you'd be inclined to think that the officer has no basis to stop you and that you're justified in walking away. But if someone just called the police and said someone fitting your description just robbed a store two blocks away, the officer has reasonable suspicion that you committed a violent felony, but you have no way of knowing that. This sort of thing happens pretty much all the time. In the absence of that reasonable suspicion, though, Ohio courts have repeatedly held that it is not obstruction for you to just walk away (or even run!) from the officer. Can the police detain you for walking away? Obviously, if you're in a situation where it is a crime to not answer questions, the police can detain you because they just watched you break the law. But what about when you're within your rights not to answer? The police can still detain you with a Terry stop when they have a reasonable and articulable suspicion that you are committing a crime, or that you just did, or that you're about to. And they can continue that Terry stop until that suspicion is confirmed or dispelled, or until they can't reasonably expect to get anymore information by detaining you. Based on the facts you described, it seems unlikely that they could legally detain you based on your termination of the conversation. Still, I imagine that there could be circumstances where they might stop someone, ask questions, and then reasonably suspect that the person was engaged in a crime based on his decision to walk away, especially if the person hasn't explicitly invoked his Fifth Amendment right to silence.
SCOTUS has at least three times found that it is necessary for a defendant to be present at the beginning of a criminal trial in order to satisfy the Constitutional mandates regarding due process. So the simple answer is that a defendant must be present during a criminal trial because without his presence no trial can begin. However, once a trial has begun FRCP Rule 43 itself (section c) allows for the absence of the defendant. Among the provisions: The defendant can waive his right to be present simply by voluntary absence. The defendant can also waive his right by disruptive behavior in the court.
Yes, both duress and necessity remain viable defenses. The contours of these defenses will vary from state to state, but many states use the Model Penal Code. MPC § 3.02(1) lays out the necessity defense, which it calls justification: Conduct that the actor believes to be necessary to avoid a harm or evil to himself or to another is justifiable, provided that: (a) the harm or evil sought to be avoided by such conduct is greater than that sought to be prevented by the law defining the offense charged; and (b) neither the Code nor other law defining the offense provides exceptions or defenses dealing with the specific situation involved; and (c) a legislative purpose to exclude the justification claimed does not otherwise plainly appear. MPC § 2.09(1) lays out the standard for duress: It is an affirmative defense that the actor engaged in the conduct charged to constitute an offense because he was coerced to do so by the use of, or a threat to use, unlawful force against his person or the person of another, that a person of reasonable firmness in his situation would have been unable to resist. So MPC § 2.09 does not explicitly make imminence a requirement for the duress defense, but it adopts an objective standard, which permits the jury to factor in that consideration. A &quot;person of reasonable firmness&quot; would be less able to resist robbing a bank if the threat was to kill their child in 30 seconds than if the threat was to kill their grandmother in 50 years, during which the defendant can call the police to investigate the threat and the odds are good that granny dies anyway. I'd guess most duress cases fall somewhere in the middle, so it becomes a question for the jury whether the threat was serious enough and imminent enough to merit justification.