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Friday, December 19, 2008

Common courtesy in the criminal justice system

I've been reading up about courtesy summonses -- a topic of interest among some lawyers in my state.  In South Carolina, "a person charged with any misdemeanor offense requiring a warrant signed by nonlaw enforcement personnel to ensure the arrest of a person must be given a courtesy summons."  (If you want to take a gander at it, it's here on page 4, Section 22-5-110, and here, Section 22-5-115.)  A courtesy summons is issued by a magistrate or municipal judge in lieu of an arrest warrant and is based on an affidavit sworn out by a person who is not an investigating law enforcement officer.  The affidavit must establish probable cause to believe that the recipient of the summons committed the misdemeanor.  These summonses enlighten He-Who-Is-Summoned about the charges, but cannot be used to execute an arrest.  He-Who-Shall-Not -Be-Arrested may then be tried.  If convicted, he will be arrested and booked.  If he is found not guilty, he sidesteps the arrest and booking process and heads on home. 

From what I can tell, a courtesy summons is a nice way to tell someone that he has wronged you in a non-felonious, albeit criminal, way.  Southerners are, if nothing else, very polite.  These summonses provide the folks seeking them a voice; they provide the folks receiving them a modicum of dignity.  I've heard that the courtesy summons was initially conceived as a means for serving teachers in classrooms, but they are regularly used to serve "blue bloods" (see, e.g., this article) and other VIPs (see, e.g., this article).  The process also cuts out the middleman -- the police officer -- by allowing Joe Citizen to submit his own sworn statement to the judge for a probable cause determination. 

This process has a King Solomon-ish air to it, but I wonder:  Does it promote peace or encourage discord?

Posted by Susan Kuo on December 19, 2008 at 01:34 AM in Criminal Law | Permalink


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mainfloorguy, I've not seen a published case addressing a Franks hearing re a courtesy summons, but I would argue that He-Who-Shall-Not-Be-Arrested should be entitled to one. FWIW, I have heard that, when a case is dismissed because a courtesy summons affiant fails to show up or participate in the case in any capacity, the affiant is rarely, if ever, penalized for setting off the snipe hunt.

Posted by: Susan Kuo | Dec 29, 2008 12:40:53 AM

That is a kind way of putting it! We don't have those here in Texas. Many of my DUI clients do not consider themselves criminals so perhaps that is an angle.

Posted by: criminal lawyer houston | Dec 21, 2008 1:10:17 PM

Is He-Who-Shall-Not -Be-Arrested entitled to a Franks hearing?

Posted by: mainfloorguy | Dec 19, 2008 11:34:50 PM

I like the post - very informative. Maybe it doesn't promote courtesy as much as order. Although I am sure the process can be and is abused, better that people have an outlet than take the law into their own hands.

Posted by: Raymond E. Foster | Dec 19, 2008 4:16:15 AM

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