.

 
    Procedures for bringing criminal and civil actions vary slightly from state to state; those described here are followed in North Carolina.  It is suggested that a public health worker determine whether or not there are any variances between these procedures and those followed in his state.  Many states follow less formal procedures for prosecuting health violations than does North Carolina.

A.  Criminal Proceedings

    A criminal proceeding in North Carolina begins with an arrest.  In all cases, the arresting law enforcement officer must obtain a warrant, either before the arrest is made or as soon thereafter as practicable.  A warrant for arrest is obtained from a judicial officer who, before issuing a warrant, makes a judicial determination of whether there is "probable cause" for the citizen to answer a charge of crime.  This determination also serves as a check on the judgment of the law enforcement officer.  At this stage, the law does and must operate primarily on suspicion; only the story of the law enforcement officer is available.

    The arrested citizen must be brought before a judicial official for a preliminary hearing.  At this hearing the citizen may request a delay in the hearing so he can engage and consult with counsel.  For the arrested citizen at the preliminary hearing the same determination of probable cause is made as when the arrest warrant is issued, but after he, as well as the arrested officer, has had an opportunity to tell his side of the story.

    In certain misdemeanors, the preliminary hearing may be the actual trial, in which case the warrant of arrest serves three purposes: (1) as authority for the officer to make the arrest; (2) as the document, in substitution for an indictment, on which trial is based; and (3) as a record of the trial which the accused is entitled to have kept to prevent double jeopardy.

    In all felony cases and in some misdemeanor cases, if after the preliminary hearing probable cause still exists, the next step is the drawing of an indictment by the prosecutor (called "solicitor" in North Carolina).  This indictment formalizes the decision to prosecute.  The solicitor has complete freedom of choice in this decision; he needs make explanations to no one.  In North Carolina there are only two possible checks on his power, neither of which is necessarily effective.  One is the fact that he must be elected.  The other is that the governor may appoint a special prosecutor to fill his office in certain rare instances which are usually so extremely rare that the solicitor himself is indicted.  (This is not to be confused with the fact that special prosecutors can be appointed to assist solicitors in some cases.)

    After the solicitor has drawn the indictment, a grand jury must pass on it.  In North Carolina, the grand jury is a body of 18 citizens which can act on a vote of 12 (these number vary among the states).  The citizens meet in closed session, with neither the accused nor the state having the right to be present before them.  They hear the witnesses noted on the indictment and decide the same issue decided twice before, whether there is probable cause to hold the citizen to answer to the charge to crime.  If they so find, they declare the bill of indictment submitted to them by the solicitor to be "true bill".  If not, they declare a finding of "no true bill."  This is theoretically a check by an independent body of citizens on the previous judgments of law enforcement and judicial officers as to probable cause (judgments made at the warrant and preliminary hearing stages).

    The grand jury may also bring a "presentment," based on their own knowledge and investigations, against some citizen not accused before them.  This takes the place of the determinations of probable cause at the warrant and preliminary hearing stages, and the presentment goes directly to the solicitor for the drawing of a bill of indictment.  If he chooses to draw one, it is resubmitted either to the same grand jury or to a subsequent one, and is thereafter treated just as any other bill of indictment.

    The finding of a true bill of indictment is followed by arraignment; the accused citizen has now become a defendant.  Arraignment calls the defendant before the judge to have the bill of indictment read to him and to determine how he will answer that indictment.  In general, jeopardy, insofar as establishing a criterion for double jeopardy, attaches at this point.

    Trial, following arraignment, is the stage at which the jury determines what facts were, the judge determines what law should apply, and the jury then applies that law to the facts as found.  The state must prove its case against the defendant by "proof beyond a reasonable doubt."  The trial jury consists of 12 persons who must act unanimously.

    Sentencing by the judge occurs next.  Here the judge may have discretionary power or he may not.  Where he can exercise discretion, he may hear additional evidence, such as the testimony of probation officers, to guide him.

    These steps may be followed by an appeal.  In North Carolina the appeal from district courts is first made to the superior court, where a completely new trial is held.  Further appeals, if taken, lie to the court of appeals and possibly the state supreme court.  In certain types of cases, an appeal may be made to the United States Supreme Court.

    The steps outlined above generally constitute "due process of law" in a criminal case.  Since most public health violations are misdemeanors, the warrant, trial, and appeal steps mentioned above are the only ones involved.  The indictment by grand jury, applicable to more serious offenses, is not often applicable to public health cases.  So, for the typical violation of a health regulation:  a warrant would be issued by a judicial official on the basis of an affidavit filed by the health official who has knowledge of the violation of a regulation; a law enforcement officer (usually a deputy sheriff) would serve the warrant on the defendant who would be permitted to become his own bond; the trial is held (usually without a jury) with the evidence being represented, and the judge finding the defendant guilty or not guilty; and a sentence is imposed by the judge if the defendant is found guilty.

    In subsequent parts of this article, we will explore further some of the technical and practical aspects of enforcing health regulations through the use of criminal processes.

B.  Civil Proceedings

    The procedural safeguards which must be met prior to trial in criminal cases do not exist in civil cases.  Any citizen can sue any other citizen.  The question is whether he can recover whether the second citizen will be held liable for damages.  The only protection that we have is the expense of a civil suit for the one who brings it, and that there is an action available for malicious abuse of process against one who brings purely harassing suits against a fellow citizen.

    The pleadings, the legal papers which must be filed, begin a civil case.  First comes the complaint, a formal statement by the citizen who believes himself injured, stating what the injury was and how much money will make him whole again.  The defendant may demur to the complaint, demur by a statement that, even admitting for the purpose of argument (and for that purpose only) that everything the plaintiff says is true, he still has no case against the defendant and it should be dismissed as a matter of law.  If the judge agrees and the demurrer is upheld, the complaint is defective, and the plaintiff may not proceed with the complaint unless he appeals and has the ruling sustaining the demurrer overturned.  If the judge does not agree, the demurrer is overrule and the defendant must answer.

    An answer by a defendant is a statement of his version of what the facts are.  Since the ruling on the demurrer has established that the plaintiff has a case if he can prove what he has alleged, the defendant in his answer must deny some or all of the allegations of the plaintiff, or else allege new facts which explain away the allegations of the plaintiff.  In this manner, the pleadings narrow the issues to those which will be contested at trial.

    Trial of a civil case is quite similar to trial of a criminal case.  Certain differences in procedure are pointed out below under the heading "Order of Events at Trial".  The roles of the judge and jury are the same.  The principal difference is in the burden of proof.  In a civil case, the plaintiff need only show that he is entitled to judgment "by a preponderance of the evidence" as opposed to the "proof beyond a reasonable doubt" rule used in a criminal case.

    The successful party to a civil case is given a legal document known as a "judgment" as proof of his victory.  Usually the judgment states that one party owes the other a definite sum of money.  Execution of the judgment is the process of turning it into cash by legal action.  The sheriff is given the judgment and is required to seize sufficient assets of the defendant, which when sold will satisfy the judgment.  Any balance is turned over to the defendant.  Of course, the defendant may voluntarily pay the judgment without such action.  If the defendant does not have assets with which to satisfy the judgment, the docketed judgment remains a lien for a period of ten years against realty acquired.  Most states provide that a person may have a limited amount of property that is exempted from sale to satisfy a judgment.
 

A.  Criminal Cases

1.    Impaneling the Jury:   A list of persons qualified for jury duty in the county is made each year by county officials.  From this list, a number of names are chosen at random to attend each term of superior court as potential jurors.  As each juror is called, he is examined by the solicitor and by the attorney for the defendant as to his qualifications to sit in the case.  Each juror is subject to challenge either for cause or peremptorily.

2.    Presenting the Case for the State:

a.    Oral testimony comprises the bulk of the evidence in most cases.  It begins with direct examination of each witness by the attorney for the side calling the witness.  This is followed by cross-examination by the opposing attorney.  Redirect and recross-examination may also occur. Still further examination may occur, but seldom does because of rules limiting the scope of inquiry at each step.  Cross-examination is limited, in general, to material brought out on direct; redirect, to that touched on in cross; and recross to that discussed in redirect.

b.    Physical evidence is material which speaks for itself.  An example is the floor mat (introduced in a murder case) which came from the trunk of the defendant's automobile and which is stained with blood of the victim's type.

c.    Documentary evidence might be, for example, a written statement of a defendant in a criminal case, a contract in a suit for breach of contract, or a medical record in a malpractice action.

d.    Direct evidence is defined in various ways by different authorities but usually refers to evidence which, if believed by the jury, will itself by sufficient to sustain a conviction.  An example is testimony by an eyewitness that the defendant did commit the crime with which he is charged.

e.    Circumstantial evidence is that which does not, in itself, prove the point for which is introduced, but from which that point may be inferred by one or a series of inference, nothing else appearing that the defendant used to commit the murder, but would not be direct evidence of that point.  Circumstantial evidence is admissible in both civil and criminal cases and will support a conviction for any offense, including a capital offense.

4.    Presentation of the Case for the Defense:
 

a.    The defense may actively present a case just as the state does.  The items under No. 2 above would be applicable in that event.

b.    Frequently, however, the defendant makes no active defense, relying on his counsel's cross-examination of the witnesses for the state to destroy the case of the state.  In this event, the judge instructs the jury that the defendant is, in effect, saying that the case of the state is so obviously insufficient to convict that he is not even going to bother with presenting any evidence in rebuttal.  The defendant takes his chances on whether the jury, in fact, so believes.  The defendant in a criminal case cannot be required to give testimony that would tend to incriminate him. He may voluntarily testify in his own behalf, and, if he does so, he may be cross examined fully.

6.    Arguments to the Jury:  Arguments to the jury are made in support of their respective cases by both the prosecutor and the attorney for the defense after the defendant "rests" his case.  The prosecutor makes his argument first, it being the right of the defendant to have the last word.

7.    Charge to the Jury:  Open courtroom proceedings are closed with the charge of the judge to the jury.  In this, the judge summarizes the testimony for the benefit of the jury and instructs them in the law to be applied to the facts which they find to exist in the case.

8.    Deliberation of Jury:  The jury then retires to the jury room to deliberate on the case in private.

B.  Civil Cases

    The procedure at the trial of civil cases is essentially the same as in criminal cases, except in the opening and closing.  The opening statements to the jury are made by both attorneys in a civil case, but are not made in a criminal case.  These statements, in which the attorneys set out what they intend to prove and what they contend the situation to be, are a preview of the case from each side.

    The closing of a civil case differs from that in a criminal case only in the order in which the arguments are made.  In a civil case the plaintiff, the party with the burden of proof, has a right to the last closing argument unless the defendant presents no evidence, in which event that right shifts to the defendant.
 

A.  Introduction

    It has been said that public health officials are in the business of education and not that of being law enforcement officers.  That is as it should be.  It is suggested, however, that an occasional use of law enforcement procedures as a last resort can be a valuable educational tool.  When a department is having difficulty obtaining compliance with its regulations in a given area and difficulty in its efforts at convincing the persons directing involved of the public health problem that is likely to result from noncompliance, the department should be willing to take the steps necessary to require compliance.  This might involve criminal prosecution, obtaining an injunction, or seeking some other legal remedy.  These will be discussed subsequently.

    Some health departments will, as a matter of policy, simply not require compliance with their regulations if it involves going into court.  On the other hand, in some departments criminal prosecution is something other than a last resort.  In one instance, the sanitarians in the department were deputized and they then issued citations of violations of regulations.  Both of these extremes are undesirable.  The department that is unwilling to prosecute is not likely to have a very effective regulatory program because word will get around that compliance will not be required.  The department that uses prosecution too freely will lose its image as an educational service and will take on the image of a law enforcement agency.  So a middle ground between these two extremes is desirable enough prosecution to let it be known that you intend to require compliance but not so much as to create a bad image.

    In this same connection, it is suggested that a decision to prosecute should be made only by the health director or department head (depending upon the size of the department), and not by just any employee of the department.   The decision to enforce the department's regulations involves policy considerations that would not normally be delegated to employees below the department head level.

    Before a case is taken to court, the department should have a case that is well documented.  The violation charged should be one that a layman would readily recognize as being detrimental to public health; or, if its relationship to public health is dependent upon technical facts (as an air pollution case, for example), the department should be prepared to present the necessary expert testimony to convince a layman in public health of the consequences of the violation.

    The outcome of prosecution for a public health violation is likely to receive attention by the local press.  Publicity about a successful case can be of considerable value to the department in enforcing its regulations.  But publicity about a losing case can make enforcement difficult.  So, always have a good case and be well prepared with evidence so that the chances of losing are small.

    Many public health officials state that one of the biggest problems with enforcement of regulations is getting the cooperation of the prosecutor.  They point out that, on behalf of the state, the prosecutor of criminal cases deals daily with cases relating to traffic violations, domestic problems, drunkenness, assaults, etc., and that a public health violation is so different from these that he is not familiar with them and sometimes, shows a reluctance to prosecute them.  This is a problem in some areas, not in others.  Where a problem does exist, it is suggested that the board of health, health director, and county civil attorney attempt to make the prosecutor aware of the health department's objectives.  He should know that the department will not ask for prosecution accept as a last resort; that his advice will be solicited in preparing the case; and that his cooperation in essential if the health of the community is to be safeguarded.  In other words, the prosecutor needs to be educated as to the goals, programs, regulations, and procedures of the health department.

    Another approach to the problem of unaggressive prosecution of public health violations is to work out an arrangement whereby the county civil attorney, who is the legal advisor to the health department, prosecutes the health department's cases.  Such an arrangement can usually be made.  This has two advantages: (1) prosecution by one who is knowledgeable about health violations and who is interested and concerned about the public health program and (2) prosecution by one who has assisted in preparing the case.  On this latter point, the civil attorney could be called into a situation that looks as if it might become a court follow through with the prosecution.  This setup can improve considerably the health department's batting average.

B.  Enforcement Through Criminal Prosecution

    Traditionally, health regulations that are not complied with voluntarily, and that are not complied with after the educational process, have been enforced by the use of criminal proceedings.  Other remedies are becoming more prevalent, but criminal prosecution remains by far the most used enforcement resource.  This has its advantages and disadvantages as compared to other remedies.  It is often a slower remedy than an injunction.  Many times cooperation of court officials is something less than enthusiastic, making criminal prosecution troublesome.  Nevertheless, criminal enforcement, actual or threatened, remains a potent force in bring about compliance with your public health regulations.  The threat of criminal prosecution causes citizens to obey many laws that they might not otherwise obey, and this includes health regulations.  As stated previously criminal prosecution for violations of health regulations should be considered a last resort and should not be used except as a last resort.  The image of the health department should be one of an agency providing a public service firmly and reasonably, and this applies to the enforcement of health standards necessary for the protection of the community.

    Criminal procedures to be followed in enforcing health regulations have been specified previously.  Some states require the issuance of a warrant based on an affidavit from a health official, posting of a bond, and a trial.  Others are less formal, providing for the issuance of a summons to the offender directing him to appear at a stated time for the trial.

    Violations of health regulations are usually misdemeanors (less serious offenses).  Still, the state law usually provides for a fine or imprisonment, or both, upon conviction.  Since compliance with the regulations is your objective, a recommended sentence for a person who has violated your regulations is imprisonment--to be suspended, but only upon the condition that the defendant comply with the regulations within a specified period of time.   Then, if the defendant does not comply, imprisonment will follow.

C.  Injunctions

    An injunction (sometimes referred to as a "restraining order" is an order issued by a court requiring a person or persons (or business) to do a certain act or to refrain from doing a certain act.  The order is enforceable by a fine or imprisonment for contempt of court if violated.  An injunction is a remedy in equity as opposed to criminal prosecution which is a legal remedy.   This distinction has two practical aspects.  In the few states that still maintain a distinction between courts of equity and court of law, a proceeding to obtain an injunction would be brought in a court of equity and criminal prosecution would be brought in a court of law.  (Only a very few states still maintain separate courts--most states authorize a single court to grant both equitable and legal remedies.)  The other significant aspect is that some states hold that an equitable remedy may not be obtained if there is an adequate remedy at law and, therefore, than an injunction may not be obtained to prevent an act that would, if committed, be a criminal act.  Where the court so holds, it is suggested that state legislation expressly authorize the issuance of injunctions in spite of the availability of other remedies.  This leaves the health department a choice of the more effective remedy for a given situation.  There are times when one might be more effective than the other.   Sometimes an injunction can be obtained in conjunction with another remedy, for example, the imposition of a fine for post violation.  Also, an injunction can include an order to prevent future violations.

    The two primary advantages of an injunction are that it can be a speedy remedy and that it can be very flexible.  When a situation requires immediate action to protect the public health, an injunction is much faster and far more effective than permitting the act to occur and then to bring a criminal proceeding (the usual procedure to obtain an injunction is discussed below).   The flexibility lies in the fact that the injunction order may be tailored to meet the specific situation, and may specify a means of compliance, a time of compliance, and any other matters.

    As with all other procedures, the state law of a particular state will govern the procedure to be followed to obtain an injunction.  In the absence of unusual provisions, a temporary injunction may be obtained on the basis of an affidavit filed by the appropriate health official.  (Generally, a bond must be posted to protect the party who is being enjoined when a temporary injunction is procured by a governmental agency official.)  The temporary restraining order is directed to the alleged offender and is served upon him.

    Since a restraining order is such an extraordinary and strong remedy and is issued without both parties coming before the court, it usually provides for a hearing within a few days.  At that hearing, both parties are before the court and the court determines whether or not the temporary order is to be continued until a full trial on the issues raised can be held.  At such subsequent trial, the court will issue a permanent injunction if it finds that the circumstances require that the activity be permanently prohibited.  As indicated above, many courts take the position that an injunction will not be granted except for very serious situations.  Still, it is a very valuable resource to a health department that sometimes has to deal with serious situations.
 
 
 

_____________________
Source:  R. Ligon, Legal Aspects of Disease Control Administration.