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Criminal Procedure
John Marshall Law School, Chicago
O'Neill, Timothy P.

O’Neill – Criminal Procedure – Police Investigation – Spring 2016
States are obligated to comply with constitutional provisions that have been incorporated through the 14th amendment. (This includes all of Bill of Rights except for Fifth Amendment right to grand jury).
States may further restrict their government (police & prosecution), and therefore a defense attorney need never take “no” from the S. Ct. A diligent and prudent defense attorney will always look to his state’s constitution and statutory code to determine if government’s action was unlawful. The U.S. constitution is merely a starting point. Something may very well be illegal under state law but constitutional under federal law. Virginia v. Moore.
States have the final say as to what their own constitution mean, so long as they clearly state that they are relying on their own constitution. Where a state court bases its decision on both federal and state law, the S. Ct. will not exercise jurisdiction over the case if state ground is: 1) adequate to support the judgment, and 2) independent of federal law. Michigan v. Long.
** Always check whether the jurisdiction where the fact pattern occurred has gone beyond what the S Ct. has held!
Sixth Amendment – Right to Counsel
TEXT: “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to e confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.”
Does the right to counsel apply?
Initially, defendants only had a right to counsel when charged with a federal felony. Johnson v. Zerbst. (You could always retain an attorney. 6th amend deals with when you can’t retain/afford one).
The right to counsel felonies applies to states through the 14th amend. Gideon v. Wainwright.
Scott v. Illinois: Plurality opinion:
The right to counsel applies in all cases where the defendant receives jail time, regardless of whether the crime committed was a felony or misdemeanor. (Look at loss of liberty). Argersinger v. Hamlin.
This includes suspended sentences. A lawyer must be provided for the accused in order to impose a suspended prison sentence. But not the second time around. Alabama v. Shelton.
Defense Counsel: (Baldasar v. Illinois) – even 1st offense should require right to counsel because of three-strike rule. (There is risk of loss of liberty).
Prosecution (Nicholas v. United States) – all three convictions are valid.
Has the right attached
** Criminal prosecution, NOT criminal proceedings!
The right to counsel attaches at or after the initiation of adversarial judicial proceedings. (i.e. initial appearance where learning of the charge, preliminary hearing, indictment, information, arraignment, etc. – not being in jail cell or about to be arrested) I other words, right to counsel attaches when prosecution “has used the judicial machinery to signal a commitment to prosecute.” A prosecutor need not be present at the first state for the right to counsel to attach. Rothgery v. Gillespie County. “Critical Stage” – is when the attorney needs to be there, a stage where substantial rights of the criminal accused are affected, such as being brought into court.
First the right attaches, THEN the lawyer needs to be present. Difference between having a right, and exercising a right.
14th Amendment Due Process Clause requires that an appointed counsel needs to have access to resources such as experts. The government must provide a competent (expert) psychiatrist to the defense where sanity is likely to be a significant factor at trial. The defendant is required to make a preliminary showing that sanity is likely to be a factor. Ake v. Oklahoma.
First look at the law of the jurisdiction to see what it says about experts (i.e., does it provide one). Then an argument under Ake can be used for appointment of expert witness.
Waiver of counsel and proceeding pro se
Faretta v. California – The defendant can waive right to counsel if the waiver is voluntary, intelligent, and knowing. There is no threshold amount of legal sophistication to proceed pro se. The right to proceed pro se, however, is not an absolute right. An individual who proceeds pro se may not thereafter claim ineffective assistance of counsel.
Martinez v. Court of Appeal of California – There is no right to proceed pro se on initial appeal, as the 6th amend does not apply to appellate proceedings.
McKaskle v. Wiggins – A judge may appoint stand-by counsel to relieve the judge of the need to explain and enforce basic rules of courtroom protocol or to assist the defendant in overcoming routine obstacles that hamper his clearly indicated goals. There is no constitutional right to demand stand-by counsel. If standby counsel gets involved too much, it’s not harmless error, but an automatic reversal of conviction.
Appeals: The 6th amend ends at sentencing. The 14th amend requires that all indigent defendants be furnish a transcript, at least in situations where allegations that manifest errors occurred at the trial are not denied. Griffin v. Illinois.
Douglas v. California: if you have an appeal as a matter of right (anything after the first appeal generally speaking) then you should have a right to an attorney for that appeal.
Although there is a right to counsel for the first appeal, there is no right to counsel for discretionary appeals because the defendant is the one initiating (or perpetuating) the proceedings. Due process concerns are satisfied with right of counsel for first appeal: adequate opportunity, not equal opportunity. Ross v. Moffitt.
IAC (ineffective assistance of counsel) claims
Two prong test: (Strickland v. Washington) – Burden of defendant.
Counsel’s performance was deficient, and
But for counsel’s deficient performance, the result would have been different. (Prejudice)
The Strickland test is VERY deferential to the government, and there is strong presumption that counsel’s performance was acceptable.
The inquiry is normally limited to evidence contained within the record and briefs. Post-conviction petitions where the defendant may introduce outside evidence not introduced at trial.
An argument for IAC often has traction as applied to death penalty sentences. IAC claims can be made against conviction and/or sentencing.
Fourth Amendment – Search & Seizure
TEXT: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches an

distinguishing factors seems to be car vs container).
United States v. Karo/Knotts
FACTS:chemical company, on instruction from the police, puts a beeper in a drum of chemicals purchased in abnormally large quantities
ISSUE:is the installation a search or seizure?
– majority says no – no search or seizure – government wins
– dissent yes because the government is exercising dominion or control and so there is a seizure
ISSUE:is the tracking a search or seizure?
– majority says no – no privacy interest violated in following the car because the car is public and police could follow you with or without a tracking device – government wins
ISSUE:is the tracking once the beeper is in the home a search or seizure?
– majority says yes cause know we're talking about what's going on inside a home – ∆ wins
In Knotts, a short-distance signal beeper in the defendant's car was tracked during a single trip for less than a day. The Knotts Court held that a person traveling on public roads has no expectation of privacy in his movements, because the vehicle's starting point, direction, stops, or final destination could be seen by anyone else on the road
United States v. Jones: (followed for a month). The installation of a GPS tracking device on Jones' vehicle, without a warrant, constituted an unlawful search under the Fourth Amendment. The Court rejected the government's argument that there is no reasonable expectation of privacy in a person's movement on public thoroughfares and emphasized that the Fourth Amendment provided some protection for trespass onto personal property.
United States v. Jardines: (trespass dimension to reasonable expectation of privacy). Dog coming to porch of the house. The S. Ct held that this was a “unlicensed physical instruction” because the government had a specific purpose. (INTENT).
4th amend not implicated:
** When there is no reasonable expectation of privacy (Katz).
Open Fields Doctrine (Oliver v. U.S.):4th amend does not protect an “open field”, which is distinguishable from the curtilage of a home, as there is no reasonable expectation of privacy. U.S. v. Dunn factors:
The proximity of the land to the home
The area is included within enclosures surrounding the home
The nature of the use to which the area is put, and
The steps taken to protect the land from observation.
Chemical composition test to see whether a substance is a drug does not amount to search (U.S. v. Jacobson) – FedEx Case.
Binary Search (U.S. v. Place): no intrusion on an individual’s reasonable expectation of privacy (and therefore no search) where a dog is alerted to drugs. The dog can only reveal whether there is drug or not.