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

v Must know the Justices of the USSC really well
o   STROKe—defense attorney is going to have a stroke, always vote for government
§ Scalia, Thomas, Rehnquist, O’Connor, Kennedy
o   SGBS—Somebody Gets Saved—Souter, Ginsburg, Breyer, Stevens
Theories of the 14th Amendment:
o    You can’t just look at the words; you must understand history, CL, the Anglo-American system.
o   Must look to the individual facts of that case and everything surrounding the issue.
o   Black and Frankfurter did not get along.
o   Have to look to the development of all factors. 
o   DP requires a state’s judicial procedures to be fundamentally fair in all respects. 
o   Only apply the Bill of Rights protections against the states that are essential to fundamental fairness
o   Focus on specific facts of the case and harm to D.
o    Due process means the bill of rights.
o   Everything in the Bill of Rights applies to the states period.
o   Scandal involving the KKK, had to go through a national radio broadcast to explain himself to the American people.
o   Was on the court for 30 years.
o   Very literal. It is not what men make of it we must play by the written rules.
o   This is a minority position; the USSC never got 5 votes for this position.
o   Narrow reading of the Amendments as they exists.
o   Black believed that the Bill of Rights protections were the only protections guaranteed to state citizens by the Constitution.
o   Used the liberty clause of the 14th Amendment to apply most of the Bill of Rights protections against the states.
o   Test to determine whether a specific provision of the Bill of Rights should be made applicable to the states—whether given this kind of system a particular procedure is fundamental—whether, that is, a procedure necessary to an Anglo-American regime of ordered liberty.
o   Does not look at the individual facts of each case.
o   Asks, should a particular right apply to the states?
§ Think of the 14th Amendment as a gateway in which some of the bill of rights have gotten through to the states.
§ The states can add more things by cannot take away rights that have already been provided. Supremacy Clause Article 6 Section 1 Clause 2. To add the state court must base it on adequate independent state grounds and not on the US Constitution, when using adequate independent state grounds it must be clearly expressed otherwise the USSC will have jurisdiction.
·         Defense Attorneys NEVER take a NO from the USSC as a final answer in a state case. 
·         In state courts, the federal constitutional interpretations set the floor for restrictions; the state constitution sets the ceiling.
§ The Bill of Rights is a Bill of Restrictions, restrictions on the federal government.
v For a state violation of a right within the Bill of Rights, first must violate the 14th Amendment DPC or EPC. 
o   US gives 3 criteria for 4th Amendment searches, IL has to follow because it goes to the constitution (supremacy clause) But IL can add criteria. If IL adds and USSC is reviewing, only look for the first 3. 
v USSC has final word on federal constitution interpretation—sets the floor not the ceiling. States can issue further restrictions then fed mandate. On review, USSC, cannot regulate state constitutions, only make sure it is consistent with federal mandate.
o   14th Amendment Gateway—USSC has power to enforce “good ideas” in federal system, but not allowed to in state processes—need 14th Gateway for that.
o   Not all USSC decisions are constitutionally predicated—federal criminal cases based on federal statutory rights do NOT have a binding effect on state proceedings.
6th Amendment—Right to Counsel
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 assertion, to be 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.
v Right to counsel is the most important because it affects the ability to assert other rights.
v A problem of poverty arises for the system of criminal justice when at any stage of the proceedings lack of means of the accused substantially inhibits or prevents the proper assertion of a right or a claim of right. 
o   Government is required to minimize the influence of poverty on the administration of justice. This is the concept of Equal Justice.
o   Recoupment Statutes—the offer of free legal counsel is rendered hollow if D’s are required to make payments for counsel several years following conviction. Reimbursements requirements may discourage Ds from exercising their right to counsel.
v At the time the US Constitution was adopted, most states recognized the right of criminal D’s to be represented by a lawyer but no state guaranteed the right to appointed counsel. 
Powell v. Alabama—1932—The denial of reasonable time or opportunity to secure counsel is a denial of due process. This was the first application of the 6th Amendment to the states through the 14th Amendment DPC.
African American teenagers were tried for raping white women. They were indicted and brought to trial in 24 hours. One white attorney was brave enough to step forward after being appointed to defend them but he had no time to prepare so it was like there was no attorney at all.
v 14th Amendment guarantees that no state shall deprive any person of life, liberty or property without the due process of law. When a D is tried without an attorney he is denied the due process of law.
v TOTAL INCORPORATION—argue this theory here, The 14th Amendment incorporates the entire Bill of Rights against the states. Therefore, the state would be bound by the 6th Amendment and they violated it because they did not allow for the assistance of counsel. 
v During this time period, FUNDAMENTAL FAIRNESS was used. Judicial procedures must be fundamentally fair in all respects. This amendment must apply to the states because it is a violation of fundamental fairness because without the assistance of counsel D’s are not given a fair trial. Look to the history of Anglo-American law to see what is fundamentally fair.
o   In England at the time the US Constitution was ratified, they only recognized a right to retain/pay counsel to argue matters of fact only for those accused of misdemeanors or high treason.
o   The colonies were more advanced on this right to counsel.
o   So when you look at England this right to retain counsel is not so fundamental.
v There is a right to retain an attorney under the 14th Amendment DPC you ALWAYS have the right to retain a lawyer in a criminal prosecution, this applies in federal and in state courts. You cannot be refused the right to bring in a lawyer.
v It was a violation of DP when these teenagers were not given time to retain an attorney.
v This was one of the first USSC cases overruling a state criminal decision relying on the 14th Amendment DPC. (state had to appoint an attorney for these kids in this case)
v After this case some said that whenever there is a death case you have a right to an attorney, some said just for felonies, some said only for illiterates, thus confusion resulted.
v A D may challenge a conviction on the basis that his lawyer was so incompetent as to deprive him of the effective assistance of counsel, this claim is rarely upheld.
FIRST, convince court of a 14th Amendment DPC violation—too quick of a trial, and brief attorney appointment, SECOND, pound home the facts, kids were alone, no family or friends, in a strange city.
Johnson v. Zerbst—1938—6th Amendment requires appointment of counsel in all federal criminal cases if the accused cannot afford an attorney so long as the accused does not intentionally and competently waive that right.
D was charged with counterfeiting. This was a federal court case so just rely on the 6th Amendment.
v In federal prosecutions we hold that whenever a person is on trial for a felony they have the right to retain an attorney and if they cannot afford one, one will be appointed for them. 
v It took over 25 years to conclude that this also applied to state D’s.
v Gave indigent Federal felony D’s the right to appointed counsel.
Using Powell and Johnson—if right to counsel is such a fundamental idea, but 14th Amendment DP with 6th Amendment and apply the right to the states—undeniable right to counsel. State argues different circumstances—crimes lacking Powell-like circumstances, then there is no DP violation.
Betts v. Brady—1942—Denied the application of Johnson to the states. In a felony prosecution for robbery the state does NOT have to provide a lawyer for an indigent D.
D was tried for robbery in state court and was unable to employ counsel and requested that one be appointed.  The state refused, D waived jury trial, plead not guilty and conducted his own defense and was convicted. He then brought a habeas corpus proceeding in federal court.
v USSC refused to apply Johnson via the 14th Amendment DPC because appointment was not required in all cases. The court chose TOTALITY OF THE CIRCUMSTANCES; instead thus each case must be evaluated on a case-by-

n that is valid under Scott because no prison term was imposed may be relied upon to enhance the sentence for a subsequent offense, even though that sentence entails imprisonment. HELD—you can use an un-counseled misdemeanor conviction that only resulted in a fine to added to sentences of later crimes.
Alabama v. Shelton—2002—After being convicted of a misdemeanor, D an indigent D who had not been afforded counsel was sentenced to a jail term of 30 das which the trial court immediately suspended. D was then placed on 2 years unsupervised probation. HELD—a suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered the D is incarcerated not for the probation violation but for the underlying offense. The un-counseled conviction at that point ends up in actual deprivation of a person’s liberty. 
v You have to appoint counsel in a misdemeanor case if the judge wants the option of putting someone on probation.
v In Nichols it was a new conviction beyond a reasonable doubt.
When the Right To Counsel BeginsThe right to counsel begins with the charging papers (preliminary hearings, arraignments, informations, etc). Once the complaint is filed and D is before a judge he has a right to counsel. D also has a right to counsel at critical stages, typically defined as bodily confrontations, lineups.
o   The 6th Amendment right to counsel is not brought in at the pre-charge stage
§ Interrogation brings in the Miranda right to counsel, but 6th Amendment right to counsel is not brought in at the pre-charge stage.
o   The significant thing to trigger a criminal prosecution:
§ Adversary judicial proceedings have commenced, you have been charged
·         Grand jury issues an indictment
·         An information is issued after preliminary hearing
·         Nothing is different from an indictment or an information
·         If you are brought before a judge and a complaint is filed and it is brought before a judge stating that there is probable cause to believe that D has committed a crime, judge sends it to grand jury or prosecution has a preliminary hearing, complaint also triggers a prosecution
·         An arrest does NOT trigger a prosecution
·         6th amendment is limited to “criminal prosecutions”
§ And Prosecution is at a critical stage
·         This is a phrase the court has come up with but safes lawyers from having to bunk with their clients
·         If you have already been indicted and they put you in a lineup then you do have a right to have counsel present at the lineup
Limits on the Right to Counsel:
(1)   Prosecution has begun and
(2)   At a critical stage in the proceedings.
Right to Counsel on Appeal (When Right to Counsel Detaches)
Griffin v. IL—1956—right to free transcript for appeal if indigent. D has an automatic right to have the conviction reviewed at an appellate level. But int his case D could not afford a transcript. The state has a duty to provide this transcript. There was no majority opinion in this case.
v The court uses the EPC; you cannot discriminate between the rich and the poor. There can be no equal justice when an appeal depends on the amount of money a man has.
Mayer v. Chicago—1971—indigent D is entitled to a transcript even for a misdemeanor case in which he was only sentenced to a fine and there was no right to counsel.
Criminal prosecutions end at sentencing, unanimous decision.
Douglas v. California—1963—D’s have the right to appointed counsel on the first appeal as a matter of right.
Used Griffin, principles of equal justice, the appeal should not depend on the amount of money that a D has, if it does it renders the ritual meaningless.
A criminal prosecution ends at sentencing so there is NO right to appointed counsel on appeal