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


I. Introductory Matters
a. The 14th Amendment
“Nor shall any state deny to any person of life, liberty or property without due process of law.”

b. Theories of Incorporation and the 14th Amendment’s Due Process Clause

i. Fundamental Fairness (Felix Frankfurter)
1. You can’t just look at the words; you must understand history, CL, the Anglo-American system.
2. Must look to the individual facts of that case and everything surrounding the issue.
3. Totality of circumstances approach.
4. DP requires a state’s judicial procedures to be fundamentally fair in all respects.
5. Only apply the Bill of Rights protections against the states that are essential to fundamental fairness
6. Focus on specific facts of the case and harm to D.
7. Cardozo tried to explain it as “fundamental to ordered liberty.”
8. Later, phrase became “fundamental to the American scheme of Justice.”

ii. Total Incorporation (Hugo Black)
1. Black supported the theory that all of the first 8 amendments applied to the states through the due process clause of the 14th Amendment.
2. This view never commanded a majority of the court.

iii. Partial Incorporation (William Brennan)
1. Used the liberty clause of the 14th Amendment to apply most of the Bill of Rights protections against the states.
2. 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.
3. Does not look at the individual facts of each case.
4. Asks, should a particular right apply to the states?
a. Think of the 14th Amendment as a gateway in which some of the bill of rights have gotten through to the states.
b. The states can add more things but 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.
5. This is the majority view of the Supreme Court today.

c. Michigan v. Long – Independent and Adequate State Grounds
i. Held: A state Supreme Court decision will not be overruled if it is based on Adequate and Independent state grounds.
ii. This allows states to add further restrictions than the Constitutional minimums required by the United States Supreme Court. However, if it is not clear from the State court’s opinion, there is a presumption that it is based on the Constitution, and thus the USSC can review the decision.

d. The Basics of the Criminal Case Appellate Review
i. Initiations of Proceedings
ii. Direct Appeal
1. Trial Court
2. Appellate Court
a. Mandatory for Criminal Convictions
b. In Illinois, if it is a capital case, it bypasses this step and mandatorily goes to State Supreme Court for review.
3. State Supreme Court
a. In Illinois, in non-capital cases, this review is discretionary. You must file a PLA, Petition for Leave of Appeal.
4. United States Supreme Court
a. This must be based on a Constitutional claim.
b. Review is discretionary, and requires the filing a Writ of Certiari.
c. 4 Justices must vote to accept the Writ of Cert.
d. If the SC denies Cert, that is the end of the direct appeal.
iii. Post-Conviction Appeals
1. State Court proceeding (in Illinois called a Post Conviction Appeal).
2. For issues that could not have been raised on the direct appeal.
3. Follows the same steps as Direct Appeal, above.
iv. Federal Habeus Corpus Appeals
1. Requires that the appellant MUST have exhausted his state court remedies.
2. Goes through Federal Courts.
3. Largely limited by Congressional Statutes.

II. Right to Counsel
a. The 6th Amendment
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.

b. Development of the Right
i. Powell v. Alabama (1932): The Due Process Clause of the 14th Amendment requires that counsel be provided to indigent defendants in Capital Crimes.

1. The Scottsbourough boys are 9 black kids riding the rails from Tennessee. Two white women claim they are raped. A lynch mob forms. In order to stop the mob, they try them in 9 days. The judge finds they are indigent, and he appoints “everyone.” But for practical purposes, the lawyers (except one) do nothing. The D’s are convicted.

2. Held: The Due Process Clause of the 14th Amendment requires that counsel be provided to indigent defendants in Capital Crimes. Powell wins. This case applies the fundamental fairness doctrine. The system in this case was fundamentally unfair. Some factors include: illiterate teenagers, in a strange town, on trial for their life, without a real lawyer. This does NOT meet the fundamental fairness test of due process.

3. 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.

4. 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.

ii. 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. More importantly, the accused may not waive that right unless a voluntary, intelligent and knowing waiver is given.
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 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.

iii. Betts v. Brady (1942)[Overruled by Gideon v. Wainwright] Denied the application of Johnson to the states. In a felony prosecution for robbery the state does NOT have to

but is one to be determined by the trial courts exercising a judicial discretion on a case-by-case basis.
o Factors that should be weighed:
§ The complexity of the offense charged
§ The probable sentence that will follow
§ The individual factors peculiar to each case.
v Gideon is not directly applicable here since Gideon dealt with felonies. Court held that Gideon is applicable to all indigent D’s who are sentenced to a jail term. Appointed counsel right exists when D could go to jail, jail is a loss of liberty.
v GUILTY PLEAS—counsel is needed so that the accused may know precisely what he is doing, so that he is fully aware of the prospect of going to jail or prison and so that he is treated fairly by the prosecution.

ii. Imprisonment Authorized but not Imposed – No Counsel
1. Scott v. Illinois (1979): The Sixth and Fourteenth Amendments require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense. This creates the “ACTUAL CONFINEMENT” Test.

D was charged with shoplifting, punishable by a $500 fine or one year in jail or both. He was not provided counsel. He was convicted and fined $50. IL found and the USSC agreed—do not extend Argersinger to a case where one is charged with an offense for which imprisonment upon conviction is authorized but not actually imposed.
v Actual imprisonment is the line defining the constitutional right to appointment of counsel.
v The 6th and 14th Amendments only require that no indigent D be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of counsel.
v Difference between Felony and Misdemeanor:
o Felony—it is the potential of jail time that gives you the right to counsel.
o Misdemeanor—it is the actual confinement that gives you the right to counsel. This is an end-oriented analysis.
v Therefore, a judge can REFUSE counsel to D’s if the judge is only going to punish D with a fine and D does not end up in jail.
v Dissent—Brennan, Marshall, Stevens, came up with a 2 dimensional test for the right to counsel:
o Non petty offenses punishable by more then 6 months in jail or
o Any offense where actual incarceration is likely regardless of the maximum authorized penalty.

SCOTT v. ILLINOIS is still good law

2. Caveat: Un-counseled Convictions May Be Relied Upon for Sentence Enhancement
a. Nichols v. US (1994): An uncounseled misdemeanor conviction may be used to increase a permissible sentence for a subsequent conviction.

Rehnquist, CJ held: A logical consequence of Scott is that “an uncounseled conviction 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.