Criminal Procedure Outline

Kit Kinports for Criminal Procedure in Spring 2011

I. Constitutional History

A. Constitutional Interpretation

1. Limited Bill of Rights

i. Barron v. Baltimore – the Bill of Rights only applies to the federal government (never overruled)

ii. Civil War Amendments – aimed at the states, contained the due process clause of in the 14th A

2. Interpreting Due Process

i. Total incorporation theory – (Justice Black) due process clause meant to incorporate all the bill of rights and bind the states. Majority has never endorsed this theory

ii. Fundamental Fairness/Ordered Liberty – due process clause prevents the state from violating fundamental rights or rights implicit in ordered liberty. Court to look at facts of each case

iii. Selective Incorporation – (1960s) due process clause protects fundamental rights, but looks as rights as abstract and focuses on the right rather than the facts

a. Unincorporated Rights

1) Fifth amendment right to a grand jury indictment

2) Seventh amendment trial by jury in civil cases

II. Right to Counsel

A. 6th Amendment Protections

1. For Felony Prosecutions (max jail sentence is over 1 year)

i. Powell v. Alabama – 14th A (state criminal case) due process demands that defendants have adequate counsel.

ii. Johnson v. Zerbst – 6th A constitutionally guarantees right to appointed counsel for indigent defendants in all federal criminal cases.

iii. Betts v. Brady – 6th A right to appointed counsel only applies to states in special circumstances where the defendant would be unfairly tried without the assistance of counsel.

iv. Gideon v. Wainwright – selectively incorporated the 6th Amendment right to counsel for all state felony prosecutions. Indigent defendants have a right to court-appointed counsel. (Overturned Betts)

a. Rationale

1) Betts was incorrectly decided and out of line with precedents

2) Equal protection between indigent defendants and “wealthy” defendants.

2. For Misdemeanor Prosecutions and Petty Offenses

i. Argersinger v. Hamlin – defendant cannot be sentenced to jail time without the 6th A right to counsel at state or federal trial.

ii. Scott v. Illinois – stated the Argersinger requirement only applies to the punishment that the defendant actually received, not the maximum sentence they could have received.

iii. Nichols v. U.S. – previous convictions where defendant did not have counsel can be used to enhance the punishment of new convictions that had the aid of counsel.

iv. Alabama v. Shelton – right to counsel extends to crimes where the punishment was a suspended sentence.

3. Summary

i. Rule – A Defendant’s 6th Amendment right to counsel is triggered for the prosecution of any felony. D cannot be sentaced to jail time for misdemeanor unless provided counsel. Gideon and Shelton.

ii. Trigger of Right – both elements must be present:

a. Adversary Judicial Proceedings have begun (defined by Brewer v. Williams)

1) Indictment By Grand Jury,

2) Information has been filed with the court,

3) Arraignment (first appearance before the court) has taken place,

4) A preliminary hearing has taken place, OR

5) Formal charges have been filed (catchall for any other means a state may use).

AND

b. It is a Critical Stage in the prosecution (defined by U.S. v. Gouveia)

1) Proceedings where the defendant is confronted by the procedural system or by a government adversary (i.e. interrogation or questioning), AND

2) Where the confrontation is likely to have a substantial impact on the fairness of the defendant’s trial.

· United States v. Ash – witness picking suspect from photos in not a crucial stage

· Kirby v. Illinois – a line-up after indictment is a crucial stage because being confronted by a government adversary is likely to affect the outcome of the case

· Coleman v. Alabama – prosecutor presenting witnesses at a preliminary hearing is critical

c. 6th amendment right to counsel ends post trial

B. 14th Amendment Protections

1. Right to Counsel

i. Douglas v. California – state must provide indigent defendant with counsel for appeal of conviction.

a. Rationale – equal protection of indigent defendants, due process because a defendant on appeal must confront the “gantlet” of procedural obstacles involved in appeal.

ii. Ross v. Moffitt – state is not required to provide indigent defendant with counsel for discretionary appeals because he has already had counsel appointed for previous appeals.

iii. Halbert v. Michigan – state must provide indigent defendant with counsel for First Appeal (whether it is discretionary or a right of appeal).

a. Rationale – due process requires that D’s receive “bare minimum” and “adequate services”.

2. Right to Other Trial Materials

i. Griffin v. Illinois – state must provide indigent D with state felony trial transcript for use in appeal.

a. Rationale – equal protection for indigent to have proper materials to file appeal.

ii. Mayer v. Chicago – extends right to transcript for indigent D to state fine-only convictions.

iii. Ake v. Oklahoma – state must provide indigent D with psychiatric expert to use in defense.

3. Summary

i. Rule – 14th A requires state to provide:

a. Counsel for indigent defendant’s First Appeal (whether it is a discretionary appeal or right of appeal). Halbert.

b. The “basic tools” that are required for D to mount an effective defense.

III. 4th Amendment Arrest, Search, Seizure

A. Roadmap (Does 4 A govern)

1. Has there been a search or seizure?

2. Was there a violation of the 4th Amendment?

i. Do the police have the required probable cause?

ii. Do police have the required warrant?

iii. Exception to Warrant or Probable Cause

3. Fruits of the Poisonous Tree

B. Definition of a Search

1. Rule – Police intrusion on D’s reasonable expectation of privacy (objective & subjective) when police use means beyond those that simply enhance natural senses (binoculars, flash lights, etc). Katz.

i. Katz v. U.S. – police wiretapped the outside of a phone booth D was conducting illegal business in. Court decided that this constituted a search and that police violated D’s 4th A by intruding without a warrant.

a. The 4th A was designed to protect people, not specific places.

b. A search has occurred when police intrude on D’s reasonable expectation of privacy

1) Subjective (did the D have an expectation of privacy at the time and place?)

2) Objective (was that expectation reasonable?)

c. Police intrude when they observe or detect beyond their natural senses.

2. Electronic Surveillance

i. Standard – not a search if a bystander obtain the evidence without the use of the technology.

ii. U.S. v. Knotts – police electronic tracking of D while he is driving in public does not constitute search.

iii. U.S. v. Karo – police electronic tracking of objects inside D’s home was search, home not open to public and therefore D had a reasonable expectation of privacy inside.

iv. Kyllo v. U.S. – police use of a thermal imager to scan house from outside for heat produced by marijuana production was a search. Because it was sense enhancing technology that would allow search inside D’s home that otherwise would not be accessible.

3. Third Party Involvement

i. Rule – once D had turned evidence over to a 3rd party, he no longer has a reasonable expectation of privacy in it.

ii. California v. Greenwood – suspect left incriminating evidence in his garbage on the street, police got the garbage man to give it to them. Court found this did not count as a search because police