CRIMINAL PROCEDURE MEYER FALL 2015
· INCORPORATION
o The Bill of Rights was only intended to limit the power of the federal government
o The Due Process clause of the 14th Amendment incorporates most of the Bill of Rights, so it applies to states.
§ Theories of incorporation:
· Full incorporation: The 14th Amendment makes the entire Bill of Rights apply to the states.
· Fundamental rights: The 14th Amendment doesn’t incorporate any of the Bill of Rights. It requires the states to “honor the principles of justice so rooted in the traditions and consciousness of our people as to be ranked as fundamental.”
· Full incorporation plus: The 14th Amendment incorporates all the Bill of Rights, and other fundamental rights.
· Selective incorporation: Not all the Bill of Rights is incorporated, but once a right is found to be fundamental, the entire federal right applies to the states.
§ What the Supreme Court does:
· Considers provisions of the Bill of Rights on a case-by-case basis, to determine whether the right is fundamental to the American system of justice.
· Once the court finds a right fundamental, it almost always finds that it should be enforced under the 14th Amendment.
· Not incorporated: Size of the jury, unanimity of the jury, grand jury requirement.
· Some rights not in the Bill of Rights have been found to be incorporated:
o The right of a defendant to disclosure by the prosecution of evidence favorable to the defendant and material to guilt or punishment.
o Federal law establishes a minimum standard for protection of rights, but states can afford greater protections.
o In Connecticut:
§ The factors used in State v. Geisler are used to determine the extent of state constitutional protections.
§ (1)The textual approach (Give effect to every word in the constitution) (2)Holdings and dicta of the CT Supreme and Appellate courts (3)Federal precedent (4)Sister state decisions (5)The historical approach/debates of the framers (6)Economic/sociological considerations
· RIGHT TO COUNSEL
o The Sixth Amendment right to counsel kicks in after the commencement of adversarial proceedings
o The right applies at any critical stage of the prosecution.
o A critical stage means:
§ Pretrial procedures that would impair defense on the merits if the accused is required to proceed without counsel.
o Johnson v. Zerbst: Those prosecuted in federal court must have counsel appointed under the 6th Amendment.
o Gideon v. Wainright: Applied the 6th Amendment right to counsel to the states through the 14th Amendment.
o Agersinger v. Hamlin: Applied the right to misdemeanors, but only if the defendant will actually be jailed if convicted.
o Scott v. Illinois: A defendant can’t be sentenced to a term of imprisonment unless the state affords the right to counsel
§ What sentences fall into the category of “a term of imprisonment”?
· Alabama v. Shelton: A suspended sentence that may result in the actual deprivation of a person’s liberty is a term of imprisonment.
· Gagnon v. Scarpelli: A probation revocation hearing is not a part of the criminal prosecution, so right to counsel does not apply. Whether appointment is required was left up to the local authorities and the circumstances of the case.
· Nichols v. United States: An uncounseled misdemeanor conviction can be used as the basis for enhancing punishment following another counseled conviction.
o Right to Counsel on Appeals:
§ The 6th Amendment right to counsel does not apply to criminal appeals.
§ But, appellate procedures are subject to the 14th Amendment equal protection and due process clauses
§ Douglas v. California: The 14th Amendment requires a state to provide counsel for a first statutory appeal of right.
§ Halbert v. Michigan: Where a state made a first appeal discretionary, the court required appointed counsel.
§ Frivolous appeals:
· No right to prosecute a frivolous appeal
o Anders v. California: Attorney must cite to something on the record supporting his desire to withdraw because of frivolous appeal.
o Discretionary appeals:
§ Ross v. Moffitt: The 14th Amendment does not require appointment of counsel for discretionary appeals.
o Self-representation:
§ Faretta v. California: Defendants have the right to voluntarily and knowingly waive their right to counsel and represent themselves, through the 6th Amendment.
· Must be knowing and voluntary
· Defendant must be mentally competent
·
risk of death penalty.
o Williams v. Taylor: Attorney didn’t prepare for hearing, uncover records about defendant’s past, or introduce evidence about good behavior in prison. These omissions showed that counsel did not fulfill ethical obligation to conduct thorough investigation, so fell below objective standard of reasonableness.
o Wiggins v. Smith: Counsel’s decision not to go past presentence report in preparation for hearing was not reasonable professional judgment.
o Rompilla v. Beard: Counsel was deficient for not examining a court file when the state had given notice that it intended to introduce the conviction and read from the transcript.
· Ignorance of the law:
o Kimmelman v. Morrison: Counsel did not conduct discovery that would have put him on notice of a search that was in violation of the 4th Amendment because he believed the prosecutor was required to turn over all evidence. Deficiency prong was satisfied because counsel’s actions were based on mistaken understanding of the law.
o Lockhart v. Fretwell: Counsel failed to object to introduction of inadmissible evidence, so deficient representation.
o Lafler v. Cooper: No effective assistance of counsel when defendant is prejudiced by being advised not to accept a favorable plea bargain.
§ Proving prejudice:
· Prejudice can be considered by the court before looking at reasonableness.
· Prejudice presumed when defendant actively or constructively denied counsel
· When the state unconstitutionally interferes with counsel’s assistance
· In certain conflicts of interest
· At the plea stage:
o prejudice shown if there is a reasonable probability that the plea offer would have been presented to the court, the court would have accepted it, and the sentence would have been less severe than what was imposed.
