Criminal Procedure: Steinman: Spring 2012
DPC Analysis
· Go with DPC argument if no 4th/5th/6th violation
· Procedural DPC: Limits gov’t ability to deprive someone of life. liberty, or property (5th and 6th)
o Standard: “Whether the state practice offends some principle of justice so rooted in the traditions and conscience of our people to be ranked as fundamental” or “Transgress any recognized principle of fundamental fairness in operation”
· Substantive DPC: Liberty interests; right to live without unnecessary and arbitrary gov’t interference
o Interests expressly enumerated in the Constitution
o Fundamental liberties not listed but still considered essential
· DPC violation occurs if offend sense of justice (Rochin)
· If Outrageousness
· Factors:
o Sentence: The harsher the sentence the more likely D/P violated(ex. Death penalty vs. 8 years in prison)
Shocks the Conscience Test (Rochin)
· Only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience, necessary for a due process violation
Rochin v. California (1952): “Shocks the conscience” Police had doctor induce vomiting to get morphine pills. Convictions can’t be brought about by methods that offend a sense of justice.
· County of Sacramento v. Lewis (1989): Police did not violate substantive due process by causing a death through reckless disregard (high speed chase), only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element of arbitrary conduct shocking to the conscience necessary for a DPC violation
Bodily Search Analysis (Schmerber)
· Whether the police are justified in requiring the individual to submit to the blood test for drunk driving
o Probable cause
· Whether the means and procedures employed to conduct the test are reasonable
Schmerber v. California (1966): Extraction of blood didn’t offend sense of justice. Blood is not testimonial (so 5th right against self-incrimination not applicable. Protection against unreasonable search and seizure was satisfied.
Relevant Factors in Analyzing “Due Process” and “Reasonableness” (Schmerber)
· Nature of the intrusion (place or body part invaded)
· Manner in which the intrusion was done (force or no force)
· Nature of the gov’t interest (drugs or DUI)
· Reliability (cops or doctors)
· Fairness
· Probable Cause to arrest and/ or search
· Presence of arrest/search warrant
· Intent of police
· Emergency situation for police
The Federal Courts’ “Supervisory Power” Over the Administration of Federal Criminal Justice
· Power of federal court to undo convictions in state courts is limited to the enforcement of those fundamental principles of liberty and justice secured by 14th amendment DPC.
· However, the standards of federal criminal justice are not satisfied by observance of those minimal historic safeguards. So that’s why there is supervisory power for federal courts, but can’t go too broad
· United States v. Payner (1980): Supervisory power does not authorize a federal court to exclude evidence that did not violate D’s 4th amendment rights
· 3-fold purpose for supervisory power (US v. Hastings (1983))
o To implement a remedy for violation of recognized rights
o To preserve judicial integrity by ensuring that a conviction rests on appropriate considerations validly before the jury
o A remedy to deter illegal conduct
· State courts in order to have their decisions be immune from SCOTUS review must indicate that its ruling is based on separate, adequate, and independent state grounds
o State courts can interpret the state constitutions as going beyond federal constitutional guarantees. (I.e. the USC only sets the floor, not the ceiling)
Chapter 4: The Right to Counsel
1. The Right to Appointed Counsel and Related Problems
6th Amendment:
· Applied to states in 1963 (Gideon)
· Today: Guarantees counsel at any criminal trial which results in deprivation of liberty
When 6th Applies:
· D entitled to assistance of counsel when:
o Adversary judicial proceeding has been initiated against D (by formal charge, pre-lim hearing, indictment, information, or arraignment) [First appearance before a judicial officer]
o At a “critical stage” of the criminal proceeding
· At trial stage, Fundamental and binding on the states by virtue of the 6th and 14th amendments
· Doesn’t apply to appeals
Critical Stage Analysis (US v. Wade- 1967)
· Whether potential substantial prejudice to the Ds rights inherent in the particular confrontation, and
· Whether counsel can help avoid that prejudice
Examples of When 6th Does/Does Not Apply
· If it is no longer a general inquiry into an unsolved crime, but there is focus on particular suspect, who is taken into police custody, interrogated, then right to counsel. (Escobedo v. Illinois (1964)): D asked for lawyer; lawyer came, but police refused to let him meet with client, unconstitutional
· Line-up not considered critical because prior to indictment; criminal prosecution doesn’t begin until indictment, formal charge, or the initiation of adversary proceedings. (Kirby v. Illinois (1972))
· When judicial proceedings are initiated: Whether by way of formal charge, preliminary hearing, indictment, information, or arraignment (Brewer v. Williams (1977))
· Administrative detention. The accused needs to be confronted by the procedural system, or by expert adversary, or by both in a situation where the results of confrontation might settle accused’s fate and reduces trial to mere formality, Right to counsel attaches. So administrative detention is not considered a critical stage (US v. Gouveia (1984))
Prejudging Issue: Determining whether to appoint counsel for indigent defendant
· Preliminary hearing judge has dilemma if indigent is charged with misdemeanor
· If appoint counsel- message is that D should go to jail
· If no appointment- can’t send to jail
Factors Judges Use to Resolve Prejudging
· Ask DA if he does want the judge to appoint an attorney for the D
· Ask the DA what penalty seeking if D found guilty
· Review facts of a particular case
· Focus in the abstract on the class or the type of case against the D
· Always appoint an attorney
· Never appoint an attorney, assess the potential for some resulting stigma or unfairness
Powell v. Alabama (1932): Convictions of Negro youths who were tried without effective appointment of counsel were reversed. Necessity of counsel was so vital and imperative that the failure to appointment counsel was a denial of due process. The holding was based on DPC, not 6th amendment. There is a 1) Right to retain their own counsel; 2) Right to appointed counsel if they could not retain counsel.
Johnson v. Zerbst (1938): 6th right to appointed trial counsel in all federal criminal prosecutions that sought to deprive the defendant of life or liberty.
Betts v. Brady (1942): DPC analysis; doesn’t incorporate
Factors (Ake)
· Private interest in obtaining the safeguard sought
· State interests that will be affected if the safeguard is provided
· Probable value of the safeguard sought
· Note: Essentially a cost-benefit analysis
Basic Tools
· Whether resource is a virtual necessity to D
· A resource without which the defense fails
· Most expert services remain luxuries for indigent Ds, because they are not outcome determinative within themselves.
· Basic tools do little for most indigent Ds
Access to “What” For the Defendant
· Examination by expert
· Testimony from expert
· Defense’s own expert
· Assistance for the defense attorney in preparation of the case
· Assistance for the defense psychiatrist in the preparation of the case
Ake v. Oklahoma (1985): DPC requires that the state provide access to a psychiatrist to an indigent D who makes a preliminary showing that his sanity will be an issue at trial. No constitutional right to choose psychiatrist of his personal liking or to receive funds to hire his own. Most states have limited this right to capital cases
Chapter 5: The Role of Counsel
The Right to Effective Assistance of Counsel
· Attaches only at proceedings at which the right to counsel attaches
· Provide reasonably strategic services
Duties of Counsel
· Professional judgment, within bounds of law, solely for benefit of client
o Free of compromising influences and loyalties
· Interview his client early on in their relationship, keep client informed of developments in the case, consult with client on important decisions
· Conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction
I. Effectiveness of Counsel Test (Strickland Standard):
A. Burden on D to show:
1. Deficiency: That counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the D by the 6th Amendment
a. Have to show deficiency first
b. Counsel did not provide “reasonably effective assistance”
c. Needs to fall below “prevailing professional norms”
d. Presumption of competence
e. Judicial scrutiny highly deferential
2. And Prejudice: Errors were so serious as to deprive D of fair trial
a. Reasonable probability that but for deficiency, result would’ve been different
b. To establish prejudice: whether the particular harm suffered by the D due to counsel’s incompetence rendered the D’s trial fundamentally unfair
