Criminal Procedure Outline

CRIM PRO OUTLINE

Ineffective Counsel

The Burden is on the D to show

Elements of test: Performance was deficient, led to prejudice
· Strickland: What a Reasonable, Professional Competent attorney would have done (RPC)…Objective test
§ DA will say lawyer has the duty to INVESTIGATE or make REASONABLE DETERMINATION that investigation was not necessary
§ Factors:
· Did PD investigate?
· Question witnesses?
· Call/ c-x crucial witnesses
· How much time spent on the case based on the nature of the charge
· Was the decision reasonable
· Uncertainty of evidence
· Defense strategy
· Client requests
· Was the trial short
· Strickland: REASONABLE PROBABILITY result would have been different
§ Lockhart: prejudice when attorney’s performance renders the results of the trial unreliable or the proceeding fundamentally unfair
§ PD would try to get presumed prejudice b/c it then shifts the burden to DA
· 3 ways to get presumed prejudice:
o Actual denial
o Constructive denial
§ Asked for it didn’t get it
§ Didn’t c-x
§ Didn’t investigate
o Conflict of interest
§ Factors:
· Reasonable probability result would have been different
· Reasonable doubt respecting guilty
· Deprive of fair trial
· Trial achieved a reliable result
· Outcome uncertain

Expert Assistance

Burden is on the D

The two elements are the D’s mental state and the idea of basic tools

Ake test: Preliminary showing that at the time of the offense sanity was a significant factor at trial AND expert assistance has to be necessary to prepare an effective defense

DA tries to limit Ake by distinguishing it (it was a capital case, mental state (insanity) was an issue in Ake, limited to psychiatrist)

PD will want to view Ake broadly (it’s about fundamental fairness/adequate opportunity, due process means at a minimum, you must be provided the basic tools for the defense)

Factors:
· Did D know right from wrong
· McNaughten test
· Is the assistance necessary?
· At a minimum, you get a psychiatrist
· What would the expert assistance provide differently?
· PD: needs an independent expert
· MUST have said at trial that expert assistance was necessary in order to preserve it on appeal
· Give deference to trial judge
· Financial considerations
· Was the defense effective w/out the aid?

D has access to expert assistance at Capital Sentence proceedings OR when the state presents psychiatric evidence of the D’s future dangerousness

CA Test: An indigent D has the right to reasonably necessary ancillary services

Probable Cause

When there is no warrant, the probable cause required to arrest/search is established by the test: substantial basis that the reviewing court would find probable cause

Factors:
· Veracity and credibility of informers
· Reliability of information
· Basis of informer’s knowledge
· Was it particular, specific knowledge?
· Police corroboration
· Number of different informers-do they know each other?
· Fn. 13: Innocent activities may add to the suspicion

When warrant is relied on in good faith (Leon)

· Leon: if the magistrate issues a warrant and the cops rely in good faith on the validity of the warrant, then the evidence will be admitted even though it was later demonstrated that the warrant lacked probable cause
§ Fn. 19 assumes that the execution was good
· Good faith exception still applies when there are clerical errors in the warrant. Arizona v. Evans
· When cop makes misrepresentations on affidavit. Substantial prelim showing that (Franks v. Delaware):
§ False statements knowingly and intentionally or with reckless disregard for the truth were included in the affidavit AND
§ The false statement is necessary for the finding of probable cause
· D must show a violation of the warrant
· DA must then show goo