Crim pro Outline Uelman Spring 2007
I. Due Process
A. Historical interpretation: Fundamental Rights/Incorporation
1. Palko v. CT – 1937 – does not incorporate Double Jeopardy to the states; overruled in Benton v. Maryland in 1969
2. Adamson v. CA – 5th A right against self-incrimination not incorporated
B. Modern approach: “selective incorporation”
1. only certain rights in Bill of rights are incorporated against states by 14th A; some are not fully incorporated
2. Jury trial incorporated right for serious, non petty offenses in Duncan v. Louisiana – lack of jury trial held violative of D.P where, though misdemeanor (simple battery), max sentence was 2 yrs.
3. DPC of 14thA incorporates
a. 4thA S/S; exclusionary rule
b. 5thA rights against self-incrimination, Double jeopardy, and jury trial
c. 6thA right to counsel, speedy and public trial, confrontation
4. Not incorporated rights: grand jury, unanimous jury verdict, right to rx bail.
II. Right to Counsel
A. Right to counsel before 1963
1. Betts v. Brady – 1942: right to counsel not fully incorporated and therefore D’s request for counsel for robbery charge may be denied and counsel only provided for rape and murder unless failure results in conviction lacking fundamental fairness
2. Fundamental fairness test is a totality of the circumstances inquiry to determine in counsel was necessary
3. Betts overruled in Gideon
B. Modern right to Counsel
1. Right to counsel is fundamental and essential to a fair trial and is therefore incorporated by 14thA against the states. Gideon v. Wainwright 1963: Florida law reserving PDs only for capital crimes held unconstitutional. Under Gideon Ds need to have equal opportunity to prevail at trial
2. Rationale: having counsel ensures faith in criminal sentences reliability.
3. rationale: b/c you cannot tell b/f trial whether having an attorney will make a difference so all Ds must have one to ensure DP
C. Scope of Right to Counsel:
1. Actual Imprisonment test: Gideon applies to any D facing risk of actual imprisonment, Argensinger v. Hamlin.
a. Reversible error occurs only where actual imprisonment imposed
i. Scott case: No error where failure to provide counsel to indigent charged w/ shoplifting b/c although it was punishable up to 1yr, actual sentence was $50 fine.
b. Suspended jail sentences qualify as actual imprisonment for purposes of right to counsel error assessment:
i. Alabama v. Shelton: unconstitutional violation of 6thA right to counsel for unrepresented indigent to be imprisoned on a suspended sentence for a probation violation.
ii. Key inquiry is whether the adjudication of guild corresponding to the prison sentence is sufficiently reliable to permit incarceration.
2. Right to Counsel for Appeals?
a. Where states provide appellate review for error, they must make appeal process available regardless of the finances of the defendant, Douglas v. CA
i. Douglas v. CA – indigent D sought appointed counsel to represent him in his appeal after conviction. SC held D must be given atty for initial appeal; judgment reversed on equal protection grounds
ii. Justice Harlan’s dissent says should have been decided on DP not EPC rationale
b. State must provide free transcript as well to indigent D’s where transcripts are required for appeals.
c. But indigent Ds not entitled to appointed counsel to assist in discretionary appellate review. Ross v. Moffit State supreme courts are not courts of error review but are for settling important questions of state law with uniformity.
3. Betts not completely gone for scope of right to counsel inquiries: use totality of circumstances test to assess fairness: to be given a jury consultant or investigator at the expense of the state, indigent Ds must show how it is essential to fair trial on case-by-case basis.
4. When does right to counsel attach in the criminal process?
a. Attaches when adversa
y for Fruits purposes.
b. Exceptions: a taint may be purged in 3 ways
i. Obtained independently
ii. Intervening act of free will by D
iii. Inevitable discovery
3. Exclusionary Rule incorporated against the states in Mapp v. Ohio
a. Court held the constitution, in prohibiting the illegal searches and seizures, requires that evidence obtained in violation of the constitution be excluded to maintain the power and force of the rights protected.
b. Rationale: 4 legs of the exclusionary rule (1) privacy, (2) government integrity, (3) self-incrimination 5th A, (4) deterrence
c. Over time 3 legs were sawed off, leaving only the deterrence rationale (see Leon)
4. Scope of Exclusionary rule
a. Applies only to criminal not civil trials, Penn Bd of Prob. And Parole v. Scott
b. Exceptions to ER:
i. Good faith Belief in valid warrant counters compelled exclusion: US v. Leon
ii. Good faith reliance on law, defective warrant or clerical error are exceptions.
iii. Evidence obtained in violation of the ER may be used for impeachment
c. ER does not apply to:
i. parole revocation proceedings, Penn Bd of Prob. And Parole v. Scott: Parolee not entitled to all DP rights to which criminal D has b/c parole revocation proceedings are informal, administrative proceedings.
ii. grand juries (unless in violation of federal wiretapping statute),
iii. internal agency rules
iv. civil proceedings
v. in court IDs
vi. evidence discovered as a result statements in violation of Miranda.
vii. Habeas Corpus
5. Exceptions to the good faith exception:
Airhead exception: warrant is so facially deficient (lacking PC) that any officer would know it could not be valid
