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Criminal Procedure
South Texas College of Law Houston
Williams, Kenneth A.

Criminal Procedure Williams Spring 2015
Civil v. Criminal
·         Criminal
o   Defendant has more rights than civil (such as the right to counsel)
o   Defendant doesn’t have to testify (plead the 5th!)
o   BOP – State has BOP by beyond a reasonable doubt
o   Only the State can bring forth charges
o   Objective – deter wrongdoing, retribution, punish, incapacitate dangerous people
·         Civil
o   Parties have to testify if called as witnesses
o   BOP – plaintiff has BOP by preponderance of the evidence
o   Private citizens or state can bring charges
o   Objective – compensate a person for loss, injury, etc.
·         Investigation
o   Police will conduct an investigation to determine whether or not a crime has been committed
o   Probable cause is needed to believe that a crime was committed in order to bring forth charges
·         Formal Charge
o   Indictment (Grand Jury)
o   Information (Prosecutor)
o   Preliminary hearing (Judge)
§  Can use hearsay/illegally seized evidence
§  Rules of evidence only apply at trial
·         Arraignment
o   Defendant is brought before a judge and the charge against him is explained
o   Counsel is appointed
o   Bail is set
·         Pretrial motions
o   Motions to suppress
o   Motions in limine (motion to suppress hearsay/character evidence)
§  Hearing is away from the jury
·         Trial
o   Must always object in order to preserve issue for appeal
o   Verdict – guilt/acquittal needed to attach double jeopardy
o   Mistrial – double jeopardy does not attach
·         Appeal
o   No appeal allowed by State (double jeopardy)
o   Principle of non-retroactivity – when the Supreme Court issues cases regarding criminal procedure rules, those rules only apply prospectively and not retroactively
§  Can take advantage of cases if conviction is not final
o   Defendant’s conviction is considered final once appeals are exhausted
The Right to Counsel
Sixth Amendment
·          The 6th Amendment provides a criminal defendant the right to counsel
·         States must grant, at a minimum, the same protections that the Constitution does
o   Incorporation – protection applied to the states
o   Ex. Right to indictment by a GJ is only a federal right applied to federal cases (states don’t have to use it)
Providing the Attorney
·         Provided in an adversarial proceeding
·         Supreme Court has not held that every single criminal defendant has the right to a lawyer
·         Gideon: defendant has a constitutional right to counsel when he is indigent (defendant was charged with a felony)
o   Court left it up to the States to figure out how to determine when a defendant is indigent and how to provide the attorney
o   Indigent defendants do not have a right to the attorney of their choice
·         ABA Standard for Indigent Defendants:  “Counsel should be provided to persons who are financially unable to obtain adequate representation without substantial hardship.  Counsel should not be denied because of a person’s ability to pay part of representation, because friends or relatives have resources to obtain counsel, or because bond has been or can be posted”
·         Public Defender/Appointment System – consist of private attorneys and a contract system
·         An attorney can be provided at trial and on the defendant’s first appeal (applies to an indigent defendant)
·         Argersinger: defendant is entitled to an attorney if he is going to be imprisoned (defendant was charged with a misdemeanor)
o   Judge will know that if he doesn’t appoint counsel then he isn’t going to be able to give defendant jail time (not even 1 day)
o   Don’t look at the possibility of serving time, look at what actually happened
o   Ex. Can you allow proba

counsel includes having an attorney that can perform effectively
·         A claim of ineffective assistance of counsel can be raised:
o   Against trial attorney or appellate attorney
o   Against appointed or retained attorney
o   Can be raised in any kind of criminal case
·         When can a claim of ineffective assistance of counsel be raised?
o   Part 1:  Defendant is convicted at trial
o   Part 2:  Direct appeal – first court that hears the appeal
§  Defendant has the right to counsel at this appeal
§  Can raise issues only brought up in trial that is based solely on the record
o   Part 3:  Writ of habeas corpus – collateral proceeding where the claim of ineffective assistance of counsel can be raised
§  Defendant is able to offer new evidence relating to his attorney’s effectiveness
·         Defendant must show that counsel’s representation fell below an objective standard of reasonableness
·         Defendant must point to specific errors made
o   Court will not look at things such as attorney’s experience, how much he was paid, etc.
·         Strickland v. Washington
o   Deficient Performance
§  Attorney did not perform reasonably under the circumstances
§  Court will give deference to any strategic decisions that the attorney makes
§  Attorney must investigate!
·         This is usually where defendants will get into trouble when arguing deficient performance
·         Must have reason to believe that there could’ve been another defense and attorney failed to look into it