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

Criminal Procedure
Prof Williams Fall 2017
Criminal Process
Direct Appeal
Once this step is complete conviction is final
State Habeas (collateral attack);
Cannot raise new laws that would help under this (non-retroactivity doctrine) – these are used to remedy any constitutional violation.
State does not provide atty. for this stage
Federal habeas (collateral attack);
State does not provide atty. for this stage
Stages of criminal case
Police investigate when they believe crime has been committed – requires probable cause;
Prosecutor decides if charges will be brought;
Some states and federal? Requires grand jury indictment (which serves as a check on the prosecutor)
Defendant must be formally charged (arraigned) – judge informs D of rights – determines if indigent/needs lawyer.
Pre-trial motions
Motion to suppress – can exclude evidence obtained illegally etc. (jury is not present when these are decided)
Jury trial
In TX jury does the sentencing (unlike most states)
If D convicted can appeal, state does not have appeal option.
State is only required to provide lawyer to D for one appeal.
Non-Retroactivity Doctrine: When SCOTUS renders decisions – they typically do not apply retroactively, even if they would benefit defendants.
What D can benefit from a new decision? Those whose convictions are not yet final.
One amendment that does not apply to states: No requirement for grand jury
14th Amendment Due Process
A conviction that has been finalized (habeas exhausted) cannot be rescued by a new holding.
New case law does not act retroactively when no appeal available
New case law that is announced before appeal is exhausted may be used to Defendant’s advantage
The Right to Counsel
I. Generally
Rules of ethics require Defense counsel zealously represent his client
One charged with a felony has a fundamental right to counsel and is essential to a fair trial.  An indigent defendant has the right to counsel. 
No person may be imprisoned for any offense, whether classified as petty, misdemeanor, of felony, unless he was represented by counsel at trial.
Does not mean state provides counsel for j-walking offense.
Indigents do not have right to choose their counsel.
Even if there is potential for jail time, if jail time is not ordered and individual does not have counsel, rights have not been violated.
Prior conviction where person was not represented by counsel could be used to enhance a current conviction.
When does right to counsel attach?
“At a critical stage of the proceeding.”  AKA when there is an adversarial relationship.
Not at time of arrest – not at time of grand jury investigation.
Starts when Def. is indicted or at preliminary hearing
II. Waiver of the Right to Counsel
The accused must knowingly and intelligently waive right to counsel.
Knowingly: Must be mentally competent
Intelligently: Court explains drawbacks of not having counsel and D still wishes to waive counsel.
III. Ineffective Assistance of Counsel (IAC)
D can raise claim on appeal that atty. was ineffective.
Procedure for doing so:
If ineffective at trial or appeal, would not take issue on appeal b/c that is just review of evidence at trial court.  So, claim would be made at a state/federal habeas proceeding.
Cannot make IAC complain in a habeas proceeding b/c during these stages there is no right to counsel.
Prevail = new trial w/new atty.
Rule: 2 part test to show IAC – D must prove
1. Atty performance was deficient
Must show that counsel made errors so serious they were unreasonable under the circumstances.
2. The deficient performance prejudiced the defense.
Must show the errors were so serious to deprive D of a fair trial. Must show reasonable probability that outcome would have been different. 
Trial strategies are not subject to IAC.
Court will typically defer to atty in deciding defense strategy.  If strategy loses and D brings IAC claim, court will defer to atty.
Court will not defer to atty if atty does not sufficiently investigate the case.
Must show some effort to establish the strategy was an informed decision.
IAC Claim can be brought against hired AND appointed counsel
A reasonable strategic decision does not allow for IAC claim.
Client has final say in whether they will testify.
Counsel has a duty to investigate alternative circumstances before deciding a trial strategy.
When atty misinterprets the law = IAC
Pleading guilty could result in deportation. Atty has duty to inform them.
Atty has a duty to inform client of a plea offer.
Indigent D who is claiming mental defense has a constitutional right to have (funds for) a mental health expert provided for him.
Under certain circumstances, D will not have to show prejudice in IAC claim.
Very rare
Basically occurs when atty does practically nothing for client.
Prejudice is presumed
Strickland Test:
(1) deficient performance b/c atty has duty to inform client and
(2) defendant was prejudiced b/c got longer sentence when if he’d known may have turned out differently
Arrest, Search & Seizure
4th Amendment protects against unreasonable search and seizure.
Protects privacy rights.
Search Warrants – Must have probable cause
The Warrant Preference
SCOTUS has strong preference that warrants be used where a warrantless search would be otherwise constitutional.
The Warrant Requirement
Police must demonstrate to a magistrate that there is probable cause that the place to be searched contains evidence of a criminal offense.
Obtaining Warrants
Convince magistrate in an ex parte proceeding.
Only police present evidence
Magistrate must be neutral/detached
Magistrate can base decision on hearsay and/or “tips” of info.
Bring affidavit and any supporting docs detailing eviden

arts of the home that is not enclosed is not private from gov.
b. Conveyance to Third Parties and Knowing Exposure
Phone Number Surveillanceà
Don’t have expectation of privacy in phone #s because you are inputting info to the telephone company (or in general a third party) much like bank balances when giving info to bank teller.
Ground Tracking Surveillanceà
No expectation of privacy in public movements
No expectation of privacy in driving on public roads, therefore using tracker was not a search.
Aerial Surveillanceà
The fact that individual took measures to restrict some views of his activities preclude an officer’s observations from a public vantage point where he has a right to be and which renders activities visible.
Ex. Growing drugs in yard with tall fence. Drone flown over yard allowed.
Garbage Searches: There is no reasonable expectation of privacy with trash left on the curb. Trash = abandoned property.
Sui Generis Canine Sniffs
Sniff discloses only the presence of illegal items, not anything else, therefore bag is not actually searched b/c dog only alerts if drugs are present.
If stopped during traffic stop, dog can sniff car
Seeds of Doctrinal Change
Obtaining any information using sense-enhancing technology regarding the interior of the home that could not have otherwise been obtained w/o physical intrusion into a protected area constitutes a search; at least where the technology in question is not in general public use.
Where gov. uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion, is a search.
Placed GPS under car to track movements, after warrant had expired. Held to be a search b/c physical intrusion on private property. Though no expectation of privacy in movements, they intruded on his property to learn what he was doing.
Held: Surrounding home and curtilage of home is a search. I.e. dog can search a car but not a home. However a police officer is allowed to go to door and knock, as a regular citizen is permitted.
Rule for 4th Amendment Protected Interests: If information is available to the public, then gov. has same opportunity to gain that information. If public does not have access to intrude (open someone else’s purse during class ex.), then gov. also does not have access.