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

Criminal Procedure

Spring 2011—Professor Kenneth Williams

Chapter 1 Introduction to the Criminal Justice Process

A. Key Actors:

a. Prosecution:

i. Decide whether to & what to charge, wide discretion

ii. Duty to see that justice is served (doesn’t necessarily mean getting a conviction)

1. Brady v. MD: Affirm. duty to disclose material exculpatory evidence

a. Lack of knowledge of evid ≠ defense to violation of this duty

b. Defense Attorney:

i. Only duty—zealously represent client

1. Unless discovery rules, no obligation to turn over exculpatory evid to state

2. You can’t present evid/arguments you know not to be true (client told you or you saw it)—you can defend someone & maintain they didn’t commit crime even if evid against them is overwhelming (video of them committing crime)

a. Don’t ask client if they committed crime b/c then defense knows

c. Trial Judge: (1) make sure proceeding is fair (umpire) (2) rule on admissibility of evid

d. Victims: Can file complaint w/ police but can’t make decision, only suggestions, as to charges

e. Police: Conduct investigation & turn over evid to prosecutor

B. Stages of Criminal Case:

a. Investigation (mainly conducted by police)

b. Arrest (requires PC to believe that D committed crime—low standard, some basis; if no PC, then all evid gathered after arrest thrown out)

c. Grand Jury (Fed const. only requires fed govt. to present case to grand jury, states aren’t required)

i. Serves as check on govt.—make sure that before too far in proceeding/D suffers, independent group of ppl look at case & determine whether there’s PC

ii. Ex parte proceeding—only govt. presents evid/argument; likely to get indictment

iii. Indictment: issued by grand jury—D is formally charged w/ crime

iv. Some states use preliminary hearings (case presented to judge) in lieu of grand jury

d. Arraignment (D informed of charges against him; if indigent, appointed attorney)

e. Pretrial Motions (motion to suppress, motion in limine, etc.)

f. Trial (most cases don’t proceed to trial, most are plea-bargained)

i. BOP: every element of crime beyond a reasonable doubt

ii. D has right to jury trial (voir dire—in fed cts., judge questions jurors to determine if bias)

1. Striking a juror for cause (must show that person has demonstratable bias against party to case)

2. Peremptory challenges (don’t have to justify; 2 limitations: can’t strike b/c of (1) race and (2) gender)

g. Verdict

i. Double Jeopardy (attaches when there has been a decision on the merits)

1. Does NOT attach to separate Js, only applies to same Js (fed acquits, state can try same case; crime covers different states, both states can try case)

ii. DJ Attaches:

1. Not guilty verdict (Const. prohibits prosecution from appealing)

2. Jury nullification: nothing prosecution can do about this; jury doesn’t have to justify decision

iii. DJ does NOT Attach:

1. Guilty verdict: D can appeal, prosecution cannot (D guilty of lesser crime)

2. Hung Jury—no decision on the merits

3. Grand Jury—no decision on the merits

h. Appeal

i. D has const. right to have at least 1 appeal

ii. Writ of habeas corpus to challenge conviction on const. grounds

i. Criminal v. Civil Cases:

i. BOP

ii. Criminal—punish wrongdoer; Civil—compensate victim

iii. Civil—plaintiff brings the case; Criminal—prosecution brings case

iv. Criminal Ds have much more protection under Fed Const. than Civil Ds

1. Right to counsel, right to confront witnesses

C. Doctrine of non-retroactivity:

a. S.Ct.’s criminal decisions do NOT apply retroactively, only prospectively

b. If D is awaiting trial or on appeal, he can take advantage of the decision; if D’s decision is final (in jail & exhausted all remedies), he can’t take advantage of new decision that would have benefitted him at trial or on appeal

c. If state/prosecutor follows the law as it then existed at the time of trial, they shouldn’t be penalized by change of law; also, it would deter S.Ct. from issuing decisions that change the law

D. Incorporation:

a. 1st 8 Am. to US Const. by their terms apply only to fed govt.; S.Ct. gradually incorporated many of these rights into procedural due process requiring binding on states by 14th Am.

i. 4th Am. prohibition against unreasonable searches & seizures and the exclusionary rule requiring that the result of a violation of this prohibition not be used as evidence against D

ii. 5th Am. privilege against compulsory self-incrimination

iii. 5th Am. prohibition against Double Jeopardy

iv. 6th Am. right to a speedy trial

v. 6th Am. right to a public trial

vi. 6th Am. right to trial by jury

vii. 6th Am. right to confront witnesses

viii. 6th Am. right to compulsory process for obtaining witnesses

ix. 6th Am. right to assistance of counsel in felony cases and in misdemeanor cases in which imprisonment is imposed

x. 8th Am. prohibition against cruel and unusual punishment

b. Not binding on states:

i. Right to indictment by grand jury for capital and infamous crimes

ii. Prohibition against excessive bail

c. US Const.=minimum protection (floor) for states; states can provide more, but not less, protection

Chapter 3 The Right to Counsel

A. Introduction:

a. Sixth Am.: in all criminal prosecutions (not just crim trials) the accused shall enjoy the right to have the assistance of counsel for his defense

i. Applies to all critical stages of prosecution after formal proceedings have begun, including trial

ii. Indigent Ds do not have a right to “choose” their counsel; but, if D has means to hire own attorney, state can’t stop you from having counsel of your choice

iii. Indigency not defined by S.Ct.—up to states

b. Betts v. Brady: 6th Am right to counsel not applicable to indigent D in state ct. by 14th Am. (overruled)

c. Gideon v. Wainwright: indigent D who is charged w/ a felony in state court is entitled to appointed counsel under 6th Am; right to counsel=fundamental right, applies to states by 14th Am.

i. Fundamental & essential to fair trial; applicable to state cts. by 14th Am.

d. Argersinger v. Hamlin: (Day in Jail Rule) right to counsel does not extend to misdemeanors or petty offenses; however, absent a knowing & intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial

i. D charged w/ misdemeanor which carries optional jail sentence or fine not guaranteed assistance of counsel at state expense; but, if counsel not provided, judge precluded from sentencing any term of imprisonment upon finding of guilt

outcome of trial would have been different (no convicted or lesser sentence)

2. Reasonable probability = probability sufficient to undermine confidence in the outcome (less than preponderance of the evidence)

3. An error, even if professionally unreasonable, doesn’t warrant setting aside judgment if it had no effect on the judgment

4. Strong presumption that judge or jury acted according to law

e. US v. Cronic: The complete denial of counsel during a critical stage of a judicial proceeding, mandates a presumption of prejudice because “the adversary process itself” has been rendered “presumptively unreliable (if Cronic applies, prejudice is presumed)

i. Attorney was not functioning as an attorney should function, break down in the adversarial process

ii. Applies to sleeping lawyer but NOT drunk lawyer (Strickland applies to drunk lawyer)

iii. If defense counsel entirely fails to subject prosecution’s case to meaningful adversarial testing, then adversary process itself presumptively unreliable

iv. No Cronic violations where attorney has participated but simply made bad decisions

f. Nix v. Whiteside: D insists on testifying falsely and defense counsel tells D that if he testifies, he has duty to tell court of what D was doing and that he felt D was committing perjury, and also that he would attempt to withdraw from representation if D insisted on committing perjury; defense counsel’s conduct was reasonable under Strickland even if perceived as a threat to withdraw & disclose the illegal scheme

g. Florida v. Nixon: No IAC in a capital murder trial to fail to obtain a client’s affirmative consent to strategy of going to trial and conceding guilty in hopes of having more credibility at sentencing; in ordinary trial, might be closer call but considering gravity of potential sentence & proceedings 2 phase structure, counsel’s strategic decision was reasonable in this case

i. In capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed; when counsel informs D of the strategy counsel believes to be in D’s best interest and D is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding D’s explicit consent; instead, if counsel’s strategy, given the evidence bearing on D’s guilt, satisfies the Strickland standard, that is the end of the matter, no tenable claim of IAC would remain

h. Knowles v. Mirzayance: No IAC under Strickland when attorney recommended w/drawing insanity defense & on advice of counsel, D w/drew defense, resulting in D’s conviction

i. No prevailing professional norms prevent counsel from recommending that a plea be withdrawn when it is almost certain to lose; Law does not require counsel to raise every available non-frivolous defense