Dervan
Criminal Procedure II
Spring 2011
Defense Counsel
Types of Charges
– When will the state pay/provide for defense counsel? Depends on:
o What type of charge has been levied in a particular case
o What point in the criminal proceedings the case is at
– 6th Amendment: “in all criminal prosecutions, the accused shall enjoy the right to have assistance of counsel for his defense”
o Can represent yourself
o At which point does the “criminal prosecution” begin?
§ Usually at arraignment
§ Procedure considered a “critical stage”
– Powell v. Alabama (1932): black man rapes white woman – illiterate, non-AL residents
o Even educated/intelligent laymen with perfect defenses lack skill/knowledge to adequately prepare for proceedings
§ Require guiding hand of an advocate at every step
§ Without it, though they aren’t guilty, face danger of conviction because they lack capacity to establish innocence
o Appeal: was due process (14th amendment) violated?
· Yes, specific characteristics based on these D’s – illiterate, young, public hostility, distant friends/family, capital case
· Not all deserve counsel; these did
– Betts v. Brady (MD – 1942): bank robbery – no appointed counsel except rape/murder (capital)
o Still no definitive line on which D can be appointed counsel
o “Special Circumstances” Test: not case where due process requires appointment
§ Consistent with Powell
– Gideon v. Wainwright (1963): false accusation of robbery – defended himself
o Increasing rights of D – Due Process Revolution
§ FRCP incorporated 14th Amendment into BOR
§ Exclusionary Rule: 4th Amendment Search and Seizure
§ Miranda
o Lawyers in criminal courts are necessities, not luxuries
§ Government hires DA’s, Defendants hire lawyers for $
o Overturns Betts – right to counsel is fundamental, essential for fair trial, procedural safeguard of due process
o 6th Amendment applies to the states
§ Give counsel to indigent D’s
· No definitive answer to when to give appointed lawyer
§ Opened floodgates for most indigents to get court appointed lawyer
– Argersinger v. Hamlin (1972)
o Gideon: get counsel if threatened with significant prison sentence
o This case ruled that it also applies to misdemeanors as well – even for small jail time
– Scott v. IL (1979): shoplifting with fine, no jail time
o Gideon doesn’t apply if only a fine, must be threatened with imprisonment
o Collateral Consequences: if too much speculation, doesn’t matter
§ Unable to pay, evicted from public housing, etc.
– AL v. LaReed Shelton (2002): imprisonment suspended – placed on probation
o Suspended sentence that may end up in actual deprivation of liberty may not be imposed unless D was afforded counsel
o Placing D on probation was illegitimate way around P to get D in jail without counsel
o Suspended sentence holds same weight as actual imprisonment
– Gagnon v. Scarpelli: counsel not invariably required in parole and probation revocation hearings – case-by-case system
– Nichols v. US: sentencing court may consider D’s previous uncounseled misdemeanor conviction to lengthen prison term imposed for subsequent offense
– Expert Testimony
o Ake v. OK (1985): government must provide indigents with access to psychiatrist if they make preliminary showing that sanity will be “significant issue” at trial
o Caldwell v. MS (1985): deny requests for criminal investigator, fingerprint expert, or ballistics exper
Point in Proceeding
– 6th Amendment: “criminal prosecution” – What is considered criminal prosecution?
o Usually arraignment
o Whatever procedure is considered a “critical stage”
– Right of Counsel Attaches
o Only after initiation of adversarial proceeding
o Even after initiation of adversarial proceeding
o At preliminary hearing or sentencing hearing
– No right to counsel
o Immediately after arrest
o During bail and pretrial detention determination at initial appearances
o During post-arrest probable cause hearing
o When giving handwriting sample
o Before submitting to order for blood drawing
o During probation revocation hearings
o During appeals/habeas appeals
– State (IL): additional rulings regarding no right to counsel
o During DUI exam if preceding formal charges
o During psychiatric exam
– Arrest -> Extradition -> Indictment -> Indictment Filed -> Psych Exam -> Trial -> Sentencing -> Appeal -> Habeas
– State v. Pierre: D makes statement to cops after arrest – claims 6th amendment right to counsel violated because he wasn’t offered lawyer at that point of proceeding
o No right to counsel until prosecution commences – government hadn’t signaled intention to move forward
o Kirby (IL): commences at or after initiation of adversarial criminal proceedings
§ “It is only then that government has committed itself to prosecute, and then that the adverse positions of government and D have solidified”
o Falcon (CN): extradition hearing doesn’t represent same commitment as arraignment
§ Extradition: whether it’s proper to return D to home state
o Vitale (CN): interrogation fol
pear
o Skewed Stats? Those excluded were in custody for serious offenses
– Westerman v. Cary: domestic violence offenders stay in custody and couldn’t make bail until 1st court appearance
o Who sets bail: administrative figure at jail determines based on schedule sheet (sometimes)
o Unconstitutional? (PD says it is)
§ WA Constitution right to bail – only banned by capital offenses
§ P: bail attaches directly after arrest
§ D: attaches after 1st judicial determination; PD: attaches within “reasonable time”
o Must look at context of provision – bail granted only by judges on case-by-case basis
§ Bail and Release are judicial functions – schedules left to counties/judges
§ Detention without bail pending speedy trial doesn’t violate state constitutions
· Determination must be made ASAP – before prelim hearing
o Initial Appearance: probable cause (within 48 hours), bail
§ Gerstein hearing: probable cause must be determined within 48 hours and must not be delayed unnecessarily
o Individual has important/fundamental liberty interest, however government has compelling interest to prevent crime and ensure those accused of sex crimes are available for trial
§ Determine probable cause promptly after arrest
Pretrial Detention
– Will D be a danger to community if he’s released?
o Bail Reform Act of 1984: authorizes pre-trial detention prior to trial of serious felonies found after adversarial hearing to pose danger to community and nothing can dispel danger
§ Judges Discretion
§ Purpose: prevention of future wrongdoing
– US v. Salerno: mafia (Genovese) charged with racketeering, extortion, gambling, etc.
o Arraignment: had indictment and preliminary hearing
§ No capital offenses
§ Case to detain: too many out on bail were committing crimes after release
· Murder conspiracy was severe enough to detain
o Factors in detaining
§ Nature/seriousness of charges
§ Substantiality of government’s evidence against arrestee
§ Arrestee’s background and characteristics
§ Nature/seriousness of danger posed by suspect’s release