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Criminal Procedure II
Southern Illinois University School of Law
Dervan, Lucian E.

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

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