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Criminal Procedure: Post Investigation
Southern Illinois University School of Law
Schroeder, WIlliam A.






1. Constitutional Basis: 6th Amendment provides that “in all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.”

a. Incorporation (Gideon): 6th Amendment is incorporated by way of the DPC of the 14th Amendment to apply in state cases.

2. Rights of Indigents to Appointment of Counsel: D’s in many criminal trials are entitled to the appointment of a lawyer at trial regardless of any ability to pay.

a. Determining indigency: few courts set out specific standards with respect to indigency.

1) Note-total destitution not required: in most cases it isn’t necessary to establish total destitution.

2) Factors: in determining indigency, most courts will consider factors such as:

a) D’s income while in custody.

b) D’s previous indebtedness.

c) D’s assets.

d) D’s dependents.

e) Nature of the charge against D.

f) D’s bond expenses.

b. Recoupment of expenses (Fuller v. Oregon): statutes requiring, as a condition of probation, that the convicted D pay back the state the fees of the appointed attorney are constitutional as long as they provide exemptions for D’s who can’t afford repayment.

1) Note-conditioned on imprisonment unconstitutional (Rinaldi v. Yeager): recoupment program requiring reimbursement only from D actually sentenced to prison violates equal protection.

3. Cases in Which Right to Counsel Exists:

a. Right to counsel at trial (Argersinger v. Hamlin): the right to counsel exists in criminal prosecutions if actual imprisonment, however short, is ultimately imposed.

1) Actual imprisonment (Scott v. IL): the right to counsel exists when imprisonment is actually imposed rather than being a mere possibility (i.e., like where D may be charged with either imprisonment or a fine).

a) Limitation-felony (Gideon): there is an absolute right to counsel for felony convictions whether or not it actually ends in imprisonment.

b) Note-suspended sentence (Alabama v. Shelton): the 6th Amendment right to counsel is violated when an uncounseled D receives probation and a suspended prison sentence that can be imposed if probation is revoked.

b. Right to counsel at nontrial proceedings (Gouveia): prisoners under investigation for a crime committed in prison have no right to counsel until adversary judicial proceedings have initiated.


1. General Rule-Indigents Right to Appeal (Griffin v. Illinois): when a state grants the right to appeal, it cannot do so in a way that discriminates against convicted individuals because of their poverty.

a. Application of Griffin:

1) Filing fees (Burns v. Ohio): state can’t require indigent D to pay filing fees before permitting him to appeal.

a) Note-post-conviction proceedings (Smith v. Bennett): ban on filing fees is extended to post-conviction proceedings.

2) Habeas Transcripts (Long v. District Court of Iowa): indigent must be furnished a free transcript of a state habeas corpus hearing for use on appeal.

3) Preliminary Hearing Transcripts (Roberts v. LaVallee): indigent D is entitled to free transcript of preliminary hearing for use at trial.

4) Incarceration beyond term (Williams v. Illinois): D unable to pay a fine couldn’t be incarcerated beyond maximum term fixed by statute.

5) Incarceration to satisfy fines (Tate v. Short): indigent convicted of offenses punishable by fine only cannot be incarcerated a sufficient time to satisfy fines.

6) Transcripts from hung jury (Britt v. North Carolina): indigent is entitled to free transcript of previous trial ending with a hung jury.

b. Procedural Requirements-Transcripts (Mayer v. City of Chicago): if appellate review requires a transcript of the trial proceedings, such a transcript must be made available to a convicted indigent free of charge (e.g., IL rule that provided transcripts for indigents only in felony cases violates equal protection).

1) Application-misdemeanor cases: even in misdemeanor cases, an indigent D should be afforded as effective an appeal as a D who can pay.

2) States burden: where a complete transcript is needed, the state bears the burden of showing that something less will suffice.

2. Right to counsel on Appeal:

a. Right to counsel-automatic appeals (Douglas v. California): when a state provides an appeal granted to all as a matter of right, counsel must be appointed for indigents.

b. Right to counsel-discretionary appeals (Ross v. Moffit): Constitution doesn’t require the state to provide counsel for an indigent for a discretionary appeal (courts discretion).

c. Petition for certiorari: state doesn’t have to provide counsel for an indigent on a petition for cert to the U.S. S.C.

1) Transcripts (U.S. v. MacMollom): is constitutional of 28 USC §753, which provides for a free transcript for indigent prisoners seeking federal habeas relief if the trial judge certifies that:

a) The claim isn’t frivolous and

b) The transcript is needed to decide the issue presented.

d. Assistance other than counsel (Ake v. Oklahoma): due process may require that D be entitled to obtain investigative, expert, or other services necessary for an adequate defense.

1) Court appointed psychiatric exam indigent criminal D is constitutionally entitled to a court appointed psychiatric evaluation at state expense whenever (either):

a) Benefit to D: D can make a colorable showing that he might benefit from the insanity defense, or.

b) Government psychiatric evidence: the government is going to produce psychiatric evidence at sentencing to prove potential future dangerousness.

2) Note-federal court (18 U.S.C. §3006A(e)): D is entitled to such services.


1. Postconviction proceedings (Mempha v. Rhay): D is constitutionally entitled to a lawyer at all sentencing hearings.

a. Distinguish-probation or parole revocation (Gagnon v. Scarpelli): D is not entitled to counsel at probation or parole revocation proceedings where the trial has already been completed and sentence determined.

2. Juvenile court proceedings (In re Gault): in juvenile proceedings that may result in loss of the juvenile’s freedom, DPC requires that:

a. Notification: child and his parent be notified of the child’s right to be represented by counsel.

b. Indigency: if they are unable to afford counsel, that counsel will be appointed to represent the child.

3. Summary courts-martial (Middendorf v. Henry): there is no right to appointed counsel at summary courts-martial.

4. Parental status termination proceedings (Lassiter v. Department of Social Services): due process doesn’t require the appointment of counsel in parental status termination proceeding involving indigent parents.



1. 2 Tests for Entrapment:

a. Subjective test (Majority View) (U.S. v. Russell): entrapment defense applies only if the accused has no predisposition to commit the crime but did so due to inducement of government agencies.

1) Timing (Jacobson v. U.S.): predisposition of D must exist prior to the government’s initial contact with D.

a) Note-mere inclination insufficient: a mere inclination to engage in the illegal activity

ed only on the offense committed.

4. Presumption-release on own recognizance (Pugh v. Rainwater): general presumption in favor of release on own recognizance and not requiring bail.

5. Types of Bail: predominant system of pretrial release is the money bail system.

a. Procedure: an accused can either post the security herself or she can obtain a bond from a bail bondsperson by paying a fee (usually 10% of the face value of the bond).

1) State retaining a portion of the bail (Schilb v. Keubel): it isn’t unconstitutional for a state to keep a percentage of the amount posted in lieu of D not posting the full bail amount (e.g., like in IL where you only have to post 10% and state can keep 10% of that (1%)).

b. Reform movement: in many jurisdictions dissatisfaction (hurts the poor) with the money bail system has led to change in bail procedures.

1) These changes include releasing D on:

a) Their own recognizance.

b) Unsecured appearance bonds.

c) Surety bonds.

d) Property bonds.

2) Conditional release: some jurisdictions have adopted programs placing various conditions on the released D to assure her presence at trial. These conditions might include:

a) An agreement not to commit any crimes while on release.

b) To remain in the custody of a designated person.

c) To maintain employment.

d) To maintain a curfew.

e) Avoid contact with certain persons.

3) Alternative methods: other jurisdictions offer alternative methods of pretrial detention, such as house arrest.


1. General: many states (and Congress) have adopted preventative detention provisions that permit courts to deny bail to D’s who are alleged to be dangerous to society.

2. State provisions: opponents argue that a system of preventative detention denies an accused the right to bail and requires courts to make often inaccurate predictions of future dangerousness.

a. Constitutionality: usually upheld by courts as long as they are tied to expedited docket positions for detained D’s.

3. Federal Bail Reform Act: gives federal courts the authority to detain an arrestee when a judge determines, after a hearing, that no condition of release would “reasonably” assure the appearance of the person and “the safety of the community.”

a. D’s due process rights: at the bail hearing, D has the right to testify, the right to present other evidence, the right to counsel, and the right to cross-examine witnesses.

b. Standard-clear and convincing: the court’s decision to detain an arrestee must be based on clear and convincing evidence.

1) Note-review: if detention is ordered, D is entitled to an expedited review of the decision.

c. Constitutionality (U.S. v. Salerno): S.C. has upheld the preventative detention provisions of the Act, concluding that pretrial detention is “regulatory, not penal,” and that liberty interests implicated are outweighed by the government’s “overwhelming” interest in community safety.