I. Introduction
a) Steps in the Legal Process
b) Diversity in Legal Regulation
c) Diversity in administration
d) Rectroactivity
e) Due Process, Individual Rights and the War on Terrorism
II. The Right to Counsel
a) The Right to Appointed Counsel and Related Problems
i) Appointed Counsel for Indigents
(1) Rules
(a) Federal criminal defendants who could not afford an attorney had a constitutional right to have criminal defense counsel appointed for them under the 6th amendment. Johnson v. Zerbst.
(b) The 6th amendment also applies to criminal defendants in state court criminal proceedings. Gideon v. Wainwright.
(c) Each and every jurisdiction defines what an “indigent” is either by statute or court rule.
(d) Indigent defendants do not have the right under the 6th amendment to actually choose the defense attorney who will be appointed to represent them.
(e) An indigent defendant cannot be imprisoned in jail or prison for any period of time – even a single day – unless he or she had been given the opportunity to have counsel appointed for his or her defense. Argersinger v. Hamlin.
(2) Overturned Rule
(a) The right to counsel is not fully applicable to the states b/c the 6th amendment’s guarantee of counsel is not completely incorporated by the 14th amendment, but the failure to appoint counsel is a violation of due process, if, under the circumstances of the case, it results in a conviction that is lacking fundamental fairness. Betts v. Brady.
(3) Policy Arguments
(a) The average defendant does not have the professional legal skills to protect himself when brought before a tribunal with power to have his life or liberty, wherein the prosecution is represented by experienced and learned counsel.
ii) Retained Counsel
(1) Rule
(a) A criminal defendant who possesses sufficient financial resources to retain his or her own private criminal defense counsel has the right to be represented at trial by any criminal defense attorney he or she chooses to employ. U.S. v. Gonzalez-Lopez.
b) Waiver of the Right to Counsel
i) Knowing and Intelligent Waivers
(1) Rule
(a) A criminal defendant may waive his or her 6th amendment right to counsel, provided that such waiver is made knowingly and intelligently.
(b) To be valid, such waiver must be made with:
(i) An apprehension of the nature of the charges;
(ii) The statutory offenses included within them;
(iii)The range of allowable punishments thereunder;
(iv)Possible defenses to the charges and circumstances in mitigation thereof; and
(v) All other facts essential to a broad understanding of the whole matter.
ii) Representing Oneself
(1) Right to Proceed Pro Se
(a) Rule
(i) A defendant in a federal criminal proceeding possess the right to proceed pro se as “the Constitution does not force a lawyer upon a defendant.
c) Ineffective Assistance of Counsel
i) Rule
(1) A criminal defendant’s 6th amendment right includes necessarily the right to the “effective” assistance of counsel. Powell v. Alabama.
ii) Extrinsic Ineffectiveness
(1) Def
(a) Whether some factor or factors extrinsic to counsel’s actual performance created a permissible inference of 6th Amendment ineffectiveness.
(2) Factors argued by D
(a) Counsel’s age;
(b) Counsel’s inexperience;
(c) Disability;
(d) Personal or emotional problems;
(e) Alcoholism or substance abuse problems;
(f) Problems with the law (e.g., counsel is under indictment);
(g) Lack of sufficient preparation time.
(3) Rule
(a) A defendant can “make out a claim of ineffective assistance only by pointing to specific errors made by trial counsel.” U.S. v. Cronic.
(b) If counsel entirely fails to subject the prosecution’s case to a meaningful adversarial testing, then there has been a denial of 6th amendment rights that makes the adversarial process itself presumptively unreliable. Davis v. Alaska.
iii) Actual Ineffectiveness
(1) Def
(a) Actual ineffectiveness claims alleging a deficiency in attorney performance.
(2) Test – Strickland v. Washington (adopted standards used by other federal courts)
(a) D must establish that:
(i) Counsel’s performance was deficient, AND;
1. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the 6th amendment.
2. An objective standard of reasonable competence in the totality of the circumstances.
(ii) The deficient performance prejudiced the defense.
1. This requires showing that counsel’s errors were so serious as to deprive the defendant a fair trial, a trial whose result is reliable.
2. Reasonable probability or likelihood that it mattered.
(3) The Performance Prong
(a) There is no one specific task that defense counsel must do or not do in order to be deemed effective.
(b) Judicial scrutiny of counsel’s performance must be highly differential. A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.
(c) When a convicted defendant complains of the ineffectiveness of counsel’s assistance, D must show that counsel’s representation fell below an objective standard of reasonableness.
(4) The Prejudice Prong
(a) Unreliability or unfairness does not result if the ineffectiveness of counsel does not deprive the defendant of any substantive or procedural right to which the law entities him. Lockhart v. Fretwell.
(b) Failing to object to a legal error that affected the calculation of a prison sentence, an error resulting in additional incarceration – however short – is clearly prejudicial to a defendant.
(c) D must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the results of the proceeding would have been different.
(d) SC has found no prejudice to exist for 6th amendment purposes where defense counsel threatened to w/draw if his client perjured himself at trial. Nix v. Whiteside.
(5) Purpose
(a) The purpose of the effective assistance guarantee of the 6th amendment is not to improve the quality of legal representation, although that is a goal of considerable importance to the legal system.
(b) The purpose is simply to ensure that criminal defendants receive a fair trial.
d) The Griffin-Douglas “Equality” Priniciple
i) Def
(1) There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.
ii) Rule
(1) Indigent defendants convicted at trial have a 14th amendment right to the assistance of counsel on a first appeal where the state has granted them the right to appeal (as opposed to those instances where entitlement to appeal is only discretionary). Douglas v. California.
(2) There is no constitutional right to appointed counsel for discretionary appellate proceedings. Ross v. Moffitt.
III. Arrest, Search and Seizure
a) The Exclusionary Rule
i) Def
(1) A judge-made doctrine that prohibits the introduction, at a criminal trial, of evidence obtained in violation of a defendant’s Fourth, Fifth, or Sixth Amendment rights.
ii) Rule
(1) In a prosecution in a state court for a state crime, the fourteenth amendment does not forbid the admission of evidence obtained by an unreasonable search and seizure. Wolf v. Colorado- OVERRULED.
(2) The fourth amendment is incorporated in the fou
he Fourth Amendment does not require the exclusion of evidence seized pursuant to a facially valid warrant where the police have acted in good faith. US v. Leon
(5) Garbage
(a) A defendant has no reasonable expectation of privacy in garbage that was placed in opaque trash bags, left on the curb and searched by the police who procured the bags from the garbage collector. California v. Greenwood.
(6) Curtilage vs Open Fields
(a) Factors – reasonableness inquiry – Oliver v. US.
(i) The proximity to the home;
(ii) Whether it is enclosed;
(iii)The nature of its uses; and
(iv)The steps taken to protect it from observation
(7) Effects
(a) One does not have a reasonable expectation of privacy in the smell of one’s luggage, one does have a reasonable expectation of privacy in luggage against physically invasive inspections. Bond v. US
(8) Canine
(a) As long as the police have lawfully stooped a car and do not extend the stop beyond the time necessary to issue a ticket and conduct ordinary inquiries incident to such a stop, a dog sniff of the car does not implicate the 4th amendment. Illinois v. Caballes.
(b) A canine sniff of the exterior of an automobile is not a “search” or “seizure” because this event does not require entry into the car and is not designed to disclose any information other than the presence or absence of narcotics. City of Indianapolis v. Edmond.
(c) Reasons Why
(i) The sniff is minimally intrusive b/c it does not involve the opening of luggage or the exposure of its contents.
(ii) The sniff “discloses only the presence of narotics,” and this limited disclosure provides protection for innocent citizens from general police “rummaging” in their possessions.”
iii) Reasonable Expectation of Privacy
(1) Standing
(a) Rule
(i) A person can complain about an evidentiary search or seizure only if it violates his own reasonable expectation of privacy. Rakas v. Illinois.
(ii) Whether a person has a legitimate expectation of privacy generally is based on the totality of the circumstances, considering factors such as ownership of the place searched and location of the item seized. Rawlings v. Kentucky.
(iii)When a police officer makes a traffic stop, he “seizes” a passenger as well as the driver “within the meaning of the fourth amendment” and thus a passenger, as well as the driver, may challenge the constitutionality of the stop. Brendlin v. California.
(iv)The 4th amendment protects people, not places. But the extent to which the 4th amendment protects people may depend upon where those people are. The capacity to claim the protection of the 4th amendment depends upon whether the person who claims the protection of the amendment has a legitimate expectation of privacy in the invaded place. Minnesota v. Carter.
1. An overnight guest in a home may claim the protection of the fourth amendment, but one who is merely present w/ the consent of the householder may not.
iv) Test – Katz
(1) That a person have exhibited an actual (subjective) expectation of privacy; and
That t
