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Criminal Procedure
Temple University School of Law
Sonenshein, David A.

Criminal Procedure


The Right to be Appointed Counsel
Powell v. Alabama
Betts v. Brady
Gideon v. Wainwright
– The 6th Amendment to the United States Constitution states:
a. In all criminal prosecutions, the accused shall enjoy the right…to have assistance of counsel for his defense
– There has never been limit on the right to retain counsel
– For those who could afford it, criminal defendants have historically been allowed to have counsel present at every criminal proceeding, at every stage in the criminal process
– Thus, right to counsel issues have typically arisen when indigent defendants are denied the right to have an attorney appointed
– Prior to Gideon, the need for counsel was determined on a case-by-case basis
– In Powell, three African American juveniles charged with a capital offense were “hurried to trial” without the appointment of counsel
– The Court held the youths were denied due process given the rushed nature of the proceedings, the age of the defendants, and the racial overtones surrounding the case
– In Betts, however, the Court held that a criminal defendant charged with robbery was not entitled to counsel
– This is because the defendant was 43 years old, and “of ordinary intelligence and ability to take care of his own interests at trial on a narrow issue” (Betts)
– Gideon v. Wainwright overturned Betts and established that the Sixth Amendment is applicable to the states and requires appointed counsel for indigent defendants
– In Gideon, the Court stated that a provision of the Bill of Rights that is “fundamental and essential to a fair trial” is made obligatory upon the states via the Fourteenth Amendment
– In an adversary system of criminal justice, any person who is haled into court who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him (Gideon)
– The right of one charged with a crime to counsel is fundamental and essential under the 6th Amendment to the Constitution (Gideon)
– Thus, appointed counsel is essential to a fair trial and its guarantee is binding upon the states via the 14th Amendment (Gideon)
– The right to counsel is essential in both capital and noncapital cases
– Justice Clark, in concurrence, stated:
a. The Fourteenth Amendment requires due process of law for the deprival of “liberty” just as for deprival of “life,” and there cannot constitutionally be a difference in the quality of process merely upon a supposed difference in the sanction involved (Gideon)
– Although the 14th Amendment does not create a hierarchy between life, liberty and property, the Court has limited the right to appointed counsel in some criminal cases
– In Argersinger, the Court held that:
a. absent a showing of intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor or felony, unless he was represented by counsel
– Thus, counsel need only be appointed if a criminal defendant faces imprisonment (Argersinger)

The “Equality” Principle
Griffin v. Illinois
Douglas v. California
Ross v. Moffitt
– While Gideon was based on the 6th Amendment and 14th Amendment Due Process, appointment of counsel has also been compelled in certain situations by the Equal Protection Clause of the 14th Amendment
– The Equal Protection rational was established in Griffin v. Illinois, where the Court held, per a plurality opinion, that a state must provide a free trial transcript when such a submission is a prerequisite to an appeal
– Justice Black wrote a concurring opinion, and stated:
a. It is true that a state is not required by the federal constitution to provide appellate courts or a right to appellate review at all…but that is not to say that a state that does grant review can do so in a way that discriminates against some convicted defendants on account of their poverty…there can be no equal justice where the kind of trial a man gets depends on the amount of money he has.
– The Griffin equal protection principle was extended in Douglas v. California, which held that counsel be appointed to indigent defendants in preparing their first appeal from a conviction, at least where the first appeal is available as a matter of right
– Justice Douglas stated:
a. where the merits of the one and only appeal an indigent defendant has as of right are decided without the benefit of counsel, we think an unconstitutional line has been drawn between rich and poor
– In Ross, v. Moffit, the Court narrowed Griffin, and stated that a defendant need not be appointed counsel for discretionary review by higher appellate courts
– In Ross, Justice Rehnquist stated that “the fact that a particular service may be of benefit to an indigent defendant does not mean that the service is constitutionally required”
– Thus, the question of whether the lack of appointed counsel denies equal protection is not one of absolutes, but one of degrees
– The Court distinguished Douglas by stating that the handicap that lack of counsel creates for discretionary higher appeals is “far less than the handicap borne by the indigent defendant denied counsel on his initial appeal”

“Effective” Assistance of Counsel
Strickland v. Washington
Nix v. Whiteside
– In criminal cases, a convicted client may appeal his conviction on the grounds of defective assistance of counsel
– In showing that counsel was defective, a defendant must show that:
a. Counsel made errors so serious that counsel was not functioning as “counsel” guaranteed to the defendant by the Sixth Amendment, and
b. The defendant must show the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable (Strickland)
– Thus, the Strickland test requires both deficiency and prejudice
– The inquiry is thus:
a. Was the counsel’s representation deficient compared to the professional standard? i.e., was it reasonable?
b. Was there a reasonable likelihood that the outcome would have been different but for the deficient representation?
– As to the first prong, representation of a criminal defendant entails certain basic duties
– Counsel’s function is to assist the defendant, and hence counsel owes the client a duty of loyalty, a duty to avoid conflicts of interest (Strickland)
– Counsel has the overarching duty to advocate the defendant’s cause and to consult with defendant on important decisions and to keep defendant informed of important developments
– Counsel also has a duty to bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process (Strickland)
– Nevertheless, scrutiny of counsel’s performance must be highly deferential to the lawyer in question (Strickland)
– This is because the availability of intrusive post-trial inquiry into attorney performance would encourage the proliferation of ineffectiveness challenges
– When the court is the source of the ineffective assistance of counsel, then the Strickland test is not applied


The Exclusionary Rule
Mapp v. Ohio
– The exclusionary rule requires suppression of evidence obtained in violation of the defendant’s constitutional rights
– The exclusionary rule is binding against the states via the Due Process Clause of the 14th Amendment per Mapp v. Ohio
– The purpose of the exclusionary rule is to deter (Mapp)
– This is done by compelling respect for constitutional guaranties in the only effectively available way – by removing the incentive to disregard them (Mapp)
– The government, by admitting evidence unlawfully seized, serves to encourage disobedience to the federal constitution which it is bound to uphold
– In determining whether the exclusionary rule should apply in a particular circumstance, one should determine whether the goal of deterrence of government misconduct would be furthered
– United States v. Calandra held that a grand jury witness many not refuse to answer questions on the ground that they are based on evidence obtained from him in an earlier unlawful se

es that the Fourth Amendment intended to protect from government interference (Oliver)
– This is because there is no societal interest in protecting the privacy of activities, such as the cultivation of crops, the occur in open fields (Oliver)
– Open fields are accessible to the public in ways that a home, an office or commercial structures are (Oliver)
– Open fields are distinguished from curtilage, the land immediately surrounding and associated with the home. (Oliver)
– This distinction implies that only the curtilage, not the neighboring open fields, warrants the Fourth Amendment protections that attach to the home.
– Curtilage is defined by reference to the factors that determine whether an individual reasonably may expect that an area immediately adjacent to the home will remain private (Oliver)
– These factors include:
a. The proximity of the area claimed to be the cartilage of the home
b. The nature of the uses to which the area is put, and
c. The steps taken by the resident to protect the area from observation by people passing by (Oliver)
– But even cartilages may be surveilled if a person cannot reasonably that such an area would not be subject to observation from a particular location, under particular circumstances (Riley)
– Generally speaking, it is not a search for an officer, lawfully present at a certain place, to detect something by one of his natural senses
– When common means of enhancing the senses, such as a flashlight or binoculars, are used, the result ordinarily is the same
– But in Kyllo, the Court held that
a. where obtaining by sense enhancing technology any information regarding the interior of a home that could not otherwise have been obtained without physical intrusion constitutes a search, at least where the technology in question is not in the general public use
– The principle seems to be that where sensory enhancements are used essentially to gain access to a protected area, then it is a search under the Fourth Amendment
– In Knotts, the police placed a beeper inside a container purchased by the criminal defendant and tracked its location at all times
– The Knotts Court held that the beeper did not constitute a search because visual surveillance could also have revealed the defendant’s location to the police
– But in Karo, police placed a beeper inside a container purchased by the defendant and tracked its location inside the defendant’s house
– The Court ruled that there was a search because tracking the container inside a home could not have been done through visual surveillance

Probable Cause
Aguilar v. Texas
Spinelli v. United States
Draper v. United States
Illinois v. Gates
– The Fourth Amendment provides:
a. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
– Probable cause is defined as that quantity of facts and circumstances within the police officer’s knowledge that would warrant a reasonable belief that the individual in question has committed a crime