CRIMINAL PROCEDURE OUTLINE – SUMMER 2012
6th Amendment: Right to Counsel
– 6th Amendment:
a. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor and to have the Assistance of Counsel for his defense.”
– Right to appointed counsel- talking about the right a person has when charged with a crime, if he cannot afford an atty, how far his rights go.
a. Powell
i. Background: The Scottsboro Boys- depression time, deep south, in 1931, in Atlanta crowded train black boys got into fight with white boys and beat white boys- sheriff arrested black boys, 2 girls found at R.R. tracks, prostitutes. Each girl claimed they had been raped by the black boys, great hostility, boys were sentenced to death. 9 boys charged with capital rape, all white jury, many people discovered this case and fought for these boys. AL justice was on trial. Sam Lebowitz got involved pro bono for the cause of the D's and worked its way up to the Sup. Ct. AL had statute which allowed appointment of counsel in capital case- no police reports/ no witness statements and given one day to prepare for trial. Sup Ct in Powell came to the conclusion ** since they were challenged to do something about state injustice- overturned conviction on basis that there was some connection b/w an accused ability to get a fair trial and to get an atty who is properly prepared- thus, they interfered in a state criminal case- was the Bill of Rts interfered with (question to be determined)? 6th Amendment accused has right to assistance of counsel for his defense. There was a connection here- D's were denied the right of counsel and if so, does it infringe the due process clause of the 5th Amendment? So impt should be made applicable to the states? YES.
b. Betts v. Brady – (10 Years after Powell)
i. Trial Ct- Betts is charged with robbery (felony), he is indigent/asks the ct to appt an atty for him. MD only permitted right to counsel in rape and murder charges, thus, denied. Represents himself, convicted. MD says Betts is NOT entitled to an atty. Ct has the opportunity to extend Powell to make it the law for all prosecution, but Ct does not do this. Rather, the Sup Ct turns the D down. They do not extend Powell. State by state issue, Ct is not going to interfere. Great majority of states believe appointment of counsel is not a fundamental right (although Powell said right to counsel was fundamental an inherent in the due process).
c. Gideon v. Wainwright- LANDMARK (REMEMBER)
i. Charged with felony, indigent and wanted FL to appt counsel for him. Judge denies his request and goes to trial, sentenced and went to jail.
ii. Wainwright is the warden/habeas corpus case/collateral attack Sup Ct has different justices now- Justice Black writes for the majority (dissented in Betts)- Ct is posed with the same exact issue as it was in Betts- Is appointment of counsel a fundamental right? Yes. Overturned Betts, and canvas of state courts- shift in the state courts- considerable portion do appoint counsel in every case.
iii. Gideon overturned Betts.
iv. ROL: ANY PERSON HALED INTO COURT, WHO IS TOO POOR TO HIRE A LAWYER, CANNOT BE ASSURED A FAIR TRIAL UNLESS COUNSEL IS PROVIDED FOR HIM (applies right to counsel to states for indigent accused where actual custody imposed.)
d. Argersinger v. Hamlin
i. If a person got a sentence of less than 6 months, counsel was not appointed (not felony case)- Sup Ct reaffirms that any offense where a person could be thrown in jail, has the right to appointment of counsel if he is indigent (where jail is an option counsel MUST be appt'd if he cannot afford.)
ii. ROL: Gideon also applies to misdemeanors.
e. Scott v. Illinois
i. D is denied the appointment of counsel, for which imprisonment is authorized, but he does not actually get jail time. Judge does not appt counsel/ get probation, no jail time.
ii. If D does not get jail time, then he DOES NOT have right to counsel from the beginning.
iii. ***ROL**** imprisonment cannot be imposed unless the accused is provided counsel
f. Nichols v. US
i. No custody, no right to counsel.
ii. Extended Scott by applying to probation as well.
g. Alabama v. Shelton
i. Ct gives D 30 days suspended sentence- no jail time- AL appoints him a lawyer b/c he violates his probation and triggers the 30 days. AL gives a distinction- custody was imposed on the first case and b/c it was eventually imposed, he WAS entitled to counsel retroactively.
ii. ***BLR*** IF A D, EITHER IN FED OR STATE CT, UNDER THE 6TH AMENDMENT, IS CHARGED WITH A MISDEMEANOR (Argersinger)OR FELONY (Betts), AND HE IS INDIGENT AND REQUESTS COUNSEL, THE CT IS OBLIGATED TO APPOINT COUNSEL FOR HIM, BUT HE MUST ULTIMATELY GET JAIL-TIME (custody) ON THAT CASE (Shelton).
iii. A suspended sentence, if its actually imposed, then he should have had counsel from the beginning
iv. Exam question- Make sure you know the D got actual custody.
v. Most of the judges approach this- if the D is charged with either a misdemeanor/felony, and he is indigent, then the ct will appoint counsel for him.
– Right to counsel of one’s choice
a. US v. Gonzalez-Lopez
i. ROL: A trial court's erroneous deprivation of a criminal defendant's choice of counsel entitles him to reversal of his conviction.
– When right to counsel first “attaches”
a. US v. Gouveia
i. Prison stabbing- inmate is suspected, put in isolation and interrogated. Privileges taken away- held in solitary for up to 9 mos. D requested counsel/ no right to counsel b/c they were not formally charged with anything yet. Again, only get atty when you have been formally charged.
ii. ***BLR*** RIGHT TO COUNSEL ATTACHES AT THE ARRAIGNMENT OR THE INDICTMENT (WHEN THE D HAS BEEN FORMALLY CHARGED); NOT BEFORE. (right under 6th Amend does not attach until the person has been formally charged. Get formally charged when indicted by grand jury (may not know you are charged) or brought into court for first ct appearance typically the arraignment hearing).
b. Rothgery
i. ROL: A criminal defendant's initial appearance before a judge marks the beginning of the proceedings against him and triggers the defendant's Sixth Amendment right to counsel whether or not a prosecutor is aware of or involved in that appearance.
ii. If a D has been indicted by a grand jury, that will trigger the right to counsel as would an arraignment.
– Right to self-representation
a. Faretta (1975)
i. Whether an appointed atty can be forced upon a D? What if a D wants to represent himself? No matter how foolish it is, a D has an absolute right to represent himself. D must know the consequences of his decision. What must a judge do to allow a D to represent himself? In order for a D to be allowed to represent himself the judge must determine that the decision must be made KNOWINGLY AND INTELLIGENTLY MADE. (in Pro Per) required to fill out a 2 page form advising D of the error of his ways. If you are Pro per, you cannot claim ineffective assistance of counsel.
ii. Faretta waiver- waiver to waive counsel- ct must conduct inquiry (see above).
iii. 6th Amendment: Rt to assistance of counsel, but also have rt to have atty appointed if you cannot afford one, has to be effective, but if you do not want an atty, you have to right to refuse an atty.
iv. ROL: AFFIRMS RIGHT TO SELF-REPRESENTATION PROVIDED WAIVER OF COUNSEL IS KNOWINGLY AND INTELLIGENTLY MADE.
b. Edwards
i. ROL: The Constitution does not forbid states from insisting upon representation for those
Court reasoned that if indigent defendants convicted on their pleas did not have counsel to guide them through Michigan's complex appellate process, their right to appeal would not be meaningful.
– Right to transcripts
a. Griffin (professor did not spend a lot of time on this subject)
i. Accused has a right to a transcript (even if for minor offenses) b/c can't appeal w/out transcript of what happened in lower ct's.
b. Mayer
i. Right to a transcript of the proceedings for free (for pro per)
– Right to assistance of expert witness
a. Ake v. OK
i. **ROL*** Indigent has the right to expert services to counteract the prosecutor's experts at the state's expense.
ii. Have a right to have experts appointed for the clients benefit- ie if the prosecution has a DNA expert that's going to take body fluids that were left at the crime scene and compare it to D's fluids; D has right to hire his own atty at the state's expense to look over the state prosecutor's findings.
iii. (Ct will appoint investigation too)- CA has a provision that you can get extraordinary fees in retained cases if your client is borderline indigent.
– Right to counsel in quasi-criminal proceedings (proceedings that are similar to criminal trial but aren't really criminal trials).
a. Right to counsel attaches in:
i. Sentencing proceedings
1. Mempa
a. Proceedings post-conviction- Mempa ct held that not only does a D have a right to atty at trial but also a rt to attorney at the sentencing.
i. Probation- under the jurisdiction of the judge
ii. Parole- under the jurisdiction of the parole board; cts have nothing to do with this anymore.
b. **no absolute right to counsel in every case in probation and parole hearings.
ii. Probation/parole hearings where D claims he did not commit the violation or there are substantial mitigating factors
1. Gagnon v. Scarpelli (1973)
a. Gagnon is the warden/Scarpelli is the D
b. Even though probation case, interpreted as applying toward parole cases.
c. Not require in every single case, that a person requires an atty in every probation or parole case- a persons probation or parole is usually violated by a new offense, thus, prima facie evidence will not need a new atty b/c have an atty for the new offense.
d. In CA- interpretation of the CA parole board has been, up until a year ago, you could never have an atty on a parole violation, the Sup Ct granted relief saying the parole board has not been following Gagnon.
e. Parole: Counsel should be provided when the parolee claims he did not commit the offense and when it's made timely.
iii. Juvenile delinquency hearings
1. In re: Gault
a. Juvenile case- ct made a true finding that a minor committed crime (delinquency)- child goes to juvenile hall.
b. Sup ct says juvenile ct proceeding is like a criminal proceeding (b/c minor can lose his freedom); thus, there is a right to counsel (Gideon applies to juvenile cases/ Delinquency= rt to counsel).
