Criminal Procedure II Outline

Criminal Procedure Outline
Cohn Spring 2013
Tuesday May 7th – practice exam deadline (5:00P.M.)
 
Introduction to CRJ System: Due Process
A. Introduction to Procedure/Process
1)       Report the crime
2)       Pre-arrest investigation
3)       Arrest
4)       Booking
5)       Post-Arrest investigation
6)       Charging decision
B. Due Process
·         Development of the Court:
o    Warren Court (Liberal- Earl Warren)
§  Three elements of the court:
·         1) Equality
·         2) Lopsided System (executive power that was unchecked, movement to bring state court inline with the Bill of Rights
·         3) Implementation of New Rights: Bright line Rules to stop evasion & Miranda warning created
o    Burger Court (Warren Burger)
§  First Tier: Assigned hierarchy of the Bill of Rights: Right to counsel, right to jury trial, right to public trial (most important here)
§  Second Tier: 5th amendment (self-incrimination, coerced confessions)
§  Third Tier: 4th amendment (illegally obtained evidence excluded)
o    Rehnquist Court
§  Wanted a speedy and efficient trial
§  Pre-text stops are legal
§  Upheld Miranda laws
o    Roberts Court (2005-Present)
§  Suppression of Evidence unlawfully obtained
·         Terrorism Cases w/ Due Process
o    Hamdi
§  Issue: What process is due a US citizen who disputes “enemy combat” status?
§  Rule: President has authority to detain citizens as enemy combatants only if picked up on battlefield in Afghanistan; Due process demands a US citizen held in the US as an enemy combatant is entitled to meaningful opportunity to contest factual basis for his detention before neutral decision maker + right to counsel
§  Rationale: Not allowed to infringe on the right of the nation’s citizens because the country is in a state of war; constitutional limitations continue to safeguard essential liberties of people against war power of the president
§  President cannot hold someone indefinitely
§  Established Balancing Test:
·         Reviewing court will weigh private interest of detained citizen vs. government interest = determine whether the sustain enemy combatant designation
o    Hamdan
§  Violation of Uniform Code of Military Justice (UCMJ) & Geneva conventions
§  1) UCMJ
·         D can be tried in proceedings where he and counsel can’t be present, w/ evidence he can’t know about, w/evidence that isn’t admissible in federal court (including hearsay & evidence obtained by coercion)
§  2) Geneva Conventions
·         Requires regularly constituted court affording all judicial guarantees recognized as indispensible by civilized peoples (concerns: concentration of function in single executive official, less standards for tribunals, removal of review safeguards)
·         Requires: prisoners be treated humanely, forbids outrages on personal dignity (not humiliating & degrading treatment) ALL PRISONERS
·         Can’t sentence and execute unless judgment pronounced regularly constituted court will all judicial guarantees recognized as indispensible
o    Boumediene
§  Issue: Can congress suspend the constitutional right to habeas corpus by amending federal habeas corpus statute
·         Rule: Only if there is an adequate substitute for habeas corpus; Detainees at Guantanamo entitled to habeas corpus otherwise
§  Issue: Are Bush Combatant Statute Review Tribunals an adequate substitute for habeas corpus
·         Rule: Not adequate substitute and review of decisions limited to whether CSRT complied with own procedures—But there is no right to counsel, can’t see all evidence against him, limited in evidence presented
o    Osborne
§  Issue: Does D have a substantive Due Process right to test DNA samples after conviction
·         Rule: No substantive due process right to DNA testing & state legislatures are free to provide D right to DNA testing but not required
 
Right to Counsel
A. Introduction
·         Right to counsel under the 6th amendment attaches when formal criminal charges are filed
·         Right applies to ALL critical stages of the proceedings, initiation of judicial proceedings, commencing with the arraignment if defendant is required to enter a plea or not guilty or guilty, pretrial/post trial indictment lineups, and at other proceedings including but not limited to trial and sentencing—Also applies at Appeal
B. Right to Appointed Counsel
·         State MUST appoint counsel to accused no matter the crime for indigent persons (Gideon) [previously state would only supply for rape or murder] ·         For All crimes, D is entitled to counsel at critical stages:
o    When judicial proceedings initiated against D
o    Appointment of counsel required for felony trials
o    Misdemeanors when imprisoned
o    Appeals as a matter of right (only the 1st appeal)
o    If a defendant is not represented by counsel then he/she may not be imprisoned
§  Examples
·         1) Initiation of Judicial Process
·         2) Sentencing
·         3) Appeal (where matter of right)
·         4) Pretrial post-indictment lineups
·         5) Arraignment if must plead
·         Rules for Right to counsel:
o    Federal:
§  6th amendment requires appointment of counsel in all federal felony trials
§  For misdemeanors when prison time is imposed not just possible
o    State:
§  6th does not require appointment of counsel in all state trials (case by case determination)
§  Defendants in state felony trials have right to counsel (according to 6th & 14th)
§  For misdemeanors when prison time is imposed not just possible
o    Incarceration and Trial:
§  D cannot be imprisoned for any offense unless he was represented by counsel
§  Argersinger case is not extended to cases where imprisonment is possible but actual jail time is not imposed. Must be actual incarceration
§  Where sentence is imposed by execution of sentence suspended- D was sentenced at trial
§  Where imposition of sentence is suspended and sentence occurs after probation violation – D was not sentenced at trial
o    Transcripts:
§  State must furnish free transcripts of trial to indigent D where transcript necessary for review but not for collateral review unless transcript necessary to raise legal issue
·         Applies: filling fees, transcript of state habeas corpus proceeding if needed to file habeas corpus in higher court, transcript of preliminary hearing, transcript of mistrial after hung jury
o    Appeals:
§  If indigent is appealing on a matter of discretionary review there is no right to counsel
§  If an indigent is appealing as a matter of right he/she is entitled to representation by counsel on appeal – only one 1st appeal
§  There is no right to counsel for habeas corpus
o    Medical/Psychiatrics
§  Right to free psychiatrist where D shows:
·         1) Sanity at time of offense likely to be significant at trial OR
·         2) At capital sentencing hearing, prosecution presents evidence of future dangerousness
§  If a defendant demonstrates that his sanity at the time of offense is to be a significant factor at trial or a capital sentencing where prosecution presents evidence of future dangerousness then the state must, at least, assure the defendant the access to a competent psychiatrist who will conduct an appropriate examination and assist in evaluation, preparation, and presentation of the defense
 
·         Overview: Under due process government must treat d fairly. Government cannot treat similarly situated groups differently. At trial D presumed innocent and on appeal D presumed guilty
C. Sentencing
o    General:
§  If a defendant has already been sentenced and is at a probation revocation proceeding then he/she is not entitled to counsel but may be appointed counsel on a case by case basis if:
·         Timely and colorable claim that:
o    Did not commit violation or
o    Substantial justification that makes revocation appropriate and it’s complex case
o    Prisoners:
§  State cannot forbid jailhouse lawyers
§  Right of access requires prison furnish law libraries or adequate trained legal assistants because there is a right to access the criminal justice system
§  Prisoners can’t recover for denial of access to the