Right to Counsel 14th amendment (Powel v. Alabama Page 14)
Powell – negroes down south not afforded the right to counsel the whole bar was appointed to defend them against allegations of rape by two white woman
(1) Dissent opinion – if correct, the ruling that the failure of the trial court to give petitioners time and opportunity to secure counsel was denied of due process is enough, and with this the opinion should end. But the Court goes onto declare that the failure of the trial court to make an effective appointment of counsel was likewise denial of due process within the meaning of the 14 amendment
(2) Two parts to the right to counsel:
a. Right to employ counsel of your choice if you can afford it
b. Right to have one appointed for you if you are unable to afford one
i. If the defendant fails to appoint counsel the court has a duty to appoint counsel for them
1. must be a specific appointment
2. appointment of counsel must come at a reasonable time
a. so the lawyer has time to investigate and prepare
ii. right to appoint counsel is procedural
1. doesn’t depend on the weight /strength of the case
2. Unless we defend this right to counsel we do not have adequate assurances that only the guilty would be convicted
(3) Without the right to appoint counsel there is too much of a risk that innocent people will be convicted
a. Majority gets no comfort in the trial judge appointing thee whole members of the bar
i. Relatively meaningless to the majority the appointment of the entire local bar
(4) DISSENT: majorities ruling is an unjustified extension of federal rights against the states. This is a federal case, you have no right to force the state to follow the constitution.
a. How do you force Alabama to follow and adhere to federal proscriptions (14th amendment)
b. If you are willing to say that the right to appoint counsel applies like the majority applies what other rights apply to the states
4th amendment
4th amendment cases are very difficult
(1) scope -what is the scope of the protection?
(2) Theory will derive what the scope of the protection is
(3) There can be a tension between the different black letter law that exists
(4) Want to pay attention to what motivates particular justices or decision
Incorporation Doctrine –
(1) Where does the Bill of Rights become incorporated against the states?
a. Justice Black argued for total incorporation
i. whatever the bill of rights protected those protections also protected the states
ii. the only thing the 14th amendment accomplished was what was implicitly stated in the bill of rights
iii. has never been agreed upont/incorporated by the Court
(2) The Court has never incorporated/ a total incorporation of the bill of rights and the 14th amendment – its essentially a flexible due process
(3) Privileges and immunities approach:
a. Courts has rejected the view that the privileges and immunities clause is a broad clause for incorporation
b. Only extends to narrow protections against state governments
(4) Due Process Approach –
a. Protection are much more flexible there is a flexible approach to due process
i. Justice black – doesn’t give enough scope – too much leeway, needs to be amore strict and narrower protections but one that is much less likely to change
(5) Federalism – the proper role of federalism
a. Extent of state power vs. federal power
i. Should the state be forced to follow federal proscriptions or should they be allowed to make up their own laws?
ii. Uniformity would favor more control by the federal government
b. Is at the core of the incorporation doctrine – would we force the states to do something they themselves would not otherwise do?
(6) The right to a grand jury indictment was not incorporated against the state (Hurtado page 29)
a. Even though you have the right in the federal system you do not have such federal rights in the states, because it does not extend to the states –
i. Example where Supreme Court has rejected incorporation
(7) There is no incorporation of the size of the jury – Maxwell
(8) Rejected incorporation with regards to self incrimination – Twining
a. state wanted to use the same rule in criminal cases as in civil cases, the other side is allowed to comment in civil cases upon whether you can draw inferences based on your decision and not incriminate
(9) Incorporation forces us to consider if something is fundamental to our due process
a. Fundamental forces us to confront if we can have confidence in the conviction
(10) Justification:
a. Very important to the Court that there is a right to counsel and you are confident in convictions, we couldn’t be sure unless we had sufficient counsel
b. How many jurors there are is not incorporated because it does not go to the core/ fundamental concept of due process
Duncan v. Lousiana 31
Duncan was processed in Louisiana and only allows right to jury trial for capital cases and hard labor cases. Duncan was convicted with no jury trial because he was being tried by simple assault
Issue: – whether the right to a jury trial is fundamental or not
(1) The trial of all crimes, except in cases of impeachment shall be by jury and such trial shall be held in a sate where the said crimes shall have been committed – Constitution Article III § 2
a. In al criminal prosecutions the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district where the crime shall have been committed – 6th amendment
(2) Jury trials are fundamental because –
a. It protects against judicial impropriety
b. Viewed as protection against governmental/executive over reaching
c. Protection from prosecutors
(3) Very clear about the separation of powers – forces the community in on jury trials
(4) Dissent – justice Harlan notes that a criminal defendant doesn’t have to take advantage of a jury trial some go to bench trial
THE 4TH AMENDMENT
“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 person or things to be seized.”
(1) 4th amendment gets broken down into two clauses:
a. Reasonableness clause
b. Warrant clause
(2) The Reasonableness clause:
a. Now we will see cases where the Court will say that the reasonableness clause must be touched upon to make the search constitutional
i. basically some searched need to comply with the warrant clause but not all do – some might be constitutional even though a warrant was never obtained
(3) The Warrant Clause:
a. Historically the Court took the stance that the government had to comply with the warrant clause
nly applies in the federal government and states are free to adopt or not adopt the exclusionary rule
(2) The Majority Justices think that the exclusionary rule is constitutional in origin:
a. “the weeks rule is of constitutional origin remains entirely undisturbed”
b. “we hold that all evidence obtained by searches and seizures in violation of the constitution is by that same authority inadmissible in state court”
c. adopts the same rationale that Weeks had:
i. deterrence of police and unauthorized searches etc. etc.
ii. need to maintain judicial integrity
1. we aren’t going to worry about the possibility that the exclusionary rule will let someone go free who is guilty
a. explains the cost of judicial integrity
(3) DISSENT: no one argued the exclusionary rule, the case was taken up on a first amendment ground
a. Supreme court could have set this case up for next term and lets reargue it- but this wasn’t done
b. Exclusionary rule must be vastly better then any other remedy provided
i. If the exclusionary rule is right then no other remedy can be available to the states/ people that is better
Katz v. Unites States 75
Was convicted of transmitting gaming information by telephone. FBI obtained information by placing a listening device on the outside of a phone booth that Katz was using. Lower courts upheld the search because there was no physical trespass. Supreme Court says 4th amendment protects people not places
Issue: was it a search?
(1) according to the lower courts:
a. there was no physical trespass because the property is the phone booth and the devise was attached to the outside of the phone booth
b. lower courts perceived this as protecting property and are simply following the guidance in the fourth amendment property up until that time
(2) Supreme Court reversed on the grounds that the 4th amendment protects people not places
a. Very significant choice to what the supreme court says the 4th amendment is trying to protect
(3) Change of conception of the 4th amendment from property rights to privacy rights
(4) How do we define privacy?
a. Two part test:
i. Subjective – expectation of privacy (did the person in the situation have a subjective expectation of privacy?)
ii. Objective – is expectation of privacy one that society is prepared to recognize as objectively reasonable?
iii. This two part test only answers the question: has there been a search that might be protected under the 4th amendment?
1. must answer both of these questions in the affirmative in orde for there to possibly be a search that is subject to 4th amendment protections
