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Criminal Procedure: Prosecution
University of Alabama School of Law
Colquitt, Joseph


Criminal Procedure Outline

Defense Counsel
I. Availability of Appointed Counsel
a. 6th Amendment
i. “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense”
1. Note that the Constitution does not provide a right to government counsel

ii. Incorporation
1. The 6th Amendment became applicable to States via the 14th Amendment’s Due Process Clause
a. Essentially – DPC demands that state defendants cannot be deprived of fundamental rights found in the Bill of Rights

iii. State Constitutions
1. Almost all States have similar provisions – Ex. Ala Const. – “That in all criminal prosecutions, the accused has a right to be heard by himself and counsel, or either
a. Virginia does not have a right-to-counsel provision; however, VA courts have held that Due Process clause requires defense counsel

b. Efficiency of Proceedings
i. Judges prefer for criminal defendant to have counsel for procedural and evidentiary matters
1. Prevents trial judge from becoming de facto legal counsel for the defendant

c. Case History of Appointed Counsel for “Criminal Prosecutions”
i. Powell v. Alabama (1932) – appointment of defense counsel is based solely on the case’s circumstances – ex. capital case, complex evidentiary standards, racial issues, indigent defendants

ii. Betts v. Brady (1942) – Refused to apply Powell broadly – due process only requires appointment of counsel for “special circumstances”

d. Gideon v. Wainwright (1963)
i. Overruling Betts – Court held that the 6th Amendment’s guarantee of counsel is a fundamental right
1. Any person brought into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him

ii. This case did not provided a definitive answer of when exactly appointed counsel is required
1. However, Gideon explicitly incorporated the 6th Amendment to States via the DPC

e. Requirement of Appointed Counsel for Indigent Defendants Defined – Whether the defendant has a recognized right to counsel when adjudicated guilty of the offense for which he was actually imprisoned
1. Argersinger (1972)
a. Any criminal prosecution resulting in the actual deprivation of an indigent defendant’s liberty must be accompanied by the appointment of counsel for that defendant
i. Actual deprivation of liberty is generally considered actual incarceration

b. Under Argersinger, the trial court must make a determination of possible incarceration prior to trial – if trial judge does not appoint counsel, then they have lost the option of sentencing the defendant to prison

2. Scott (1979)
a. The right to appointed counsel requires only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel
i. Due process protection attaches only when loss of fundamental liberty actually results from State action
1. Non-prison punishment do not violate this fundamental liberty

3. Alabama v. Shelton (2002) – Suspended Sentences
a. Court addresses whether the State must provide counsel when the judge gives the defendant a suspended sentence and does not order a prison term – in other words, defendant is sentenced to prison, but not required to serve time

b. A suspended sentence that may end up in the actual deprivation of a person’s liberty cannot be imposed unless the defendant was provided the “guiding hand of counsel” in the prosecution
i. Court may not “activate” the suspended sentence unless defendant was appointed counsel during the original conviction
c. Scalia Dissent
i. This decision would need to reverse Argersinger and Scott because there is no “actual deprivation of liberty”

4. Nichols (1994)
a. An uncounseled DUI misdemeanor conviction – valid under Scott because no prison term was imposed, is also valid when used to enhance punishment for a subsequent conviction

5. Gagnon (1973)
a. Counsel not automatically required in a parole or probation revocation proceeding

f. Critical Stage – When does Right to Counsel Apply
i. Federal constitutional right to counsel applies when two preconditions are met
1. Initiation of an “adversarial proceeding”
2. After adversarial proceeding, government must allow a defense attorney to participate only during a “critical stage”
a. Ex. Preliminary hearing is a critical stage – but DUI examinations are not a critical stage

ii. State v. Pierre (Conn. 2006)
1. The 6th Amendment becomes applicable only when the government’s role shifts from investigatory to accusatory
a. An arrest is insufficient to be considered the critical stage – the State must make the decision to move forward with the prosecution which signals the initiation of the adversary judicial proceeding

iii. Appointed counsel are required for sentencing hearings under the 6th Amendment
1. But NOT criminal appeals – no actual “prosecution” of a crime

g. Availability of Other Experts
i. Ake v. Oklahoma (1985) – DPC and EPC require a State to provide an indigent defendant with access to a psychiatrist if the defendant makes a preliminary showing that his sanity will be a significant issue at trial
1. This also applies to (a) investigators, (b) experts, (c) scientific tests, (d) etc.
a. Must have a “significant issue” pertaining to the defense

II. Self Representation – The pro se defendant
a. Small Minority of Cases
i. 97

eed by the 6th Amendment
i. Defendant has burden of proof – preponderance of the evidence standard

2. This deficient performance prejudiced the defense
a. Counsel’s errors were so serious as to deprive the defendant of a fair trial (a trial with reliable results)
i. Defendant must show that there is a reasonable probability that, but for the counsel’s errors, the result of the proceeding would have been different

ii. More simply, defendant must show that counsel’s representations fell below an objective standard of reasonableness under prevailing professional norms when considering all the circumstances
1. The 6th Amendment does not guarantee an improvement in legal representation – the purpose is simply to ensure that the criminal defendant receives a fair trial

iii. Application of Strickland Test – Bruno v. State (Fla. 2001)
1. Court held that defense counsel was not ineffective to the level proposed by Strickland for the following reasons:
a. Although attorney had alcohol and drunk problems, no evidence that he was intoxicated while working on the case
b. Counsel divulged confidential and damaging information to the trial court – however, these conversations did not have a prejudicial effect
c. Defendant originally failed to cooperate with counsel which prevented such a performance as defendant now requests

2. Dissent
a. In the sentencing phase, defense counsel neglected to raise any mitigating circumstances for defendant’s behavior – this raises to the level of the Strickland test for inadequacy of counsel

3. Cronic (1984) – exception to Strickland test – if defense counsel fails to subject the prosecution’s case to meaningful adversarial testing, then there has been a denial of 6th Amendment rights

c. Other standards and potential issues of adequacy
i. Ineffective counsel may occur with a conflict of interest – an attorney represents multiple clients in the same case and runs the risk of harming one client while furthering the interests of another

ii. Some States utilize “experience” standard as opposed to “performance” standards
1. Ex. Ala. R. Crim. P. require an attorney to have 5 years of experience before defending a capital trial