CRIMINAL PROCEDURE
KEANE
SPRING 2012
Right to Counsel on Appeal
· Every state and federal system gives defendants right to appointed counsel for their first appeal.
· Appeal system is NOT a constitutional requirement, however, where a state has an appellate system, due process rights apply: attorney must be provided and must be effective
· Douglas v. CA (1963): Petitioners in Douglas were convicted and appealed as of right to the California Court of Appeal. On appeal, petitioners requested, and were denied, the assistance of appellate counsel after the court of appeal made an independent investigation of the record, made a determination that state financed assistance would be futile. Court found the California procedure unconstitutional
Rights for Indigents
· State has no obligation to make everything equal between indigent and wealthy Ds, but can’t deny D access to court system completely based on indigence
Limitations to Counsel on appeal
· Right to Counsel does not extend past the first appeal as of right.
· Ross v. Moffitt (1974): Douglas v. California, does not be extend to discretionary state appeals and for applications for review in the Supreme Court. Neither the Due Process Clause nor the Equal Protection Clause requires that indigent Ds be provided with counsel on his discretionary appeal to the state supreme court.
· REMEMBER: If the lawyer screws up after the first appeal (eg forgets to file for SC review, there is no case on lack of effective counsel.
Rationale for denying free counsel for discretionary appeals:
· (1) There’s a difference between the role of counsel at trial and at the appellate level. Shield v. sword.
· (2) There’s a difference between the functions of the different appellate levels. The automatic appeal deals with whether there has been a correct adjudication of guilt, while the discretionary appeal deals with whether the subject matter has significant public interest, whether it involves legal principles of major significance, etc.
· (3) Since Ds automatically get one appeal, they haven’t been denied meaningful access. Also, D’s claims of error have already been organized/presented in an orderly way, state or federal supreme court can still make a decision.
· (4) Prof’s analysis: At this point, accuracy is very likely, so due process req’ts have been met.
HABEAS CORPUS Attacking one’s conviction by claiming it is unlawful (alleging something unconstitutional happened).
Right to Counsel for Habeas review: This entire area is discretionary review, so you’re not guaranteed a lawyer (but CA does and other states/feds to it statutorily).
Probation revocation (conditional right to counsel)
· Probation: conditional freedom instead of sentencing for crime. Underlying sentence has been suspended
· Gagnon v Scarpeli person has already been convicted on underlying charge, has probation but accused of screwing up. Argument: My conditional liberty is being taken away.
· 6th amendment right to counsel doesn’t specifically apply but 14th amendment due process issue remains. Not as unconditional as the 6th amendment right
· At trial counsel MUST be given unless waived. This is because there is less concern after conviction, person has been found guilty. Less pressing due process concern
· These are minimum requirements under Gagnon and the constitution. CA extends this right by statute.
Parole revocation
· Same 14th amendment based right to counsel,
· Sentence suspended after part of it has been served. Conditional freedom from prison
· right to counsel if 1) you have to ask for it. 2) you have to show some reason for why counsel would be helpful
· These are minimum requirements under Gagnon and the constitution. CA extends this right by statute.
Effective Assistance of Counsel
· Old standard: “mockery of justice” – had to shock the conscience had to reduce the trial to a farce or charade.
· Strickland v. Washington (1984) – Two part test sets out the current test for establishing a claim of ineffective assistance of counsel. Defendant must show:
o (1) Counsel’s performance fell below an objective standard of reasonableness; and
o (2) Counsel’s performance gives rise to a reasonable probability that, if counsel had performed adequately, the result of the proceeding—the trial, the sentencing hearing, the appeal—would have been different.
Effective assistance to counsel reasonableness prong:
· D must identify particular acts/omissions of ineffectiveness.
· Determined by prevailing professional norms and considering all the circumstances.
· There’s a strong presumption that the lawyer’s actions were NOT deficient. (This is O’Connor’s view, and it has been criticized.)
Effective assistance to counsel reasonable probability prong:
· LOOK TO CIRCUMSTANCES OF CASE
· Problematic: even if it doesn’t make a difference, there should be due process for EVERYONE
Basic duties of a defense attorney (list is not exhaustive, advocacy is an art):
· Duty of loyalty
· Duty to avoid conflicts of interest
· Duty to advocate D’s cause
· Duty to consult w/ D on important decisions and to keep D informed of important developments
· Duty to have and use skills and knowledge
Professional Rules of Conduct set a basic standard
· There’s only a presumption of prejudice when D’s lawyer had a conflict of interest. Other than that, D has to prove prejudice.
· Duty to investigate – “Counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.”
Attorney’s responsibility where his client wishes to commit perjury
· Not a conflict of interest. Effective counsel under the 6th amendment DOES NOT require an attorney to assist his client in committing perjury. A defendant has no right to perjure himself. In fact, as an officer of the court, the attorney has a duty to notify the court where he knows this is the case. Doesn’t matter that outcome would have been diff
Where the court appointed attorney says there is a conflict of interest
· The attorney must be replaced or the decision is per se reversible, with no finding of reasonableness prong required
· Glasser v US: Federal, 6th amendment case, counsel for co defendant is removed. Judge appoints Glasser’s lawyer to represent both over his objection
· Note, the Court DOES NOT prevent multiple representation. Even though frowned upon, defendants can be represented by a single private lawyer.
Where there is a conflict of interest imposed by the trial court,
on appeal the conviction must be reversed
· 6th amendment right to counsel has been denied
· Has to be a new trial
· Note: Double jeopardy doesn’t apply because by appealing the defendant waives his protection from double jeopardy. Appeal is not a RIGHT.
· Note: only time where there is a reversal that cannot be followed by a new trial is where the appellate court says there was insufficient evidence (acquittal)
If a defendant chooses to be represented by a co-defendant’s lawyer, can there still be a conflict of interest?
· Cuyler v Sullivan: Sullivan indicted on first degree murder with two others fires his PD and is represented by other two’s attorney. Court still have to analyze for a conflict. The mere fact that same lawyers represented Sullivan isn’t enough to say a conflict of interest occurred.
· There is no presumption that the possibility for conflict has resulted in ineffective assistance of counsel. In order to establish a violation of the 6th Amendment, a D who raised no objection at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance.
· D must show: (1) that there was an actual conflict; and (2) that the conflict adversely affected the lawyer’s performance.
When has a person been charged with a crime?
· 1) Complaint has been filed (official doc)
· 2) Information: formal charge issued by the Prosecutor or District Attorney that alleges commission of a felony. Usually issued after a probable cause hearing has taken place
· 3) Indictment (criminal charge issued against a defendant after a Grand Jury has heard evidence and decides that enough proof is available to prosecute.
s chance to be swayed by police or prosecutor.
Lineup before and after US v Wade (1967)
· In landmark case was Wade, Warren ct tried to address problem of police abuse of eyewitness identification using the 6th Am.
· Rule was not applied retroactively to cases decided before Wade, too costly to the crim justice system and law enforcement relied on procedures that Wade had changed. Court limited inquiries in cases preceding Wade to a due process standard (fundamental fairness)
The 6th Am. Applied: Lineups, Showups, and Photographic Arrays
· The defendant has the right to counsel at lineups b/c it’s a critical stage of prosecution (D is facing the resources of the state and he needs counsel).
· Where a D is denied 6th amendment right to counsel, an in court ID cannot be introduced unless the State can show the Court with clear and convincing evidence that it wasn’t tainted or influenced by the improper prior line up (independent source).
· IDs made outside presence of D’s attorney are per se excluded
Lineup procedure
· In order to be fair, lineups should consist of 5-6 ppl looking kind of the same.
· Wade does not apply for IDs made BEFORE the defendant has been charged with a crime
· APPLYING THE WADE RULES
Photographic arrays
· The 6th Am. does not grant the right to counsel at photographic displays conducted by the Government for the purpose of allowing a witness to attempt an identification of the offender. United States v. Ash
· Reasoning: There’s no physical confrontation between the accused and the state.
· Due process standard is used, is whatever the police did fundamentally unfair (e.g. showing just one photo)
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 persons or things to be seized.” – U.S. Const. amend. IV.
Requirements of the 4th amendment
(1) No unreasonable searches and seizures.
· One of the most powerful protections. It sparked the revolution! (Brits were looking for evidence of sedition.)
· Note that this isn’t a prohibition against ALL searches and seizures. They just have to be “reasonable”.
(2) Warrants must be supported by probable cause. Note that the two clauses are independent of each other.
Fourth Amendment jurisprudence under Boyd v. United States (1886)
· Court at one time applied 4th am to civil cases: seizing private papers doesn’t comport w/English and American law. The only thing the gov’t can seize is something they have a greater right to than you do (e.g. contraband).
· This is the broadest protection possible; eventually the Warrant Court kills it completely.
· Holding incorporates the 5th amendment: 4th Am. prohibits unreasonable searches and seizuresà The Court thinks this is “unreasonable” because it violates the 5th Am. by compelling Ds to incriminate themselves.
· Treats the 5th Am. like it’s a 3rd clause of the 4th Am. (This is the last time this will ever happen.) problematic b/c the 5th Am by its own text applies to criminal cases