Criminal Procedure Outline

Keane Criminal Procedure Outline – Fall 2006

DUE PROCESS
I. Defining Due Process
A. Fairness: Hurtado v. CA (1884)
a. D charged & convicted of murder; charging occurred at preliminary hearing via information, as opposed to more normal indictment via grand jury
b. Essentially, d.p. of law means fairness; state can’t deprive you of your liberty or life in any unfair way
1. judge says that the prelim hearing/information proceeding is fair, in fact, compared to secretiveness of grand jury procedure, more fair, thus no violation d.p.
B. Special Circumstances Rule (1940-1960)
a. Criminal Ds were entitled to appointed counsel if there were special circumstances that made it impossible for them to represent themselves adequately; ad hoc determinations
b. Powell v. Alabama (1932)
1. 9 blacks tried together for murder; judge appoints drunken attorney; trial takes an hour (D’s “attny” didn’t make an opening or closing statement or ask questions)
2. Denying effective assistance of counsel violates D.P.
C. Inadmissibility of Involuntary Confessions (1940-60)
a. Brown v. Miss
1. Confessions of black defendants achieved by sheriff through use of torture violated d.p.; confession inadmissible and conviction reversed
II. Incorporation
A. Harlan viewed d.p. as incorporating protections of Bill of Rights
B. In the 60s, series of decisions incorporated 4, 5 & 6th A. protections (except for grand jury requirement)
a. Ex.: Duncan v. LA (1968)
1. incorporation test = Fundamental Fairness: whether right is among those fundamental principles of liberty & justice which lie at the base of all civil & political institutions
2. trial by jury in criminal cases is fundamental to our system of justice, thus 14th A. guarantees right of jury trial in all criminal cases
3. serious v. petty crimes
– crime punishable by 2 yrs in prison is a serious crime and not a petty offense and thus, D (convicted of simple battery; misdemeanor) is entitled to jury trial
* in Baldwin, SC says crime punishable by 6 mos imprisonment triggers right to jury trial
* in Lewis, SC held D doesn’t have a right to jury trial when prosecuted in a single proceeding for multiple petty offenses, even if possible aggregate prison term exceeds 6 mos

RIGHT TO COUNSEL
I. Right to Assistance of Counsel at Trial
A. Special Circumstances Rule
a. developed into flat requirement of counsel in capital cases by 1961
b. in noncapital cases, appointment of counsel where absence of counsel would result in fundamentally unfair trial
c. in Betts (1942), SC held that d.p. didn’t require appointment of counsel for indigent Ds in every state bc it wasn’t dictated by natural, inherent and fundamental principles of justice
B. Gideon v. Wainwright (1963)
a. D charged in Fl state court w/ breaking and entering w/ intent to commit a misdemeanor (felony under Fl law); D requested counsel but was denied under special circumstances rule; D convicted
b. H: 6th A. right to counsel is extended to all felony cases in states through 14th A. D.P. under fundamental fairness
1. seems fundamentally unfair to deny indigent people right to assistance where people w/ money almost always employ lawyers in cases and where the govt employs lawyers to prosecute case
C. Scope of Gideon [Actual Imprisonment Rule] a. Argersinger v. Hamlin (1972)
1. Indigent D charged w/ carrying a concealed weapon, which is a misdemeanor in Fl, punishable by 6 mos imprisonment, $1k fine or both
2. Right to jury trial & right to assistance of counsel are separate and indep rights
– nothing inherently suspect bt having a judge acting as jury or an actual jury
– where def doesn’t have counsel, outcome is suspect given complex nature of legal system and the great need/requirement of lawyers
3. H: D charged w/ petty crime and who faces imprisonment has a right to counsel
4. Dicta: Absent valid waiver, D can’t be imprisoned for any offense (petty, misdemeanor or felony) unless he’s represented by counsel at trial
– difference bt misdemeanor and felony aren’t clear cut and often a misdemeanor can be more complex than a felony (DUI trial can be more complicated than a murder trial)
b. Scott v. Illinois (1979)
1. D convicted of theft & fined $50 by bench trial (theft punishable by $500 fine, 1 yr in jail or both); argues he had a right to have counsel appointed
2. H: No indigent criminal D may be sentenced to imprisonment unless state afforded him right to assistance of appointed counsel
– conviction affirmed bc D wasn’t actually incarcerated
* odd decision in that once judge has decided that no lawyer is merited the judge can’t sentence D to any jail time; also odd bc the legislature has provided for penalties and courts have effectively repealed certain penalties before anything has even occurred
c. Alabama v. Shelton (2002)
1. D convicted of 3rd degree assault; received a suspended sentence of 30 days, 2 yr probation
2. H: A suspended sentence that may lead to incarceration may not be imposed unless D was provided counsel
– suspended sentence is a prison term and once it’s triggered, D is incarcerated not for probation violation, but for underlying offense
D. Review
a. right to counsel in all felony cases and misdemeanor/petty cases in which there is any possibility of incarceration
b. almost all states provide indigents w/ defense counsel in any criminal case because it’s hard to determine what the sentence will be before trial
II. Counsel on Appeal & Other 6th A. Protections
A. Counsel & Appeal
a. Griffon v. Illinois (1956)
1. SC invalidates Ill statute denying free transcripts of trial proceedings to indigents in circumstances in which a transcript is necessary for appeal under Ill law (E.P.)
– in Mayer, SC held that state must provide indigent D, free of charge, w/ record of sufficient completeness to permit proper consideration of claims on appeal, even though such a record is not a condition precedent for an appeal
b. Douglas v. California (1963)
1. Ds were allowed to ask dist court of appeal to appoint counsel for appeal but if the court refused, Ds had to represent themselves or find own counsel; D denied only if court determined assistance of counsel wouldn’t be helpful (denial not of access but of financial assistance where assistance futile)
2. SC holds that CA, having set up an appeals process, can’t discriminate on the basis of money and thus must provide indigent counsel (E.P. & D.P.); right to counsel on guaranteed appeals
c. Ross v. Moffitt (1974)
1. H: Indigent state Ds don’t have a right to assistance in discretionary appeals, thus state supreme courts don’t have to appoint counsel to indigent Ds
2. E.P. doesn’t require complete equality, but rather is violated if a group of people are singled out/treated differently w/o a rational basis (for invidious reason)
– state supreme courts function isn’t to ensure validity of conviction (appellate court’s job) but rather to take important cases and deal w/ significant legal questions and can decline to take a case for any reason
3. D.P. is less implicated/protective at appellate level
– once convicted, you’re presumed guilty and an attorney is being used as a sword to overturn conviction; although D is less well off w/o counsel, he’s already had an appeal where counsel was provided to help and that earlier brief can be used to conduct review a state SC level
d. MacCollum [habeas corpus] 1. H: Indigent prisoner seeking review under habeas corpus has no constit’l right to a free transcript; ok for statute to require trial judge to certify asserted claim isn’t frivolous and that transcript is necessary
2. Habeas corpus phase is analogous to discretionary appeal phase
e. Evitts v. Lucey (1985)
1. H: Indigent appellant appointed counsel must have effective assistance of counsel (D.P.)
III. Effective Assistance of Counsel
A. Critical Stages of Proceeding
a. in Coleman, SC held that right to counsel applies at every critical stage of a criminal prosecution
1. Crim prosecution = when adversary judicial proceedings have started through sentencing process (from initial appearance or any formal charging process and continues until final determination of sentence is imposed)
2. Critical = formal interaction bt D & state that could adversely affect D’s ability to exercise a legal right; informal meeting bt D & rep of state designed or likely to elicit incriminating info
– ex. of formal: Prelim hearing, initial appearances, arraignments
– ex. of informal: in-custody interrogation, etc.
b. 6th A. right to counsel doesn’t apply past sentencing (Brewer), however…
– d.p. mandates certain procedural protections in parole/probation revocation proceedings (right to hearing; right to counsel in hearing if requested and if reason provided why counsel will be helpful)
B. Meaning of Effective Assistance
a. Prohibited interferences w/ attny-client relationship:
1. attorney may not be prohibited from conferring w/ client during an overnight recess that falls bt direct exams and cross-exams
2. lawyer may not be denied right to give a closing summation in a nonjury trial
3. stat