Criminal Procedure Outline

 
Prof. Keane – Criminal Procedure – Hastings Spring 2014
 
Introduction; History: The Concept of Due Process
o    All Crim Pro grounded in Constitution
·         References in Constitution proper
§  Habeas Corpus: bring me the body
·         Art 1 Section 9 Clause 2
·         Writ of Habeas Corpus: petition from prisoner to court to pull from jail to have charges/reason for imprisonment justified before the court
·         Authority/State must justify imprisonment
§  Trial by Jury
·         Art 3 Section 2 Clause 3: all criminal trials by jury of peers
§  Extradition Clause
·         Art 4 Section 2 Clause 2: delivery of fugitives to state where crime committed/originated
·         References in Constitutional Amendments
§  4th Amendment: protection against unreasonable search and seizures
§  5th Amendment: criminal actions and provisions concerning Due Process and Just Compensation Clauses
·         Protection from: self-incrimination; double jeopardy
·         Guarantee Due Process
§  6th Amendment: Rights of the Accused
·         Right to: lawyer; speedy/public trial; trial by/in jury/district committed; impartial jury; notice of charges; confront witnesses; subpoena power to compel witnesses
·         Originally, Constitutional Crim rules only applied to Fed Gov't; but Civil War and 13th, 14th, 15th Amendments
§  14th Amendment
·         Nor shall any state deprive life/liberty/property w/o due process of law
·         14th Am extends Constitutional Due Process to states
o    Hurtado v California (SCOTUS)
·         Arraigned and tried for murder in California, but no Grand Jury
·         writ of habeas corpus to SCOTUS b/c deprived of Constitutional Due Process, no Grand Jury procedure.
§  Used Preliminary Hearing: arrested, charged, open court, D and P present while witnesses called and testify, and D allowed to cross ex
·         Judge determines if there is probable cause that D is guilty, and if found issues information
§  Grand Jury: in secret, no D, no D's lawyer, no D cross ex of witnesses
·         Issue: Whether 14th Am makes Bill of Rights mandatory upon the States
§  Answer, it does not extend all rights to States, 14th Am designed to protect slaves
§  But, 14th Am does require state to provide Due Process of law
·         Court: Due Process is guaranteed separately from Grand Jury in 5th Am, so Due Process does not encompass right to a Grand Jury
§  Due Process is compelled upon State by 14th Am, but Grand Jury is not extended from 5th Am to States by 14th Am.
§  Because D deprived of Grand Jury, but not Due Process, no violation of 14th Am
§  Question becomes how to define Due Process? What is included?
·         Court determines basis of Due Process is Fairness. Not unfair to substitute Prelim Hearing for Grand Jury, b/c Prelim Hearing allows more participation/defense/notice compared to Grand Jury
·         No denial of Fairness
The Bill of Rights; 14th Am Incorporation; The Right to Counsel
o    Powell v Alabama (US 1932)
·         9 black men arrested for alleged rape, convicted
·         Trial court appoints counsel on morning of trial from gallery
·         Court: denied right to counsel, and because no assistance of counsel there was no trial, denial of Due Process
·         But did not extend 6th Am right to counsel to states; ruling is based on denial of Due Process/fairness
·         Due Process ruling only impacts cases with exactly the same facts; not broadly applicable
·         Combination of events here made need for counsel especially critical to trial and fundamental fairness
o    Brown v Mississippi (US 1936)
·         Farmer doesn't pay sharecroppers, later found murdered
·         3 black men arrested and tortured for confession
·         SCOTUS reverses the conviction on grounds that confessions should not have been admitted
§  Considers it violation of 14th Am due process, does not incorporate the 5th Am right against self incrimination
·         Violation of civilized standards of due process, shocked the conscious, against fundamental fairness
·         Shaky terms that don't mean much, mostly judicial intuition
o    Palko v Connecticut (US 1937)
·         Example of difference between Due Process and BoR:
§  Court determines right against double jeopardy is not part of 14th Am Due Process, and does not incorporate BoR, not fundamental to Due Process
o    SCOTUS slowly applies incorporation and absorption to apply BoR to the states
·         Overtime, the inclusions in Due Process changes and grows, not stagnant, and new rights can be included in Due Process on case by case basis
·         Due process is about fairness, at minimum need to have a trial, and needs to be a process that ensures accuracy
o    Note: Classifications of Misconduct
·         Felony: punishable by more than 1yr (49 states, not LA)
§  Fed is more than 6mos
·         Misdemeanor: punishable by no more than 1yr (49 states, not LA)
§  Fed is no more than 6mos
·         Infraction: no risk of incarceration at all
o    Duncan v Louisiana (US 1968)
·         Battery trial (misdemeanor in LA), D wants jury trial, given bench instead, guilty
·         D habeas to SCOTUS, argues entitled to jury trial under 6th Am
·         SCOTUS extends right to jury trial to the States through the 6th Am to all non-petty cases
§  Rather than piecemeal, court holds entire 6th Am is extended to the states
§  Supports the Bill of Rights theory for Due Process
·         Whether right to jury trial in petty crimes is not extended or decided by the court (infractions)
·         Departs from past cases, don't have to show that something was fundamentally unfair
§  It's sufficient to just show a right was deprived/infringed
o    Modern: all Due Process guarantees from BoR extend to the states (complete absorption/incorporation)
·         Exception: right to Grand Jury (Hurtado) not extended, never been challenged
·         2010: extension of 2nd Am to 14th Am Due Process
o    Due Process
·         Fall back position for D: no specific protection in BoR violated, but argue against principles of justice, fairness, etc (basically everything SCOTUS used to extend BoR to states)
6th Am Protections
o    Powell v Alabama: no precedential value, only applies to its facts, so considered Due Process rather than creating right to counsel
·         Special circumstance such that denial of counsel is denial of due process
o    Gideon v Wainwright (US 1963) (landmark case)
·         In FL, Gideon (D) asks for counsel, denied b/c of state law
·         Overrules Betts v Brady, says 6th Am right to counsel applies to the states in all felony cases
§  To deny 6th Am right would be to deny 14th Am Due Process, b/c can't have a fair trial w/o having a lawyer
§  Absorption process: over time, 6th Am has been absorbed into 14th Am, and now denial of counsel violates
§  [Note: retroactive effect of ruling: determination that is made by the court, sometimes yes and sometimes no, but here not retroactive] ·         Balance stability of justice system and whether prosecution relied upon the prior rule with denial of rights
·         Gov't hire lawyers to prosecute, those with money hire lawyers, if indigent had money would hire a lawyer: this is a fundamental right that those who have it available will use
·         Special Circumstances doctrine still applies, too
o    Argesinger v Hamlin (US 1972)
·         Misdemeanor, no lawyer appointed
·         Extend Gideon to misdemeanor cases (right to counsel if charge carries any incarceration)
·         Court: right to jury trial and right to counsel do not have same application; each has different justifications (lack of jury is not a fatal defect)
§  Right to counsel is elemental to a trial: no counsel means no trial, means no Due Process
§  Misdemeanor cases are hurriedly processed by judges, which makes protection/advocacy by counsel crucial; whereas felony gets full time
·         Not extended to infractions, only to cases carrying risk of incarceration
o    Scott v Illinois (US 1979)
·         D faced with misdemeanor w/threat of incarceration; no lawyer appointed
·         Judge finds guilty and fines $50; no incarceration
·         D appeals, claiming right to lawyer refused
·         SCOTUS: right to counsel in petty cases only applies if D will be incarcerated
§  Hindsight/foresight issue: judge has to decide whether to give the D a lawyer or not at the beginning of the case, with no facts/argument
·         If refuse lawyer, basically mean judge has decided not to incarcerate
·         But if ultimately incarcerated, the judgment will be thrown out
·         If grant lawyer, means open to incarceration
·         Permits effective circumvention of statutes by judges (decide not to incarcerate regardless of the law, or refuse a lawyer and then violate right to counsel)
Scope of Counsel and Representation
o    Attachment of Right to Counsel
·         Felonies: always entitled to counsel, and if not appointed counsel it is always reversible error, constitutional guarantee
·         Misdemeanors (constitutional requirement): entitled to counsel, but court can deny appointment of counsel as long as doesn't incarcerate D
§  Scott v Illinois
§  Fed: Congress passed statute requiring counsel for any misdemeanor
·         At critical stages in criminal prosecution, right to counsel will apply
·         Enhancements: prior conviction (w/o counsel) used to enhance the sentence of current conviction
§  Nichols: tried and convicted, no incarceration, so no lawyer is required. OK to use past valid conviction to enhance subsequent conviction
·         6th Am is a guaranteed right, don't have to request
·         6th Am right to counsel at trial begins when someone is formally charged with the offense (usually when indictment(GJ)/information(PH)/complaint(misdemeanor)) is filed)
§  Does not begin before formally charged
o    Warren Court and mistakes in pretrial identification (line-up/show-up procedures)
·         Intentional and incidental abuse
·         Issues of fairness: