Criminal Procedure
Spring 2014
Professor Keane
CRIMINAL PROCEDURE OUTLINE
INTRODUCTION
Three Types of Criminal Conduct
1. Felonies
a. Federal: Incarceration for more than 6 months.
b. States (49/50; no Louisiana): anything punishable by more than 1 year. One day over 1 year is a felony.
2. Misdemeanors/petty crime (note that you can have a federal misdemeanor).
a. Federal: anything for which you cannot be sent to jail or incarcerated for more than 6 months (has to be 6 months or less)
b. State (49/50): anything that you cannot be incarcerated/put in jail for more than 1 year (has to be 1 year or less). This doesn’t mean that misdemeanor gets only one year sentence; they can be sentenced for 1 month; as long as it’s below threshold mentioned above.
3. Infraction – Crime where you cannot be punished with any kind of incarceration; all you can get is a fine. Ex: illegal left turn, run stop sign.
14TH AMENDMENT (Due Process)
14th Amendment – Due Process: “Nor shall any State deprive any person of life, liberty, or property, without due process of law . . . .” Through 14th Amendment, States are now bound by the Bill of Rights (first 10 Amendments) (Duncan v. Louisiana).
INCORPORATION/ABSORPTION
TEST/RULE for 14th Amendment Due Process violation:
· Does the governmental conduct/behavior “shock the conscience”
· Are the governmental authorities acting in a fundamentally unfair way?
RULE: BOR are now incorporated into the 14th Amendment Due Process, and all provisions apply to states.
· EXCEPTION: all protections in BOR, with exception to the right to grand jury under the 5th Amendment (Hertado v. CA), applies to the states. In other words, grand jury remains a right for individuals prosecuted at federal level, but not states.
REMEDY for Due Process violation: Evidence will not be admissible.
6th AMENDMENT
“In all criminal prosecutions, the accused shall enjoy the right . . . to have the Assistance of Counsel for his defense.”
RIGHT TO COUNSEL
GENERAL RULE: D does not have to invoke or ask for his 6th Am right to counsel; D is automatically entitled to counsel. If counsel is not given to you, then your 6th Amendment right is violated.
RIGHT TO APPOINTED COUNSEL
FELONY RULE at TRIAL: An indigent person who has committed a felony is entitled to a lawyer under the 6th Amendment. If they cannot afford lawyer, a lawyer must be provided by the state.
MISDEMEANOR RULE at TRIAL: An indigent person who has committed a misdemeanor is entitled to a lawyer/counsel under the 6th Amendment (Argersinger case).
EXCEPTION/LIMITATION: An individual does not have the 6th Am RTC for a misdemeanor if the final punishment/judgment is something other than incarceration, such as a fine (this is applicable even if the statute says a crime is punishable by x amount of time incarcerated).
REMEDY FOR VIOLATION OF 6TH AMENDMENT RIGHT (for felony and misdemeanor): If indigents are deprived of counsel, it is an automatic reversible error (meaning you will automatically get a new trial)
RIGHT TO RETAINED COUNSEL (6th Amendment Right)
FELONY RULE at TRIAL (Right to retained counsel – get private counsel): if a defendant wants to hire their own counsel, the court/government can never interfere with getting your own counsel.
MISDEMEANOR RULE at TRIAL (Right to retained counsel – getting private counsel): if a defendant wants to hire their own counsel, the court/government can never interfere with getting your own counsel.
PROCEEDING/DURATION:
· STARTING TIME: When D has been formally charged.
o 1) Indictment (in grand jury state) – When is filed (after arrest, booking, filing complaint, first appearance, and then grand jury has voted that someone should be held to trial and that charge is correct), and stamped by clerk, this is when the 6th Amendment right to counsel begins
o 2) Information (in non-grant jury state) – Similar to the indictment document. Information comes after preliminary hearing; judge hears testimony by witnesses and says there is probable cause that D is guilty of a crime and D committed a crime
o 3) Complaint – The DA gets court clerk to file a complaint against a defendant. “I arrested D on drunk driving.” DA tells clerk to file complaint against someone.
o 4) Arraignment – where D is arraigned in court where judge tells D of D’s charges
· ENDING TIME: 6th Amendment right to counsel ends with conviction and sentencing.
SPECIFIC SITUATIONS FOR RIGHT TO COUNSEL:
1) LINEUPS & SHOW-UPS (6th Am Right)
· A lineup is one person with a number of others who are displayed to victim or witnesses. Preferable is bout 6 with the same looks and age.
· A show-up (more problematic) where suspect is shown alone to victim or witnesses and are asked to whether it’s the person.
RULE: D has a right to counsel through 6th Am at lineup & show-ups ONLY after D has been formally charged
REMEDY: If lawyer is not present at lineup and D had a RTC, then
· RULE: If D is identified at the uncounseled line-up, the evidence of identification during lineup cannot come into evidence (see below);
· RULE: If this identification does come into evidence (where it is a violation of RTC), case is automatically reversed (see below).
RULE for in-court identification: If there a denial of RCT at lineup and the prosecution doesn’t bring in the pre-trial uncounseled identification of D, in-court identification [by witnesses present at line-up] should not be allowed UNLESS the prosecution is able to show by clear and convincing evidence (~75-80%) that identification by a witness in trial comes from some independent source
Special holding: Show-up in Exigent circumstances may be permissible.
14th AM RULE: 14th protects any identification procedures that was unduly suggestive (even if you don’t have right to counsel).
2) PHOTO LINEUPS: Right to Counsel (14th Am Right)
RULE: There is no 6th AM RTC for photo lineups or photo show-up.
14th AM RULE: 14th protects any identification procedures that was unduly suggestive.
3) PAROLE AND PROBATION HEARINGS: Right to counsel [Due Process 14th Amendment] (these refer to parole and probation hearings, which are neither trials nor appeals).
· Parole – sentenced to prison, but your conduct is good, so you are paroled after spending some time in prison. If you behave, you’re fine. If you mess up, government may revoke your parole and put you back in prison to serve your remaining sentence
· Probation – you’ve been found guilty, and court sentences D to a year in jail, but judge suspends that sentence and puts D on probat
l for new trial; there’s no prejudice test). (Glasser v. US):
· Note: This is not outlawing lawyers from representing two defendants.
RULE (Cuvler v. Sullivan) If there is COI, but it was not apparent/created by the state/no one objects to/judge is not aware of, to overturn conviction because of the COI, D must show COI existed by showing:
1. There must be an actual COI that existed (based on a reasonable probability result would have been different), where lawyers represented conflicting interest; AND
2. The COI had an adverse effect upon what the lawyer did for the client. In other words, the lawyer performed differently and less well because of the conflict.
REMEDY: if judge doesn’t inquire and D is later convicted, but D shows that there was not a conflict free representation, then it would be an automatic reversal per se/reversible error (automatic reversal). It’s not going to be reversal per se (there’s presumption that there was violation and govmt has burden to show otherwise).
JUDGE’S DUTY TO INQUIRE RULE (Mickens v. Tailor) – Professor did not go over this: A state trial judge is not required to make any inquiry into possible conflict if neither the D nor the lawyer objects to multiple representations
RULE: A judge has a duty to inquire and inform D that D has right to conflict free counsel if (In other words
1. COI is not imposed by the state(e.g. the state does not have any part in creating the COI; this is a situation where it is not the State imposing a COI on D, and some other circumstances occur, where judge is not aware of COI),, BUT
2. Judge is aware or reasonably should know of the COI (note that the COI is not created by the judge)
WAIVER – Waving the Right To Counsel: 6th Am RTC is the hardest to waive; the other Amendments are easy to waive. Reason is because 6th Am RTC is a basic guideline to determine whether person has had any trial at all. Having a trial is central to the right to due process.
TEST/RULE for D to waive RTC: Waiver for RTC may not be presumed from silence. The fact that you don’t ask for a lawyer doesn’t mean that you waived it.
1. D must understand his right to counsel;
2. D must know what he is giving up; AND
3. D freely, voluntarily, and intelligently waived his RTC
RULE: Court can refuse same representation and ask for separate lawyers if there is COI. If co-defendants all want to be represented by the same lawyer, and waive their rights to object to the COI, the court does not violate the defendant’s 6th Amendment rights by refusing to allow for multiple representation, so long as there is a reasonable possibility of conflict. Court has duty to protect integrity of the process and refuse to allow conflicts to proceed.
