Criminal Procedure: Adversarial Systems
Nunn
Spring 2016
Introduction
What is Criminal Procedure?
The study of those procedures used to determine who violated the substantive criminal law and what the consequences of that violation will be
In other words, …
Who broke the law? And
What is going to happen to them?
Two Main Functions of a Criminal Justice System
Determination of guilt
Investigatory procedures (was the law broken?)
Police practices
Reports by public
Investigative grand juries
Accusatory Procedures (who do we think broke it?)
Screening grand juries
Charging mechanisms
Preliminary hearings
Adjudicatory Procedures (who in fact broke it?)
Guilty Pleas
Floggings, stoning’s, etc.
Assignment of punishment
Exclusionary Rule
Sanctions (discovery)
Other functions:
Management of poverty
Labeling and blaming
Propagation of racism
Controlling mental illness
Possible Approaches to Criminal Procedure
Doctrinal and Analytical = rules
Easier to convict v. harder to convict
What’s the main evil?
Power of control vs. conduct control
Systems Analysis/Operational
Case load; why guilty pleas so prominent
Sociological = relationships
Pragmatic = what’s the best way to do something?
Right to Counsel
The 6th Amendment
“In all criminal prosecutions, the accused shall enjoy the right…to have the assistance of counsel for his defense.”
Powell v. Alabama
Facts: The Scottsboro Boys case. African American youths who got in a fight and threw white youths off of a train, two white girls said they raped them
Two issues:
Were defendants denied their right to counsel?
Was the denial of counsel a due process violation?
“In a capital case, where the defendant is unable to employ counsel, and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like, it is the duty of the court…to assign counsel as a necessary requisite of due process of law.”
Why did the court not decide the case on lack of sufficient time to prepare?
Note 8, Pg. 32. There was no duty impressed on anyone for zealous representation
Is this an extension of federal authority? On what grounds?
Unless due process violation, not a federal issue – no business in federal court
The fundamental right to counsel applies when it is a death penalty case. But now question is… is it limited to the narrow set of circumstances set out in the holding? Or expanded to include most or all indigent defendants?
Incorporation of the Bill of Rights
Total incorporation
Bill of rights applies to the States in its entirety
Fundamental Rights
Aspects of rights fundamental to “ordered liberty” or basic justice apply
Selective incorporation
Some rights, but all aspects apply
held:
Counsel was a fundamental right in capital cases
held:
Counsel was NOT a fundamental right in ordinary felony cases
Gideon v. Wainwright
Facts: Florida case, charged with a felony and asked for court to appoint counsel, and court said no because it wasn’t a capital case
– right to counsel in capital cases a fundamental right
– right to counsel in run-of-the-mill felony cases not a fundamental right
Issue: Should Betts be overturned?
Holding: Failure to appoint counsel in felony case denies due process
Precedent says test is if it is a fundamental right
Attorneys are “necessities, not luxuries”
Weight of state opinion
Right to counsel in all felony cases without the need for a special circumstance test
Extending the Right to Counsel
Scott v. Illinois (pg. 965)
Only applies right to counsel to indigent D’s being sentenced to prison
Alabama v. Shelton (pg. 970, note 7)
Probation revocation
If at the time D is put on probation, D didn’t have an atto
Faretta v. California
Defendant wanted to represent himself, initially granted and then later questioned him about legal procedure, and reversed decision and appointed him a public defender against his will
“Grants to the accused personally the right to make defense”
Added on rights to counsel, did not remove any pre-existing right to self-representation
Even though attorney manages a lot of decisions, only justified by D’s consent to counsel as representation
“Counsel is not an organ of the state interposed between an unwilling defendant and his right to defend himself personally.”
Waiver of Right to Counsel
D must be informed of the dangers of self-representation
D must affirmatively state willingness to waive right to counsel
Court must find that self-representation will not unduly impede trial
Competency and Waiver of the Right to Counsel
Godinez v. Moran (pg. 992, note 9)
Medicated after imprisoned for depression
Competent to stand trial, so competent to waive counsel?
Consult with lawyer?
Understand proceedings?
Have to know what’s going on
Indiana v. Edwards (pg. 995, note 1)
Changed standard into three levels of competence
Incompetent to stand trial
Competent to stand trial, competent to waive counsel/plead guilty, but not competent to represent them self
Fully competent to waive counsel/self-represent at trial (Faretta)
Required to appoint counsel when mentally incompetent? Edwards doesn’t answer but most courts appoint counsel if they believe D is mentally incompetent
