Criminal Procedure I
Fall 2015
Gabriel
CRIMINAL PROCEDURE I
Themes:
Relevance of Data
Using the criminal justice system to cure societal ills
Exponential growth in criminal law since the 1980s
Ex: ACLU study on “stop and frisk” in NYC
Substantive Criminal law
Race and its role in Ct’s decision making/underlying facts
Heart of the mob culture Moore v. Dempsey
Incarceration rates based on race
Gender disparity in incarceration rates
If Due Process brings a definition of fairness, how can we get race/gender fairness? Is it possible?
Use of precedent to add consistency to the law
Original intent
Framers of the Bill of Rights and 14th Amend
How do we apply original intent to new technology?
Judge as political actors
Possible remedies for Const. violations by police
Prosecute cops
Suppress evidence recovered as a result of a constitutional violation
Due Process:
Framework:
Is the right fundamental?
Is the right found in legal traditions of other nation? (no longer standard)
Is the right found in the American legal tradition?
Powellà if the right is in the Constitution, that’s good evidence it is fundamental
This presumption can be narrowed to factual situations
What grounds for finding DP violation?
Accuracy
Fairness
2 DP clauses
5th Amend
14th Amendà needed because original idea was Bill of Rights inapplicable to states
Moore v. Dempsey (1923)
White deputy shot; white mob forms and kills many Blacks
Blacks prosecuted, not Whites
Trial lasted 45 minutesà all sentenced to death
Had a lawyer and an all-white jury
SCOTUS: trial was a maskàsimply went through the motions
Racial hierarchy was at the heart of the caseàclosest thing to lynching without an actual lynching
Ongoing questionà how to determine DP violations when superficially it looks like sufficient process
Brown v. Mississippi (1936)
coerced confession after extreme police brutalityà hung from tree and whipped
Brought into confess for sheriff but wasn’t tortured then sheriff introduced confessions at trialà state created witness who could testify without “knowing” of involuntariness of confession
MS S. Ct. à D attorney should have objected when evidence producedà procedural misstep barred DP violation
SCOTUS overturned on DP grounds
A confession that is involuntary is inadmissible on DP grounds
Fairness or accuracy? When will action be so wrong process wont matter?
Powell v. Alabama (1932)
D had a lawyer so 6th not violated in and of itself
DP requires notice and a hearing
In order for a hearing to be reasonably accurate and fair, both sides must have counsel and counsel must prepare case before trial
Fairness was the Ct’s concern not accuracy
Practical note: if don’t ask for continuance once appointed, might violate duty of competence
At least place in record that objected on DP and Right to Counsel grounds
HYPO: D accused of shooting a cop and at trial, Ct filled with police in uniform
Moore: intimidation, prejudicial
Notion of the mob
DP and framework of Incorporation
Distinguish between “free standing” DP that attaches to nothing in particular but is fundamental
Modernà all articulated rights are process
Historicalà more encompassed rights than specifically spelled out regardless if in BoR
Allowed rights to get to states before incorporation doctrine formed
Cooper v. Oklahoma (1996)
DP violation to require D who claims he is incompetent to stand trial to prove incompetence by clear and convincing evidence
Violation of DP to prosecute someone incompetent to stand trial
Competency is part of 5th DP
States can place burden on Dà Medina v. California
Looked to history of common law
Historically most states required D to prove by preponderance
NOTE: Ga death penalty issueà puts burden on D beyond reasonable doubt to prove mental retardation
SCOTUS has found DP violation to execute mentally retarded
Hamdi v. Rumsfeld (2004)
Civil case
D went to Afghanistan months before 9/11 and joined Taliban
Labeled “enemy combatant” by gov’t (term not defined)
Congress passed statute giving Pres power to go after those responsible for attacks
D given public defenderà BUT prevented from speaking with client
Worried about POW getting attorneys
However, Hamdi is American citizen not traditional POW
Criminal const. rights don’t apply during warà called “War” on Terror but not an actual war
Ultimately gets a hearing in front of a “neutral”; not a trial by juryà could be military tribunal
Gov’t now considered player in struggle for power with individual rights
Barron v. Baltimore (1833)
Takings clause case
Plaintiff wins at trial; SCOTUS reversed
State law controlsà const. doesn’t give cause of action against states
Constitution limits fed. gov’t not states
In theory, case says that crim procedure rights also don’t apply to states
Looked at Art. I §§ 9, 10à limits on fed gov’t and § 10 limits states specifically
Congress knows how to do this when it wants toà need express language
Blyew v. US (1871)
13th Amend banned slavery
Attempt by white man to slaughter entire Black family
KY rule of evidence passed in 1860à slaves, Indians, and free persons cant testify against Whites
Q: If Fed Ct has jurisdiction
Fed Civil Rights Statuteà one included right to give evidence could not be limited against persons of color
Another provision was removal for “cause affecting person”
Criminal D and Gov’t are parties to suit
SCOTUSà only parties are affected by the case
Is that what Congress intended? Would seem not
Dissentà 13th Am
ational citizenship
Only the few rights actually created by Constitution were enforceable against the states by privileges and immunities clause
Congress doesn’t have enforcement power because rights are not discussed in 14th Amend
No jurisdiction for Cts to hear claims of violations of individual rights by States
Post WWI, SCOTUS began pushing back
Moore, Dempsey, and Powell sent messages to State/local gov’ts
Powellà established analytical framework that evidence a right is fundamental in nature if it is in the Constitution
Can be narrowed to factual circumstances
Right to Counsel—Sixth Amendment
Framework:
Is the offense one to which right to counsel applies? (2 views)
Asgersinger v. Hamlin (1972)à If conviction could lead to any confinement at all, then D entitled to attorney
A D entitled to representation before being sentenced to actual imprisonmentà Scott v. Illinois (1979)
Did the right to appointed counsel attach?
Attaches at the first judicial proceeding where a D learns of the charges against him and is subject to restraints on his liberty
Doesn’t attach during pre-indictment proceedings
After attachment, did the D have a right to having an attorney present?
D has right to have an attorney present at any critical stage in the proceedings
On Appeal?
Direct? Yes
Discretionary?
If after direct? No
If no direct? Yes
Was counsel’s representation effective?
If situation was one in which virtually no representation?
Gideon/Powell analysis
Need not show prejudice
If client had representation
Strickland analysis
Performance
Prejudice
D must show BOTH
Was the consequence direct or collateral?
Ineffective assistance only applies to Direct
Was there a conflict of interest with representation?
When brought to court’s attention
Ex anteà reversal automatic
Ex postà D must prove
Actual conflict
Conflict affected counsel’s performance
Right to proceed pro se
Intro—Pre-Gideon
Right to appointed counsel in Fed Ct required by the 6thà Johnson v. Zerbst (1938)
Case specific analysis for if DP violated by not appointing counsel
Betts v. Brady (1942)à Factors:
Complication of the case
Extent D capable of defending self
Severity of the offense, etc.
