Tomorrow set aside some time after class.
1648 Stratford.
4 matters of introduction:
Intro vocabulary – steps in the Criminal Trial Process.
– Need a crime that has been committed or suspected (i.e What we did with Stacy).
– Then it has to be observed or reported – most cases it is the agency of the government (police). Organized police occurred after the constitution. Amendments were written before organized police.
– Agents may question people, use surveillance. Some is regulated by the constitution and some is not.
– Then, if the police say they committed the crime, police can then arrest (take to the police station – place in custody and charge).
Once Arrest, the constitution comes into play – search and seizures and e.t.c
– If arrested, then the State has to decide whether to proceed with charges. Goes to the prosecutor who decides upon charges.
– If they decide to charge the pro files a complaint. Then individual brought to court for an initial appeareance, bail set and informed of right to counsel.
Then the adversary system starts
– If mis then go to disposition
– But, there is additional level of screening for significant felonies
1. Preliminary hearing – State brings witnesses and establishes probable cause to see if they need to be held for further proceedings (KANSAS)
2. If they find, pro files an information – this is formal charge doc that the D pleads to in a felony case.
Number of States – alternative system. Prosecution via grand jury or indictment. 24 people meet in secret. Prosecutor is the legal advisor.
1. If they conclude that a crime has been committed (probable cause exists). Then given an indictment. USA is a Grand Jury system. Usually always exists. State constitution commands them to do it. Fifth amendment demands it in the federal sphere. However, States decide whether to adopt it.
2. After indictment – they are arraigned (charge is read, brought before a judge – plea then entered)
3. If decide to go to trial – some process exits before trial after arraignment
4. Motion to suppress is one of these pre-trial issues. File a motion saying evidence should be excluded.
5. Then trial exists.
6. Then verdict
7. Then appeal in all 50 states.
8. In federal system, the individual has an appeal as a RIGHT.
Additional intro:
1. Why regulate what goes on in the criminal process in ways different from criminal/civil?
– Sanction is jail/execution. No civil law violation has that as a remedy.
– Standard of proof.
– Condemnation.
In Criminal it is the State that is a party:
– Police is an investigative arm.
– Right to exercise force.
– State can investigate, use force, incarcerate before trial, sanction then punish.
Consequences are horrible if unregulated:
– Restraints are placed upon these powers.
– When police can enter dwellings.
How do you have these rules, who writes them and how are they written:
– Legislature by statute (passive law)
– Common Law – interpreting the statute.
– International convention (Treaty).
– Constitution – Not subject to change easily. However is interpreted in light of each generation.
– Administrative Rules – tell the executive to write rules to govern police procedures.
In the US we are dealing with a decentralized legal system
– 95% of criminal litigation is brought by state prosecutors and prosecuted in the States.
– Only 5% brought by the US for crimes against the USA.
– Thus in addition to how do we get the constituion, who’s constitution and whos court. US constitution
TODAY
1. Why and how did we use the Constitution to limit what the police can do?
2. Have entrenched provisions.
3. Thus in addition to how do we get the constitution, who’s constitution and who’s court. US constitution, then what does it say about States?
What to get out of this case:
1. Argument of Constitution
2. And example that an entrenched provision is necessary. If we left it to the States nothing would happen.
POWELL V. ALABAMA
id in preparing the trial.
5. Defendants were accorded no right to counsel in any substantial sense. Although criminal offenses should be dispensed with fairly quickly, this should not be done at the cost of having sufficient time to advise with counsel and prepare a defense.
14th amendment question
What does a hearing include?
– the right to the aid of counsel when desired.
– Refusal of counsel is the denial of a hearing
– Why? because counsel is the arbiter between the client and the court and a hearing, even for an educated man let alone a illiterate one is incomplete without counsel.
– The denial of a hearing is a denial of due process.
What does a denial of due process include (contrary to the 14th)?
– Failure of the trail court to afford reasonable time to secure counsel.
– Failure to appoint counsel.
Yes they were. They were from out of state. From the time of arraignment to until the beginning of the trail (the most important part where thoroughgoing investigation and preparation were extremely important) the defendants did not have counsel.
Had a lawyer on the morning of the trail say that he would like to represent the defendant’s.
– He had no time to prepare
– He knew nothing about the jurisdiction
No opportunity to investigate the facts
No attempt was made to investigate the facts.
BETTS V.BRADY (1942)
(Did not decide whether or not the 6th amendment was enshrined by the due process under the 14th)
What is the general problem of this case?
1. Problem is that the judge cannot know the difficulty of the case
2. Felony case – cannot be fair without a lawyer.
