CRIMINAL PROCEDURE: JAIL TO POST-CONVICTION REVIEW
LARSEN (WINTER 2008)
I. INCORPORATION AND DUE PROCESS
Four interpretations of due process:
As rule of law
Constrain arbitrariness, misuse of government power for private ends, reliance on illegitimate criteria.
Wide discretion itself invites abuse
As the Bill of Rights
Incorporation- not likely intended by the Framers.
As accuracy
Want liability based on guilt. Ex: race-related determinations
As fundamental fairness
Some kinds of government conduct are outrageous and some procedures are essential.
Catch phrases include “ordered liberty,” “so rooted in the traditions and conscience of our people as to be ranked as fundamental,” and “shocks the conscience.”
Hurtado v. California, 1884- 5th A grand jury right does not apply against states (formalism)
Law at issue: P filed on information. Magistrate determined probable cause. No grand jury.
Holding: Absence of grand jury indictment for a serious crime does not violate the due process clause of the 14th amendment. In the 5th amendment, the phrase due process does not apply to grand jury. If it had, it would have been more expressly stated.
Deference to state for criminal adjudication. Things have changed as people realized that many states are not doing a good job i.e. the deeply racist South
MATTHEWS (and due process) requires:
Notice—must be generally available to the public
Hearing—opportunity to contest the charges against you.
Decided by text (lists DP and grand jury- don’t be repetitive) and history (practices at time of Magna Carta should not constrain)
Duncan v. Louisiana, 1968- 6th A jury trial guarantee incorporated- fundamental fairness
Law at issue: LA only required jury trial for crimes that could be punished by hard labor.
Black D convicted of battery for touching a white male.
Holding: The 14th amendment guarantees a right of jury trial in all criminal cases which-were they to be tried in a federal court-would come within the 6th amendment’s guarantee.
MAJORITY (WHITE) Article III §2 safeguards against prosecutor or judge, goes along with general fear of unchecked power. Hence, apply to states.
BLACK thinks PI clause indicates BOR applies to all the states (despite Slaughterhouse cases)
Harlan’s view gives too much judicial discretion. Wants a rule.
Do you think the BOR are accuracy enhancing?
DISSENT (HARLAN II) jury is not essential to scheme of ordered liberty. Fundamental fairness is guiding principle for selective incorp.
Don’t discourage states from experimenting. Can imagine a fair system without juries.
Juries can cause undue delay. Judges are no longer tyrants.
Can waive jury right- shows it’s not that fundamental
Issues raised:
Race started making due process more expansive.
Accuracy concern—12 heads are better than one.
Real issue might be prosecutorial discretion. Shouldn’t have been charged.
Independent value: Symbolism of being judged by the community, not at the whim of the government.
Even constitutionalized rules cannot fix all the underlying problems in the criminal justice system.
Medina v. California- free standing DP is limited; states have significant freedom
Holding: BOP of showing that D is not competent to stand trial by preponderance of the evidence falls on D, not on gov.
Due process according to Matthews v. Eldridge:
Private interest affected by official action
Risk of an erroneous deprivation through procedures used
Government’s interest.
Due process according to Patterson v. New York, criminal cases:
Narrower inquiry because crime goes to the states and they get to regulate the procedures under which their laws are carried out, including burdens.
Common law tradition for crime.
Court decides that Matthews test only applies to civil cases:
BOR does the cost benefit analysis for criminal procedure, don’t need this test.
If it is not in the BOR do not interfere with states’ rights to regulate criminal laws unless it is fundamental.
“Hurtado plus”- state freedom in absence of BOR incorporated right. Free-standing 14th A DP is limited.
Changes will only affect narrow class where evidence is same strength on both sides. Just about burden shifting.
Gov. will have BOP if rule is about deterring lawless conduct by P and police.
DP does not have to increase chance of favorable result, just give opportunity to demonstrate incompetence.
Concurring (O’Connor/Souter): Should balance the equities to determine whether the state criminal procedures amounted to due process.
Open question: Is incorporation really good for D? Does it limit the scope of D’s rights? If Harlan II had won, would Medina have won?
II. THE RIGHT TO COUNSEL
Amendment VI In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.
A. ORIGINS AND SCOPE OF THE RIGHT TO COUNSEL pp. 80-95
***the main issue concerns this right in a STATE court.
Originally, only minor offenses could be represented by counsel.
Then a right to retain counsel in England to argue matters of fact for treason or misdemeanors.
The Judiciary Act of 1789 said that the government would provide counsel in capital cases. Almost all felonies were capital at that time.
By 1787, most states had granted criminal defendants the right to be represented by a lawyer, but no guarantee of appointed counsel.
Powell v. Alabama (1932)—in a state case, the right to use retained counsel, including reasonable opportunity to obtain, in a capital case.
Fairness required counsel in some cases but not all. Appointed counsel in a capital case, where the D is unable to retain counsel, and is incapable adequately of making his own defense because of ignorance, feeblemindedness, illiteracy, or the like. Right is rooted in the 14th A DP, not 6th A fair hearing.
In Betts- D wanted this to apply to all cases. State argued that it is D specific because it was capital, and case was racially charged.
Johnson v. Zerbst (1938)—sixth amendment guaranteed indigent federal defendants a right to appointed counsel.
Betts v. Brady (1942)p. 81- Need for counsel decided CBC in felony case
· Facts: Indicted for robbery in a state court. Local practice only appointed counsel for rape and murder.
· Holding: Depends on the particular circumstances; no uniform rule. Fundamental fairness and special circumstances.
o Some, not all becauseusing the fundamental fairness approach to due process. Majority of state leg. did not think this was fundamental.
o Concern that it would tax the system too much (Traffic court too?)
· ROBERTS: The 14th does not incorporate all of the specific guarantees of the 6th, but denial of them ma
r is ok. Historical support for limiting the right to trial by jury, counsel may still be required for a fair trial in even petty offense prosecution.
Counsel necessary so that the accused may know what he is doing and is fully aware of the possible sentence and he is treated fairly by the prosecution.
Misdemeanor cases are no less complex.
An issue of fairness where loss of liberty is at stake. Not considering the 6th where loss of liberty is not involved, so this is still justified by the requirements of the 14th.
Sheer numbers of misdemeanor cases, possible that they will be rushed through for efficiency.
Can be tried without an attorney, so long as no imprisonment is imposed. Judge must consider the gravity of the offense and know that no imprisonment may be imposed unless accused is represented by counsel.
POWELL CONCURRENCE: 14th A only requires counsel to ensure fundamental fairness. Because these cases don’t even have prosecuting attorneys all the time, or the possibility of imprisonment is remote, fine is small, or where the evidence of guilt is overwhelming, costs of counsel may out weigh the benefits.
May be extending the right to indigent defendants where even those who can afford counsel wouldn’t hire them.
Now there is a line drawn between the indigent and the barely self-sufficient, for whom counsel would be a luxury as well.
Loss of judicial discretion as to the need for counsel where a jail sentence is possible; must be a similar loss of discretion for other petty offense cases.
Three factor test: complexity of the offense, probable sentence and individual factors (competency, attitude of the community).
Scott v. Illinois, 1979; pp. 90—distinguish Argersinger; counsel only when actual imprisonment- only ask this question for misdemeanors.
Facts: D fined $50, though max penalty was one year in prison.
Holding (Rehnquist): Actual imprisonment is the constitutional line; threat of imprisonment is not enough. 6th and 14th require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of appointed counsel in his defense.
Actual imprisonment is different from mere threat.
Powell, concurring in Argersinger, acknowledges that special circumstances may still necessitate counsel. Maybe this was meant to be a supplement, not a replacement (look past 6th to 14th DP (FF)).
In practice most State C or state statutes dictate when counsel is needed. Federal C does not guarantee though. Medina (only protect the core rights).
If judge chooses not to appoint counsel at the beginning he has already taken imprisonment off the table.
Dissent (Brennan): court is overlooking the fact that even without imprisonment, stigma of being convicted of a crime should be enough to warrant the automatic provision of counsel.
