CRIMINAL PROCEDURE
with host Joan Larsen
A. THE APPLICATION OF THE BILL OF RIGHTS TO THE STATES
Notes on Comprehensive Criminal Procedure, Allen, Hoffman, Livingston, Stuntz
Four interpretations of due process
As rule of law
Meant to constrain arbitrariness, misuse of government power for private ends and unacknowledged reliance on illegitimate criteria.
Wide discretion itself invites abuse; vagueness principle rolled along.
As the Bill of Rights
Incorporation.
Not likely that Framers intended for states to be bound by all of these when drafting the Reconstruction Amendments.
As accuracy
Race-related. Where there was a flawed procedure that tended to lead to conviction and punishment without regard to guilt.
As fundamental fairness
Operates on the premise that 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–formalism
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.
MATTHEWS (and due process) requires:
That a law of general applicability be made with bicameralism and presentment.
Notice—must be generally available to the public
Hearing—opportunity to contest the charges against you.
Duncan v. Louisiana, 1968–fundamental fairness
Held: 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.
Wanted a jury to nullify and evaluate witnesses.
WHITE: Article III§2, safeguards against prosecutor or judge, goes along with general fear of unchecked power. Hence, apply to states.
BLACK thinks that the privileges and immunities clause indicates that the Bill of Rights applies to the states (but Sllaughterhouse killed it)
Harlan’s view perhaps permits too much judicial discretion in deciding what due process means; selective incorporation works as it keeps judges in bounds.
Harlan II, dissenting: doesn’t want to close up the laboratory.
Not essential to the scheme of ordered liberty.
Wants fundamental fairness and allows for the possibility that the delay which shall be caused, the antiquated notion that judges are tyrants, the arbitrariness of selectively incorporating and the fact the fourteenth amendment was not supposed to be that narrow override the need to grant juries to every criminal trial.
Issues raised:
Race started making due process more expansive.
Accuracy concern—12 heads are better than one.
Real issue might be prosecutorial discretion.
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, 1992
**Burden of showing that D is not competent to stand trial falls on D by a preponderance of the evidence, not on government.
Due process according to Matthews v. Eldridge:
Private interest affected by official action
Risk of an erroneous deprivation of interest through procedures used
Government’s interest.
Due process according to Patterson v. New York, a criminal case:
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.
Holding: Burden on D
Main rationale:
Matthews v. Eldridge not for criminal cases, but civil. Bill of Rights already speaks to criminal procedure, so no need for a new standard.
Criminal laws are state laws, and states can regulate them.
Will only affect narrow class where evidence is same strength on both sides.
Due process is not increasing the chances of a favorable result, but rather providing a reasonable opportunity to demonstrate incompetence.
This aspect of criminal procedure does not concern deterring lawless conduct by police and prosecution.
Note: O’Connor and Souter thought it was okay to balance equities in determining whether state criminal procedures amounted to due process.
TAKE AWAY: If the Bill of Rights doesn’t speak to the question, there’s not much for you out of the free-standing due process clause in the 14th.
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 defence.
II. 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.
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.
Were in peril of their lives, racially charged, rooted in the 14th, not the 6th. Fair hearing.
Johnson v. Zerbst (1938)—sixth amendment guaranteed indigent federal defendants a right to appointed counsel.
Betts v. Brady, (1942), SCOTUS;
pp. 81—counsel if special circumstances for FELONY cases
· Facts: Indicted for robbery in a state court. Local practice only appointed counsel for rape and murder. Justice Roberts said that under the circumstances, this man was not denied due process on account of lack of counsel. He had pled guilty to larceny before, he was of average intelligence and 43 years old.
· ROBERTS: The 14th does not incorporate all of the specific guarantees of the 6th, but denial of them may deprive a litigant of due process of law.
· Holding: Depends on the particular circumstances; no uniform rule. Fundamental fairness and special circumstances.
o Some, not all because: Using the fundamental fairness approach to due process. Looked to the majority of state legislatures, which had not deemed this to be a fundamental right.
o Vague concern that it would tax the system too much (Traffic court too?)
§ Basic conclusion: had he seemed incapable, then he should have had a lawyer.
· BLACK, DISSENTING: should be looking to the nature of the offense and the circumstances of his trial and conviction.
o Petitioner was an out of work farmhand with little education. It is anti-democratic and unequal treatment before the law to allow someone whose life and liberty are on the line to be disadvantaged because of poverty.
o Fourteenth should be applicable to the states because:
§ They did it for federal court in Johnson v. Zerbst
§ Giving the court the supervisory powers to gauge need of counsel is too much.
§ Can’t subject innocent men to increased dangers of conviction simply because of their poverty.
In the aftermath of Betts, it was established that:
There was a flat right to counsel in capital cases (Hamilton v. Alabama, 1961)
There was an absolute right to be represented by retained counsel in all stages of the proceeding (Chandler v. Fretag, 1954)
Gideon v. Wainwright, 1963;
pp. 86—counsel for indigent in all felony cases
Holding: BLACK decides that the right to counsel provided for in the 6th amendment is a fundamental right incorporated through 14th
isonment is authorized.
BLACKMUN: thinks the right to counsel in a state criminal case must be afforded whenever the D is prosecuted for a nonpetty offense (that is, one punishable by more than six month’s imprisonment) or whenever the D is actually subjected to a term of imprisonment.
Nichols v. United States, 1994; pp. 93—uncounseled misdemeanor conviction may enhance sentence in a second crime
A previous conviction that was obtained without counsel may still be used in enhancing a later sentence. Didn’t need to use the conviction to enhance; could have just examined the underlying conduct.
The conduct was proven beyond a reasonable doubt in the first trial. Normally to use underlying conduct, prosecution only needs to show that it occurred by preponderance of the evidence (if not actually convicted), so it should be fair.
DISSENT: introduction of a record of conviction carries great weight. Still end up serving more time for previous offense.
Alabama v. Shelton, 2002; pp. 94—no suspended sentence or probation if not represented in the original conviction that serves as a basis for incarceration upon violation of parole..
GINSBURG: Sixth amendment does not permit imposition of a suspended sentence on someone who did not have counsel to represent him for the original conviction.
Ginsburg reasons that if the D broke parole, he would be subject to immediate imprisonment without being able to contest the original judgment of guilt.
Cannot be cured by a retrial if probation revoked; that would be for Alabama’s state legislature to decide as part of state procedure anyway.
SCALIA, DISSENTING: the imposition of a suspended sentence does not deprive a defendant of liberty, so should be permissible.
Complete retrial of the misdemeanor upon D’s request if the sentence was reimposed would cure.
Could induce D to comply with terms of his probation.
II.B. EQUAL PROTECTION
A defendant is not entitled to the assistance of counsel unless:
Adversary judicial proceedings have commenced (accused) and
The encounter is a critical stage of the criminal proceeding.
Whenever the conditions surrounding or inherent in a pre-formal charge confrontation are sufficiently coercive, interrogation or its equivalent may bring the Miranda right to counsel into play (lawyer present for questioning—exception to the normal appointment of counsel before a judicial officer). This is because of the 5th right against self-incrimination.
With Equal Protection: when the classification is poverty, there only has to be rational basis for the distinction. No heightened protection—due process doing all the work.
Hornbook:
Sixth amendment right to appointed counsel applies only to “critical stages” in the criminal prosecution.
There is no need for the assistance of appointed counsel unless the substantial rights of the accused may be affected at the particular proceeding.
Most of the litigation is about pretrial proceeding.
The Supreme Court has held that the accused has the right to the assistance of counsel at a preliminary hearing, at some pretrial identification procedures, and when subjected to police or prosecutor efforts to elicit inculpatory statements.
First appearance before a magistrate and the arraignment before a trial judge may or may not be a critical stage depending upon the state’s treatment of the defendant’s actions at that proceeding.
