Criminal Procedure Outline

CRIMINAL PROCEDURE
1) 2 Models of Criminal Procedure
a) Due Process Model (Left, liberal)
i) Protect rights of defendants (Warren Court)
ii) Soft on Crime
b) Crime Control Model (Right, Conservative)
i) Protect the rights of society (Burger and Rehnquist)
ii) Protect public from evils of crime
iii) Give more power to police to enforce the law (hardliners)

CHAPTER 4: THE RIGHT TO APPOINTED COUNSEL

1) Indigent’s right to counsel as applied to the states
a) *Betts v. Brady
i) Applying the fundamental fairness test (Due process), the court held an indigent is not entitled to counsel (6th amendment) in state cases
ii) Fundamental fairness test (Due Process)– Special Circumstances Test – – If under special circumstances it appears defendant is being treated unfairly, must appoint counsel (special circumstances test)
(1) After applying these tests, the court finds defendant not entitled to atty. . . defendant had some understanding of criminal justice system due to prior run- ins with the law
(2) No special circumstances, distinguished from Powell
(a) Powell case- young black men, not given time or opportunity to secure counsel. On trial for raping a white woman, capital case
(i) State statute required counsel for capital cases, yet counsel was denied. Supreme Court held this was not fundamentally fair as there were special circumstances
(b) Betts not a capital case (robbery) . . . no special circumstances like Powell ordinary intelligence, experience. Betts raised alibi defense, Court said this was a matter of fact simple and didn’t require lawyer
(i) raised an alibi defense. . . cannot conclude the only defense was an alibi (although this was what the court said) an atty may have found many other defenses
(ii) distinguished Powell, no special circumstances
iii) Underlying principle- state’s rights, local rules. . . state sovereignty, federalism
(1) Don’t want to impose federal court power on the states, this is not talked about in the case
iv) Distinguish right to retain versus right to have appointed counsel
(1) What values are being offended??
(2) Freedom or autonomy
(a) if not able to retain counsel of choice, this is not an issue in Betts because defendant doesn’t have money to obtain counsel
(3) Fairness
(a) Betts the court seems to focus on fairness, although they found fairness didn’t require counsel in this case
(4) Constitution doesn’t say anything about retaining counsel, fairness or autonomy
b) *Gideon v. Wainright
i) Overruled Betts and applied the 6th amendment to the states (14th amendment) in felony cases. Relying on Powell
ii) Fundamental fairness test
c) *Argersinger v. Hamlin
i) Right to counsel for indigent defendant’s facing jail time
ii) State law in this case distinguished petty from non- petty (misdemeanors), the court found misdemeanors could still be serious offense if conviction results in jail time
iii) Thus, Deprivation of liberty, fairness and due process require representation by counsel
d) *Scott v. Illinois
i) True test for appointment of counsel: not possibility of jail time, but rather if jail time is actually imposed
(1) Essentially, this case said if counsel isn’t appointed, defendant can’t be sentenced to jail
ii) Problem: the judge now must make a determination early on whether or not to appoint an atty even without knowing what the punishment will be. . . so the judge essentially must decide what punishment when determining whether to appoint counsel
(1) Consequence – if you don’t appoint counsel, cannot send to prison or else a violation of the 6th amendment
2) Indigent’s rights on appeal
a) *Griffin v. Illinois-
i) A state must provide a free transcript of the trial proceedings when submission of a transcript is a prerequisite to appeal for indigent defendants.
ii) “there can be no equal justice where the kind of trial a man gets depends on the money he has” The Griffin Principle
iii) Supreme Court held due process and equal protection require all indigent defendants be furnished with a transcript, at least where allegations of manifest error are not denied.
b) * Douglas v. California
i) Griffin principle of equal protection requires counsel be appointed to assist indigent defendants in preparing the first appeal from a conviction, at least where this first appeal is available as a matter of right to every convicted defendant.
ii) 6th amendment did not apply because this was not a prosecution it was an appeal
c) *Ross v. Moffitt
i) An indigent does not have a right to appointed counsel on his application for discretionary review by the state supreme court or on his petition for certiorari to the US Supreme Court.
(1) Intermediate review as a matter of right
(2) State or US Supreme court review is discretionary
ii) *Reasoning. . . Rehnquist, discretionary appeals are accepted or rejected based on the importance of the issue, not the defendant’s guilt or innocence