Criminal Procedure
Potuto
Fall 2014
Overview of the criminal Justice system (3-22)
Federalism and Criminal Prosecutions (25-27; 34-39)
· Supreme court has the authority to tell states what to do if it is stating a constitutional minimal requirement
The 6th Amendment Right to Counsel
· “In all criminal prosecutions, the accused shall enjoy the right… to have the assistance of counsel for his defense.”
· The right to counsel as applied to the states
o Gideon v. Wainright
§ 6th amendment right to counsel applies to the states, not just the federal govt.
· Who has a 6th amendment right to appointed counsel
o Argersinger v. Hamlin
§ Right to counsel applies to any defendant who will be incarcerated
· Felony or misdemeanor with jail time
o 6th amendment only requires that no indigent criminal defendant be sentenced to a term of imprisonment unless that state has afforded him the right to assistance of counsel (Scott v. Illinois)
§ no jail=no right
· Counsel of defendant’s choosing
o Generally speaking, you can hire any lawyer you can afford
§ Exceptions
· Has to be a lawyer licensed to practice in that state
· Cannot hire a lawyer with a conflict of interest
o May not be able to be waived
· Right to a lawyer does not overrule efficiency
o Can’t hire a lawyer who isn’t available for a year
o Denial of a qualified lawyer to conduct the defense is automatically reversible (US v. Gonzalez-Lopez)
§ Do not have to demonstrate that denial of counsel likely affected the oucome
· 6th amendment Attachment
o Right attaches when the prosecution is commenced
§ A criminal defendants initial appearance before a judicial officer, where he learns the charge against him, marks the start of the adversary judicial proceedings (Rothgery)
§ Usually when a defendant first goes in front of a magistrate
o Attachment does not mean that the defendant is necessarily entitled to a lawyers assistance at that very moment
§ Counsel must be appointed within a reasonable time after attachment
o Once the right is attached, we must ask is the defendant entitled to have an attorney be present
§ Critical Stage determines if a lawyer must be present
· Right to counsel has always been limited to trial like confrontations between prosecuting authorities in the accused where the lawyer acts as a spokesman for or advisor to be accused
· Found to be critical stages
o Trial
o Motion to suppress
o Certain arraignments and preliminary hearings
o Lineups or showups
· Found NOT to be critical stages
o Photographic lineups
o Probable cause hearings
· When does 6th amendment right to a lawyer end?
o After the 1st appeal as of right (Ross v. Moffitt)
§ Not to say that a state cant provide one, they just don’t have to
§ Rationale: After first appeal as of right, if defendant wants to seek discretionary review in another appellate court, he will have at the very least
· Transcript and record of trial proceeding
· A brief on his behalf in appellate court setting forth his claims of error
· In many cases, an opinon by the appellate court disposing of his case
§ These materials, supplemented by any submission made pro se, would appear to provide SC with adequate basis on which to base its decision to grant or deny review
· The Pro se defendant
o Constitutional waiver standard
§ Knowingly and voluntarily relinquishment of a known right
o As part of that waiver, defendant should be made aware of the dangers and disadvantages of self representation, such as:
§ Dealing with rules of procedure and evidence
§ Subtleties of voir dire
§ Effective examination and cross of witnesses
§ Objection to improper questions
§ Etc.
o Lower standard if it occurs earlier in process
§ Miranda warnings may suffice
· Right to affective assistance of counsel
o For all cases where there is possible imprisonment
o Right extends from beginning to end of trial process
o Due process Standard
§ Farce and mockery
· Assistance had to do something so outrageous that it made a farce and mockery of the system
o 6th amendment standard
§ Objective standard of reasonableness (Stickland v. Washington)
·
Process- 5th and 14th amendments
§ Protects against involuntary confessions
o Confessions that were product of coercion by the police
§ Coerced confessions are always per se illegal/inadmissible at trial
· Types of coerced confessions
o Torture
o Mental coercison
§ Extreme psychological pressure
§ To decide if mental coercion is involuntary…
· Look to facts to determin if will is overborne
· State actor must “cross the line
o Something that shocks the conscious of the court
· Torture may produce a reliable confession that later proves to be true, but due process want to prevent the police from practicing these coercive techniques
· Must apply a Totality of the Circumstances test
o Due Process analysis considers the “totality of the circumstances” in measuring any physical or mental coercion experienced by the arrestee; relevant factors include the character and life experiences of the arrestee that create special vulnerability to coercion, the conduct of the police, and the surrounding circumstances of the interrogation.
5th amendment and Miranda
· “no person shall be subject to self incrimination”
· When a suspect is in custody and being questioned, his confession is only admissible against him if he has received his Miranda warnings
· Created to combat the uneven playing field of police dominated environments
· Miranda v. Arizona
o Miranda triggers
§ Custody
· Actual arrest
· Deprivation of freedom of movement in a significant way
o Would reasonable person feel free to leave
§ Interrogation
· Questioning
· Functional equivalent of questioning
o When officer should have known that the defendant could incriminate himself
