Criminal Procedure Outline

EXAM OUTLINE – Criminal Procedure

Intro to Criminal Justice: Systemic Overview and Community Perspectives
I. Views of Police Officers:
a. Gladwell – would think form bell curve but actually hockey stick (few commit all brutalities)
b. Kelley – police are systemic, racist and colonizing force
i. Remedy – community policing
c. Packer – contexts in which police can be problematic, but for most part, aren’t
d. Skolnick & Bayley – police are “thin blue line” dividing criminals from rest
e. Thomas – police are community caretakers
II. Idea of Punishmentà
a. History – shift away from rehab in 70s to purely law and order model
III. Why INCARCERATION is UP:
a. Sentencing
i. War on drugs – Rockefeller drugs laws à sentencing (mandatory minimums)
ii. Truth in Sentencing – if convicted, serve what you receive à in SC, nonviolent offense, serve 25 – 66% of sentence; violent – 85%
iii. 3 strikes rule
b. Case load increases
IV. Ways Cases Get Started (Flowchart on p.7)
a. Victims; Police; OR Grand Jury
V. Plea Bargaining
a. Legislature’s defense – can look “tough on crime” b/c know criminals won’t have to served long terms
b. Judge’s defense – clears docket
i. Critique – transfer of power from judges to prosecutors
c. Prosecutor’s defense – get power; clears docket
d. Defense Atty’s defense – disincentive for trial; better for client; less work
e. Public’s View – Opaque (it’s too secret); random
f. Horizontal v. Vertical
i. Vertical – reduces charges
ii. Horizontal – e.g. has 3 charges; drop one and let him plead guilty to other 2
g. Charge v. Sentencing Bargain
i. Charge – reduce charge and see what judge will give you
ii. Sentencing Bargain – D pleas guilty and prosecutor will agree to lighter sentence – types:
1. Negotiated – negotiated beforehand to see if judge will allow
2. Recommended – prosecutor tells judge he recommends lighter sentence
3. Capped – prosecutor recommends max sentence
4. No Opposition Sentence – unique to SC; “I’m not opposed to 10-yr sentence”

DUE PROCESS

I. Constitution –
a. 5th AM – federal gvt
b. 14th AM – state gvt
II. Various Models of Due Process
a. Rule of Law – doesn’t really matter what rules are, only that they are applied consistently
b. Bill of Rights – states should apply bill of rights (4th, 5th, 6th, 8th AMs)
c. Fundamental Fairness – is procedure fundamentally fair – more discretion here
d. Accuracy – does this produce result that guilty gets convicted and innocent gets acquitted?
III. Hurtado v. California
a. Rule – Informations, as opposed to grand jury proceedings, are OK (Rule of Law model)
b. Notes
i. Information – magistrate level judge hears series of testimony elicited by prosecutor; D can X-examine and judge decides on PC
ii. Grand Jury Indictment – Grand jury right has not been incorporated into State due process (while other rights in bill of rights have)
IV. Incorporation
a. Duncan v. Louisiana (incorporated r to jury trial to against states)
i. Rule – right to counsel extends only to those charged with non-petty offenses punishable by more than 6 months imprisonment
V. Residual Due Process Clause
a. Medina – must be competent to withstand trial

RIGHT TO COUNSEL
I. Constitutional Requirements
a. Right at TRIAL
i. Gideon v Wainright à in all felony cases, you are entitled to counsel, even if indigent (fundamental rt)
ii. Scope on Gideon right to Counsel
1. Argersinger v. Hamlinà no person shall be imprisoned for ANY offense unless he was represented by counsel at trial, absent knowing and intelligent waiver
2. Scott – extends Argersinger to indigent Ds
3. Limit on Argersingerà Nichols: uncounseled convictions could be used to enhance sentences for subsequent crimes
iii. Alabama v. Shelton àa suspended sentence may NOT end up in actual deprivation of person’s liberty if D not accorded counsel at trial
iv. Special Circumstances Rule– Powell àin sp circ, state is req’d to provide counsel
1. Spec Circ now defined à all capital cases w/ charges
v. Post – Gideon Rules:
1. Entitled to counsel in almost all cases at trial, but Ct hasn’t said so in misdemeanor context BUT rt maybe triggered if punishment is huge fine (deprivation of liberty?)
b. APPEAL (and other forms of Assistance)
i. Griffin v. Illinois àcan’t deny free transcripts to indigents if needed to appeal
ii. Douglas v. California àindigents entitled to counsel on 1st App as of Right
1. Provided an equality principle extended in series of cases
iii. Equality Principle v. Fundamental Fairness –
1. Ross v. Moffit àno reqt of counsel on discretionary review appeals
2. Due Process (fairness) – const, state not reqd to provide app at all
a. On app, as in 1st of rt, doesn’t need atty to protect from stripping of presumption of innocence but to upset finding of guilt
3. Equal Protection – 14th AM does not req absolute equality or equal adv
iv. Reason for Diff btw Counsel Rights:
1. Appeal / Review – review of procedural error
2. Trial – guilt/innocence error
v. Entitled to right to access competent psychiatrist (Ake case)
c. CRITICAL STAGES of Proceeding
II. Effective Assistance of Counsel
a. Meaning of Effective Assistance (challenged as Post Conviction Relief)
i. “Pride and Prejudice” Test (Strickland) – 2 prongs:
1. Was performance objectively reasonable?
a. Counsel decisions have to be strategic (i.e. w/ resources and energy)
b. Arguments: individual rt or allocation or resources right?
2. Was D prejudiced by defective counsel?
ii. Marshall’s Dissent:
1. (1) What does it mean to be reasonable?; (2) has Fundamental Fariness View and majority has Accuracy View
iii. Some cases, don’t have to analyze prejudice stand:
1. D entitled to counsel but doesn’t have it; actual conflict of interest of atty; state’s evid isn’t subjected to adversarial proceeding
b. Multipl