THE CRIMINAL PROCESS/Intro
I. Failures
A. Powell vs. Alabama
1. Holding- in a capital case where the D is unable to employ counsel and is incapable of adequate defenses, due process requires that the effective counsel be appointed for him
2. Dissent- if any lack of preparation opportunity, then trial counsel would have applied for a postponement which wasn’t done here
B. Incorporation
1. Bill of Rights- used to temper the power of the federal government. Used to protect the states from the federal govt. The first 10 amendments
2. Baron v. Baltimore- none of the bill of rights guarantees binds the states
3. Hurtado- SCOTUS found that 14th said that the bill of rights does in some circumstances limit the state’s rights against the people
4. SCOTUS in 1184 acknowledged that 14th due process applied to state criminal process though the court held that the right to a grand jury indictment is not part of due process
5. Twining- SCOTUS held that due process did not prohibit an instruction to the jury that it could draw a negative inference from the defendant’s failure to testify
C. Duncan vs. Louisiana
1. Issue- is the right to trial by jury a fundamental right?
2. Differing opinions in this case because there was no settled determination of what was ‘fundamental’
3. Harlan Dissent- due process only requires that a criminal trial be fundamentally fair and trial by jury is not the only way to do this. The test should be- was the trial fundamentally fair? If not, then no violation of due process
4. Justice Black- believes in “total incorporation”, the point of the 14th is just to say everything in the bill of rights applies to the states
5. Harlan- “fundamental rights approach” the due process clause doesn’t specifically incorporate any provisions of the bill of rights, but states should just honor certain provisions as being fundamental in the interest of justice. Could be broader or narrower than total incorporation.
6. Douglas- “total incorporation +”, 14th applies to the states + anything that is fundamental
7. Total incorporation is dead, court tries to do Harlan now
8. Court now- case by case and issue by issue to see if the right is fundamental. When a right is fundamental then that right is applied to the states just as it would be to the federal government
9. Keep in mind that state law can be more protective than federal law. Federal law is just the minimum.
D. Norms
1. Reliability
2. Accuracy
3. Fairness
4. Legitimacy
5. Limiting government
6. Efficiency
E. Rights that Have Been Incorporated
1. Bar against DJC- 5
2. Privilege against forced self incrimination – 5
3. Right to jury trial-6
4. Right to public trial -6
5. Right to speedy trial -6
6. Right to confront witnesses-6
7. Right to compulsory process to obtain witnesses-6
8. Right to the assistance of attorney in felony cases-6
9. Right to assistance of an attorney in misdemeanor cases in which a prison term is imposed- 6
F. Rights that have NOT been Incorporated
1. Right to indictment by grand jury-5
2. Prohibition against excessive bail-8
PRETRIAL RELEASE
A. Intro
1. Roughly 6 months from arrest to plea, and one year from arrest to trial. Under federal speed act- all should go to trial within 120 days
2. First appearance is the appearance before a judicial officer- usually a magistrate or lower court judge.
a. Must occur “without unnecessary delay” usually 24 hrs
b. At this hearing, decide whether to release and under what conditions
3. Competing interests in trying to figure out how to set up pretrial release system:
a. Could have them be free- liberty interest
b. A
circumstances of the offense charged
b. the accused family ties
c. the accused employment
d. accused financial resources
e. the length of the accused residence in the community
f. any record of convictions
g. the accused record of appearance at court proceedings or of flight to avoid prosecution
h. any other available information relevant to whether the accused is likely to appear at court proceedings
12.If the magistrate concludes that accused cant be released on own recognizance, the magistrate may impose such conditions as are reasonably calculated to insure the presence of the accused at proceedings leading up to and including trial
a. Must be the least restrictive condition
13. Pretrial release automatically includes these conditions:
a. that the accused appear before the court and the time and place designated
b. that the accused not depart from the jurisdiction without permission of the court
c. that the accused shall keep the peace and be of good behavior until final disposition of the case
14. Federal BRA of 1984 authorized the magistrate to consider the extent to which the D’s release “will endanger the safety of any other person on the community”
a. Raises the fundamental conflict between those who argue that society must exercise power to detain potentially dangerous individuals and those who maintain that it is wrong to jail persons on the basis of what society fears they will in the future rather than what they have already done in the past (see Salerno which upheld this amendment!)
