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Criminal Adjudication
Wayne State University Law School
Henning, Peter J.

Criminal Procedure: Adjudication   
Fall 2017
Criminal Procedure: Adjudication
Practice Tips:
Always remember that as a defense attorney, you must ask for a judgment of acquittal. You must ask of one at every step that is possible because if you do not, you may lose rights for your client.
Thinking Process:
In this course, we are asking “Was there an error in the proceeding (actual trial itself or before the trial) that resulted in a flawed conviction that should be overturned?”
Questions you need to ask:
(1) What was the error? (Most of what we are dealing with is constitutional, but some is statutory or rule based)
(2) When did it happen? (Pre-trial, trial, sentencing)
(3) Did defense counsel (could be prosecutor in certain instances but mostly defense) object?
If so, when?
If it was raised in the trial court, what did the trial court do?
(4) Who bears the burden of demonstrating there was an error and/or its impact on the proceeding (prejudice)?  Whether or not you objected is going to affect who bears the burden.
Types of Error
The Role of Appellate Review
The Federal Harmless Error Statute (28 U.S.C. §391):
Adopted in 1919; provided the model for many of the states eventually adopted by every state;
required a deferral appellate court to give judgment alter an examination of the entire record before the court, without regard to technical errors, defects, or exceptions which would not affect the substantial rights of the parties
This brought many changes. We started having professional full-time prosecutors and defense attorneys (before private attorneys were specifically hired to prosecute certain cases).
The Federal Harmless Error Statute is now Rules 51 and 52.
Rule 51- Asserting Error
Rule 51(b): “A party may preserve a claim of error by informing the court- when the court ruling or order is made or sought- of the action the party wishes the court to take, or the part’s objection to the court’s action and the grounds for that objection. If a party does not have an opportunity to object to a ruling or order, the absence of an objection does not later prejudice that party.”
The objection is important because of the raise-or-waive requirement:
The “Raise or Waive” (forfeiture) Doctrine[1]:  A party (usually a defendant) must make a TIMELY objection to a judicial decision or order, or other flaw in the prosecution (improper joinder, suppression of evidence- Rule 12(b)), or the claim is WAIVED.
NOTE: This is more of a forfeiture or procedural default analysis than true waiver because it is a failure to act that triggers the loss of the claim, which may be inadvertent.
If counsel makes a mistake by not raising an objection (non-strategic), that may form the basis for a 6th Amendment ineffective assistance of counsel claim.
If it is a true waiver by counsel, then a strategic decision that most likely cannot be challenged unless only the defendant can waive the right.
Claims that cannot be forfeited and raised at any point, including an appeal (unwaivable or non-forfeitable claims):
Double Jeopardy
Speech or Debate Clause
Jurisdictional Defects (Rule 12(b))
Rule 52
If you did object and met the Rule 51 requirement or did not have the opportunity to object, the error will be classified into one of the following errors:
(a) Harmless Error[2]  Rule 52(a)
“Any error, defect, irregularity, or variance that does not affect substantial rights must be disregarded.” ß This is an objected error!
(b) Plain Error
“A plain error that affects substantial rights may be considered even though it was not brought to t the court’s attention.” ß This is an unobjected error!
Is there error? (not waived, only forfeited)
Is it plain? “clear or obvious”
Did if affect substantial rights? Defendant’s burden to establish
Did it result in a miscarriage of justice? Appellate court discretion to correct
The spot you never want to be; it is awfully tough to win under this;
Plain error applies to ALL types of unobjected errors (constitutional and non-constitutional) so long as there was not an affirmative waiver.
Rule 52(a) “Harmless Error”
Non-Constitutional Error
A court must consider what effect the error had or reasonably may be taken to have had upon the jury’s decision;
a conviction should not be overturned unless, after examining the record as a whole, a court concludes that the error may have had a substantial influence on the outcome of the case.
A court is not supposed to ask whether in its view the finding of guilt was clearly correct despite the error.
Kotteakos v. U.S.*substantial influence and reverse*:
“If, when all is said and done, the conviction is sure that the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand,
except perhaps where the departure is from a constitutional norm or a specific command of Congress.
But if one cannot say, with fair assurance, after pondering all that he judgment was not substantially swayed by the error, it is impossible to conclude that substantial rights were not affected. The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error.
It is, rather, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.”
The burden is on the government or party benefiting from the decision/ruling. The stronger the prosecution’s evidence, the harder it is to win Kotteakos.
Bank of Nova Scotia:
Did the error have a substantial and injurious effect or influence in determining the jury’s verdict? Not a right result analysis, although it may well be.
Constitutional Error
Chapman v. California (1967)*constitutional erroràthe harmless error rule does not apply to jury instruction that the juro to inferring the worst from petitioners’ refusal to testify”*
The petitioners were tried and convicted of robbery, kidnapping, and murder of a bartender.
At trial, the prosecution referenced the petitioners’ refusal to testify multiple times.
The trial judge also instructed the jury, as state law allowed, that they may draw adverse inferences from the lack of testimony.
That state law was later overturned after trial, but the petitioners’ convictions were affirmed by the CA Supreme Court due to the references being deem

her one, but not fire him/her.
The Development of the Right to Counsel
Powell v. Alabama :
A group of young African American teenagers were riding the rails with some young white women. During this period, white women and black men were not supposed to be around each other. Therefore, the women lied and said they were raped. All 9 teens were tried and convicted- 7 of them were sentenced to death.
They said that wanted lawyers but the Court said no.
The case then went to the Supreme Court, which held that not providing counsel in a state capital case violated Due Process.
Why did it not fall under the 6th Amendment? In 1932, the 6th Amendment did not apply to the states.
“There is a fact-specific holding requiring the appointment of counsel in state capital case based on Due Process.”
Johnson v. Zerbst **:
During this time, a majority of criminal cases were state cases.
This case, however, involved a federal prosecution.
The Supreme Court said the 6th Amendment did apply in federal cases. Unless you waive in a federal prosecution, you have the right to appointed counsel.
“The 6th Amendment withholds from federal courts, in all criminal proceedings, the power and authority to deprive an accused of his life or liberty unless he has or waives the assistance of counsel.”
Betts v. Brady (1942)
Betts was indicted for robbery in circuit court in Maryland. He was indigent and unable to retain an attorney.
When he requested the Court appoint one for him, the Court said it was not the practice of the Court to appoint counsel for indigent defendants, except in prosecutions for murder and rape.
Whether the 14th Amendment demands that in every criminal case, a state must furnish counsel to an indigent defendant. NO
The 14th Amendment does not embody an inexorable command that any indigent defendant in state court is entitled to a court appointed/state compensated counsel.
A couple of subsequent cases infiltrated through after Betts:
Bute v. Illinois (1948): “There is a “flat” requirement of counsel in a capital case.”
Chandler v. Fretagg (1954): “There is always a qualified right to counsel of choice (retained counsel).” The Court held that if a defendant has the right to counsel, he also has the right to pick his own lawyer. The state cannot restrict this.
Hamilton v. Alabama (1961): “There is a right to appointed counsel in capital cases at the arraignment.”
[1] You can make the objections to a judicial decision/judicial order/othr flaws in the prosecution including improper joinder, suppression of evidence.
[2] Most violations.