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

Criminal Procedure: Adjudication – Fall 2011
Part One: Introduction
Focus of the Course- Overview
1.       What is the alleged error?  What is it that is being complained about? 
2.       At what point in the process did the error take place?  Pre-trial or during trial?
3.       How was the claim of error resolved at the trial court level? 
4.       Was the error objected to by counsel?
5.       Who bears the burden of demonstrating the alleged error, or, if there was an error, who bears the burden of demonstrating its impact? 
I.  Types of Error
History of Appellate Review
·         The Exchequer Rule- A trial error resulting in the improper admission or exclusion of evidence was presumed prejudicial, resulting in reversal of the conviction. 
·         Technical Pleading Rules- In the U.S. in the 19th Century, the prosecution had to meet stylized, highly technical pleading requirements.  The evidence had to match what was in the pleadings.  If there was any variance from the rules or if the indictment didn’t match what was presented at trial, the prosecutor did not prove the charge (error) and the conviction was reversed. 
o   A majority of convictions were reversed at least once.
·         1919 Federal Harmless Error Statute (now FRCrimP 52).
Raise or Waive Requirement- FRCrimP 51(b)
·         (b) A party must 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 to take, or the party’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.  
o   Failure to object results in forfeiture of the claim of error.  Waiver refers to intentional relinquishment or abandonment of a known right.  
o   There is a back door way around waiver- ineffective assistance of counsel.  Other than this, there is no way to re-raise a waived issue.
o   Timing- it should be done at the first available opportunity so that the judge can respond to the object and potentially correct the error.  If the objection would be futile, then the appellate court reviewing the error will treat it as if the lawyer had objected. 
·         Unwaivable (or non-forfeitable) issues- double jeopardy, speech or debate clause, and jurisdictional defects.  These errors can be brought up again later even if not objected to.
Harmless Error- FRCrimP 52
·         (a) Any error, defect, irregularity or variance that does not affect substantial rights must be disregarded.
·         (b) A plain error that affects substantial rights may be considered even if it was not brought to the court’s attention. 
o   If there is no objection, then the “error” is subject to plain error review.  To determine whether there is in fact a plain error, consider the Alano factors:
1.       There has to actually be an error.  Not waived, only forfeited.
2.       The error must be plain, meaning clear or obvious. 
3.       The error affects substantial rights (burden on party that didn’t object). 
4.       Was there a miscarriage of justice (it wasn’t just wrong, it was really wrong)? 
5.       The appellate court has discretion over whether or not to correct the error. 
·         If there is an objection, then the appellate court will analyze whether there was in fact an error.  If there is an error and it was objected to, then the court must determine whether the error was harmless. 
·         The party that gained a benefit from the error (usually the prosecution) bears the burden of establishing harmlessness. 
Kotteakos v. U.S.
·         Once the court has determined that the error is subject to harmless error review, it must identify the proper standard for measuring the impact of the error on the outcome of the proceeding. 
o   Balancing test: how important was the error?
§  If the error did not influence the jury, or had but very slight effect, the verdict and the judgment should stand.
·         Except where the departure is from a constitutional norm (à See Chapman, Constitutional Errors).
§  If it is clear that the judgment was substantially swayed by the error, it is impossible to conclude that substantial rights were not affected.
·         The burden is on the party benefitted by the error to show that the error was either substantial or slight.
O’Neal v. McAninch
·         What weight should be assigned to overwhelming evidence of guilt in determining impact of a trial error?
o   The appellate court must look at whether the error had substantial and injurious effect or influence in determining the jury’s verdict, not whether, despite the error, the jury reached the right result.
Chapman v. California- Constitutional Errors
·         Facts: the prosecutor commented on the defendant’s decision not to testify in accordance with his 5th Amendment rights. 
·         There is a two-step process when the error involves a Constitutional issue:
1.       The court must determine whether the error should be treated as a harmless error or as one requiring automatic reversal. 
2.       If the harmless error rule is applicable, the court must determine whether the error was harmless beyond a reasonable doubt. 
§  The burden of proof is on the government to show that the error was harmless. 
·         Automatic reversal examples-
o   Coerced confessions (Payne v. Arkansas)
o   Denial of the right to counsel (Gideon v. Wainwright)
o   Denial of the right to an impartial judge (Tumey v. Ohio)
Structural Errors
·         All structural error is based in constitutional rights.  These errors relate to the structure of the legal process.
·         It doesn’t matter whether they are constitutional or not—the error took from the defendant the substantive protection of a right that is concerned with the structure of the proceeding. 
o   The remedy is automatic reversal, without any need for a showing of prejudice.
·         The Supreme Court has recognized the following as structural errors:
1.       Complete denial of the right to counsel (Gideon v. Wainwright)
2.       Denial of the right to self-representation (McKaskle v. Wiggins)
3.       Denial of the right to counsel of choice (Gonzales v. U.S.)
4.       Racial discrimination in selection of jury (Vasquez v. Hillary and Batson v. Kentucky)
5.       Denial of a public trial (Waller v. Georgia)
6.       Defective instruction on proof beyond a reasonable doubt (Sullivan v. Louisiana) (not materiality- Neder)
7.       Improper exclusion of a juror in a capital case (Gray v. Mississippi)
8.       Double Jeopardy, speedy trial or speech or debate clause violation
9.       Constitutional violations involving proof of prejudice as an element of the violation
Neder v. U.S.
·         Facts: the ∆ was charged with mail fraud and filing a false tax return.  The jury was not instructed to find that the misstatement (or omission) was material (at the time, it was a question for the court).
o   Gaudin v. U.S. was decided after the trial.  In that case, the U.S. Supreme Court decided that materiality is an element of the case to be decided by the jury. 
·         Issue: whether failure to instruct the jury on an element of the offense can be harmless. 
·         Holding: failure to instruct on an element of the offense does not result in automatic reversal. 
o   Assessments of the harmlessness of an omitted instruction do not differ from assessments of the harmlessness of instructions that erroneously describe an element or that involve an unconstitutional presumption.
o   The conclusion that omission of an element is subject to harmless error analysis is consistent with the holding (if not the entire reasoning) from Sullivan v. Louisiana, which held that a faulty burden of proof instruction required automatic reversal.  The error in Sullivan vitiated all of the jury’s findings.
·         Defendants: argue for structural error- they get automatic reversal.  Prosecution: harmless error.
·         Hypo: the ∆ was charged w/ two crimes, possession of a firearm and use and carrying a firearm.  In its instruction to the jury, the judge combined them into one charge.  Holding: automatic reversal.
Flow Chart
·      Error made
o   Objected to
§  Was it harmless?
·         Did it influence the jury’s verdict or outcome of proceeding? (burden on P to show that it did not)
o   If yes, reversal
o   If no, no reversal
§  Non-Constitutional Harmless error analysis
·         Slight or no effect on the jury’s verdict
o   No reversal
·         Substantial rights affected in that error had a substantial effect on the verdict
o   Reversal
§  Constitutional
·         Can the P show that it was harmless beyond a reasonable doubt?
o   If yes, then still subject to harmless error review
§  If harmless, no reversal
§  If not harmless in that it influenced the verdict, auto reversal
·         If affect a substantial right (not harmless)
o   Reversal
·         Structural (examples above)
o   Not objected to (this analysis only applies when a right is forfeited and not when a right is waived (unless we are dealing with a non-waivable right)
§  Plain?
·         Was there an error?
·         Was it obvious?
·         Can D establish that the error affected a substantial right?
o   Constitutional
§  Can P establish beyond a reasonable doubt that the error was harmless?
·         If no, then auto reversal (unless Neder, where still wouldn’t have made a difference based on evidence)
·         Is there a miscarriage of justice?
Part Two: The Right to Counsel
II.  The Right to Counsel (Chapter 4)
1.  The Right to Appointed Counsel
The Sixth Amendment
·         In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of counsel for his defense.
o   Enjoy- What does it mean to “enjoy” the right? 
§  Remedy: sometimes the remedy for denial of the right to enjoy the assistance of counsel is automatic reversal, while other times it is just a limitation. 
o   Assistance- it is the ∆’s case- he is ultimately in charge of most of the major decisions.  In certain proceedings he has the right to represent himself. 
·         There is a fifth amendment right to counsel, but that does not provide for the right to appointed counsel.  The fifth amendment right to counsel comes from Miranda. 
·         Scope of the right to counsel: when does it attach?  When does it detach?
o   Under 6th A., right to appointed counsel attaches when charges are filed and it is solidly adversarial and detaches when a final judgment (i.e. sentence) is entered
o   Then, Equal Protection provides right to appointed counsel for first appeal
The Criminal Justice Act
·         Enacted to establish a comprehensive system for appointing and compensating lawyers to represent indigent defendants financially unable to retain counsel in federal criminal proceedings.
·         There is a panel of CJA attorneys.  They are paid $125 per hour for all non-capital cases and $178 an hour for capital cases.  The maximum reimbursement is $9,700 for a felony case and $2,800 for a misdemeanor.  The maximum payment for appeals is $6,900.
A.  The Rig

es shape the scope of the Sixth Amendment right:
1.       The 6th Amendment speaks of the right of an “accused” in a “criminal prosecution.”
§  It attaches when the person becomes an “accused” and carries on throughout the “prosecution.”  However, it does not apply at every stage, only at critical stages. 
2.       The 6th Amendment grants the accused the right to the assistance of counsel “for his defense.”
§  That assistance does not require the presence or advice of counsel as to steps in the process that will not bear upon the ability of counsel to challenge the prosecution and present the case for the defense.
·         When does the right to counsel attach?
o   It is the right to have counsel present.  If the ∆ has the right to have a lawyer there and the proceeding cannot continue without a lawyer, then at that time the ∆ has a right to appointed counsel.
o   It is a two part test:
1.       It must be a critical stage of the trial. 
·         United States v. Ash.  There must be a “trial-like confrontation” in which the prosecution is present and the ∆ needs the presence of counsel to ensure a fair trial.
·         In determining whether something is a “critical stage,” the court should consider:
1.       Whether the procedure either (i) had a consequence adverse to the ∆ as to the ultimate disposition of the charge which could have been avoided or mitigated if ∆ had been represented by counsel or (ii) offered a potential opportunity for benefitting the ∆ as to the ultimate disposition of the charge through rights that could have been exercised by counsel.
2.       Whether that adverse consequence could have been avoided, or the lost opportunity regained, by action that subsequently provided counsel could have taken.
·         The following ARE NOT critical stages: probable cause hearings, bail hearings, pre-indictment lineups, grand jury, forfeiture, probation or parole revocation, post-conviction proceedings (motions for new trial, appeal, collateral relief).
2.       Of a criminal prosecution. 
·         Probation revocation and habeas corpus proceedings are not criminal prosecutions, therefore they do not come with the right to appointed counsel.
United States v. Ash
·         Facts: in an attempt to identify the ∆ as the culprit, the prosecutor showed photographs of the ∆ to witnesses after adversary criminal proceedings had begun. 
·         Holding: the ∆ was not entitled to the presence of counsel at the identification because it was not a “critical stage” of the prosecution.
Hamilton v. Alabama
·         The ∆ is entitled to appointed counsel at an arraignment, where the state law made that proceeding a critical stage by viewing defenses not raised at that point as abandoned.
Kirby v. Illinois
·         The ∆ was not entitled to a lawyer at his lineup because the lineup had been held prior to his indictment. 
·         The 6th Amendment right to counsel attaches at an indictment, formal charge, or “initiation of adversary proceedings.”  There is no 6th Amendment right to counsel any time before that.
o   Exception- U.S. v. Stein.  The U.S. government put pressure on an accounting firm to withdraw attorneys’ fees.  The 6th Circuit said this violated the right to counsel because it was a key phase in that case. 
Rothgery v. Gillespie County
·         Facts: the arrestee was brought before a magistrate upon a police affidavit (for which probable cause had already been established).  The magistrate informed the ∆ of the charges against him and imposed restrictions on his liberty in aid of the prosecution. 
·         The right to counsel attaches at the initial appearance before the judicial officer, whether pre- or post-indictment. 
o   “By the time a ∆ is brought before a judicial officer, is informed of a formally lodged accusation, and has restrictions imposed on his liberty in aid of the prosecution, the State’s relationship with the ∆ has become solidly adversarial. 
·         In dicta, the court suggested that the initial first appearance is not a ordinarily a critical stage. 
o   Whether a pretrial procedure constitutes a critical stage depends upon its potential bearing on the trial, not “to other objectives that may be important to the accused,” as the accused’s right to the assistance of counsel “for his defense” refers to “defense at trial.”
o   A standard first appearance—involving no more than making an ex parte determination of probable cause, giving notice of charges and setting bail—might not constitute a critical stage.