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

Criminal Procedure: Adjudication Outline
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

counsel because theirs was not a capital case. 
·         Holding: the right to counsel applies to all criminal proceedings. 
o   “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.” 
·         This case is often cited for waiver. 
Betts v. Brady OVERRULED
·         Facts: This was a non-capital case and the ∆ was of ordinary intelligence. 
·         Holding: due process required the appointment of counsel only where the special circumstances of the particular case indicated that the indigent defendant needed a lawyer to obtain a fair trial. 
o   The special circumstances could include the complicated nature of the offense or possible defenses thereto, events during trial that raised difficult legal questions, and personal characteristics of the defendant, such as youthfulness or mental incapacity. 
o   This test was rejected in Gideon v. Wainwright and the right to appointed counsel was extended to all indigent felony defendants. 
Chandler v. Fretag
·         Holding: there is an unqualified right to counsel of choice (retained counsel).
Gideon v. Wainwright
·         Facts: Gideon was accused of breaking and entering into a pool hall and stealing from it (felony). 
·         PH: ∆ was charged in a Florida state court. 
·         Holding: the court rejected the “special circumstances rule” (from Betts v. Brady) and extended the right to appointed counsel in state cases to all indigent felony defendants. 
o   The court was wrong in Betts to conclude that the guarantee of counsel is not a fundamental right.  There is a fundamental right to counsel. 
Scope of the Right to Counsel: Misdemeanor Prosecutions
·         Generally, denial of a constitutional right requires reversal of the conviction, exclusion of evidence, or a bar on prosecution (double jeopardy).
·         The Sixth Amendment refers to “all criminal prosecutions,” and this had previously been interpreted to mean all felonies (specifically, it didn’t apply to misdemeanors punishable by no more than 6 months).
Argersinger v. Hamlin
·         Actual imprisonment after a trial with no counsel is unconstitutional. 
·         The court found no reason to draw the line at petty offenses- “the problems associated with petty offenses    . . . often require the presence of counsel to insure the accused a fair trial.”
·         The line should be drawn at imprisonment because of the loss of liberty involved: “the prospect of imprisonment for however short a time will seldom be viewed by the accused as a trivial or petty matter and may well result in quite serious repercussions affecting his career and reputation.”