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

Crim Pro: Adjudication
Winter 2011
Types of Error
I.                   Focus:
a.       What is the alleged error: const or statutory/rule?
b.      At what point in the process did the alleged error take place?
c.       How was the claim of error resolved at the tr ct level?
d.      Was the error objected to be counsel (usually defense, but maybe prosecutor)?
e.       Who bears burden of demonstrating the alleged error or its impact?
II.                Role of Appellate Review
a.       Exchequer Rule: trial error resulting in the improper admission or exclusion of evidence was presumed prejudicial, resulting in reversal of the conviction.
b.      Technical Pleading Rules: Courts required the govt to meet highly stylized pleading rules, and demanded that the evidence conform to the pleadings, so that any disparity, “variance”, b/t the evidence and the pleading meant there was an error, resulting in reversal of the conviction
c.       Fed Harmless Error Statute: 28 USC § 391 – adopted 1919
III.             Asserting Error
a.       Rule 51(b)
                                                  i.      A  party may preserve a claim of error by informing the court  – when the ruling or order is made or sought- of the action the party wishes the court 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.
                                                ii.      Raise or Waive Requirement
1.      Party must make a timely objection or claim is WAIVED. (More of a forfeiture)
2.      If counsel mistakenly does not raise an objection- maybe grounds for ineffective assistance of counsel (IAC)– unless “strategic decision” then cant be challenged as IAC.
                                              iii.      Unwaivable (or non-forfeiturable) claims
1.      Double Jeopardy
2.      Speech or Debate Clause
3.      Jurisdictional Defects (rule 12 (b))
b.      Rule 52 Error
                                                  i.      (a) Harmless Error: Any Error, defect, irregularity, or variance that does not affect substantial rights must be disregarded. [Objected Error] 1.      Was there objected error? Or failure to object excused?
2.      Was error harmless error or structural error thereby resulting in auto-reversal?
3.      ***Party who benefited from the error has the burden of showing harmless error beyond reasonable doubt.
                                                ii.      (b) Plain Error: If forfeit by failure to object must prove plain error – A plain error that affects substantial rights may be considered even though it was not brought to the court’s attention. [unobjected error] 1.      If knowingly, intentionally waived – cannot argue plane error
2.      Plain error applies to all types of unobjected  to errors (const and non-const)
3.      Requirements for Plain Error (Olano Factors (4):
a.       (1) Error (i.e. not waived, only forfeited)
b.      (2)Plain = clear or obvious
c.       (3)Affect substantial Rights = ∆s burden to establish (or party who didn’t object, usually ∆)
d.      (4) Miscarriage of Justice = appellate court discretion to correct
c.       Non-Constitutional Error: Harmless Error – Rule52(a)
                                                  i.      Kotteakos v. US:  Rejected approach of App Ct asking whether finding of guilt was appropriate.
1.      Balancing Test: How Important was the error? Bad = Reversal, Not Bad = No Reversal
2.      Test: Whether -even if there was enough evidence to support the conviction , apart from the phase affect by the error – the error itself had a substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand
a.       Burden on the government/party benefiting from the decision/ruling
                                                ii.      O’Neal v. McAninch: Did the error have a “substantial and injurious effect or influence in determining the jury’s verdict
d.      Constitutional Error
                                                  i.      Chapman v. California: Prosecutor made comments about ∆’s failure to testify (5th Amend Violation) – Court held: In order for an error to be harmless it must be proven that the error was harmless beyond a Reasonable Doubt.
                                                ii.      Chapman Error = Harmless beyond  a reasonable doubt
e.       Structural Error – automatic Reversal Error
                                                  i.      Chapman: Constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error FN 8 – (3) Types of Errors not subject to Chapman:
1.      Const error that require a remedy of barring reprosecution
2.      Violations that itself requires showing of significant probability that error had an impact of the proceeding – DP Violations – Brady/Bagley
3.      Structural Defect Concept
                                                ii.      Neder: Errors of this type so intrinsically harmful as to require auto reversal w/o regard to their effect on the outcome
1.      Held: Absence of complete verdict on every element of the offense establishes no more than an improper instruction on an element of the offense violates the Sixth Amendment jury trial guarnetee – an issue not before the court. Omission of an element is subject to harmless error analysis when satisfies Chapman Std.
                                              iii.      Automatic Reversal:
1.      Complete Denial of right to counsel (Gideon)
2.      Denial of right to self-representation (McKaskle v. Wiggins)
3.      Denial of right to counsel of choice (Gonzalez v. US)
4.      Racial Discrimination in selection of grand or petit jury (Vasquez v. Hillary and Batson v. Kentucky)
5.      Denial of a public trial (Waller v. Ga.)
6.      Defective instruction on proof beyond R.D. (Sullivan v. LA)
7.      Improper Exclusion of a juror in a capital case (Gray v. Miss)
8.      DJ, Speedy Trial, and Speech and Debate Claue violations (nature of the violation is right not to be tried)
9.      Const violations involving proof of prejudice as an element of the violation (Brady Exculpatory evidence claims and Strickland IAC claims)
f.       Key: ∆s want to be in structural error b/c auto reversal – but can the defense get the case into structural error/auto reversal – and for the govt, the key is to keep the case in harmless error analysis so to live to fight another day!
I.                   Right to Appointed Counsel
a.       6th Amendment Right to Counsel: “In all criminal prosecutions, the accused shall enjoy the right…the have the Assistance of Counsel for his defense.”
                                                  i.      When does it attach? Detach?
                                                ii.      What does enjoy mean?
1.      Enjoy right to counsel – doesn’t mean can have whenever a ∆ wants, don’t enjoy at every step.
                                              iii.      Remedy for denial of right to counsel?
                                              iv.      What does Assistance mean?
1.      ∆s case – can rep self in some circumstances and can have assistance from Attorney if would like.
b.      Appointed Counsel
                                                  i.      Criminal Justice Act (CJA) – Fed system of providing counsel. Authorized reimbursement of reasonable out-of-pocket expenses and payment of expert and investigative services necessary for an adequate defense.

l discretionary appellate review of guilty plea and sentence. Does Douglas or Ross apply? Douglas wins (6-4 vote)
a.       Unlike Ross, this is initial appellate review looking to merits of claim. And again unlike Ross, first-tier ∆s ill-equipped to rep themselves
XI.             Ake v. Oklahoma: Indigent ∆ offered an insanity defense, but was not permitted to retain an expert on the issue at that state’s expense. à DP analysis
a.       Indigent ∆ needs access to materials integral to building effective defense -“basic tool” and such tools be provided to those ∆s who cannot afford to pay for them
XII.          Right to Counsel: Beware of your lawyer
a.       Problem arises when appellate counsel want out and ∆ wants to defend themselves
b.      Right to counsel on appeal as of right?
                                                  i.      Yes – and Guilty Appeal –Halbert
                                                ii.      Not 6th Amend right – EP right
c.       Can lawyer fire client? Yes – sometimes it’s req’d – if client will perjure must sek to w/draw
d.      Problem is: if appointed counsel – judge will not usually allow client to fire lawyer, or lawyer to quit.
XIII.       Withdrawal of appellate Counsel
a.       If appeal lacks merit, maybe able to w/draw
b.      Anders v. Calif.: Request to withdrw as counsel must however, be accompanied by a brief [Anders Brief] referring to anything in the record that might arguably support the appeal. A copy of counsel’s brief should be furnished the indigent and time allowed himt o raise any points he chooses; the court – not counsel – then proceeds, after a full exam of all the proceedings, to decide whether the case is wholly frivolous.  à rule doesn’t apply at trial level
c.       McCoy v. Ct of App of Wisconsin: Local rule req’ing Anders brief to discuss why the case lacks merit does not violate the lawyers duty of loyalty to the client or the duty of confidentiality.
d.      Smith v. Robbins: Anders procedure is not the only method for app counsel w/drawal b/c it is not the “only prophylactic framework that cold adequately vindicate this right” to counsel. [E.P right to counsel, not 6th amend] XIV.       Right to counsel at non-criminal proceeding?: Non-Criminal Punitive Hearings
a.       Mempa v. Rhay: “Duck Test” if the hearing is a combined probation revocation and sentencing hearing, then it is a “critical stage” and counsel must be provided under the  6th Amend.
b.      Gagnon v. Scarpelli: Counsel is not req’d at all probation revocation proceedings b/c “DP is not so rigid as to require that the significant interests in informality, flexibility, and economy must always be sacrificed – Counsel not req’d at probation revocation hearing – DP doesn’t require it, but may have statutory right
c.       In Re: Gault: counsel req’d at juvenile delinquency hearings that may result in the juvenile’s loss of freedom, even though it is not a criminal prosecution, under DP
d.      Penn v Finley: No right to counsel for  criminal ∆ who collaterally attacks a conviction (i.e. habeas corpus, §2255)