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Criminal Procedure II
Wayne State University Law School
Van Hoek, Peter

Criminal procedure 2 – P rofessor Peter Van Hoek – FALL 2002

EXAM: 
·        Open book – any materials allowed

·        short, concise answers; some answers may require only a few sentences.
·        more important to cite holding of case, not name of case; more credit given for holding/concepts than for name of case
·        not very important what result may or should be; more important to know law & issues applicable to facts
·        don’t assume additional facts that are not stated!! (if assuming additional facts, must state those assumptions!)
·        don’t assume question asks about legal principles not covered in this class! Questions will require answers within scope of this course!
·        Know what is a constitutional right & what is subject to state discretion

·        Looking for 4 basic things in exam answers:
1)      what legal standards will be applied (what does judge have to determine, what does a party have to show, etc)
2)      what case law applies in case
3)      what prosecution will argue
4)      what defense will argue

INTRODUCTION
CHAPTER 1. AN OVERVIEW OF CRIMINAL JUSTICE PROCESS

P 12-29 cb; p 1-7 leglines
THE STEPS IN PROCESS

This overview focuses on processing only felonies.

1.      THE REPORTED CRIME
2.      PREARREST INVESTIGATION
On-scene arrests
Reactive investigations
Prosecutorial investigations
3.      ARREST
4.      BOOKING
5.      POST-ARREST INVESTIGATION
6.      THE DECISION TO CHARGE
7.      FILING COMPLAINT
8.      MAGISTRATE REVIEW OF ARREST
9.      THE 1ST APPEARANCE
10. PRELIMINARY HEARING
11. GRAND JURY REVIEW
12. FILING INDICTMENT OR INFORMATION
13. ARRAIGNMENT ON INFORMATION OR INDICTMENT
14. PRETRIAL MOTIONS
15. TRIAL
16. SENTENCING
17. APPEALS
18. POSTCONVICTION REMEDIES

P 56-74 cb; p 13-19 leglns
CHAPTER 3. RIGHT TO COUNSEL, TRANSCRIPTS & OTHER AIDS; POVERTY, EQUALITY & ADVERSARY SYSTEM

·        INDIGENT – DOES NOT MEAN TOTAL DESTITUTION.

ATTORNEY GENERAL COMMITTEE ON POVERTY & ADMINISTRATION OF FEDERAL CRIMINAL JUSTICE 1963 p 56
·        Constitutional rights to appointment of counsel not conditioned on showing total destitution. Rather, criterion appears to be lack of financial resources adequate to permit accused to hire own lawyer.
·        poverty of accused must be measured in each case by reference to particular need or service under consideration.
·        A problem of poverty may arise at each stage of proceedings.
·        Poverty must be conceived as a relative concept.
THE OBLIGATION OF “EQUAL JUSTICE”
·        Gov’t not required to relieve accused of poverty; it may properly be required to minimize influence of poverty on administration of justice.
·        crucial question: has gov’t done all that reasonably be required of it to eliminate factors that inhibit proper & effective assertion of grounds relevant to criminal liability of accused or to imposition of sanctions & disabilities on accused at all stages of criminal process?
POVERTY & ADVERSARY SYSTEM
·        The proper performance of defense function is as vital to health of system as performance of prosecuting & adjudicatory functions.
·        Insofar as financial status of accused impedes vigorous & proper challenges, it constitutes a threat to viability of adversary system.

INDIGENT DEF’S “OBLIGATION” TO REPAY GOV’T FOR DEFENSE COSTS; REIMBURSEMENT CONDITON OF PROBATION

RINALDI V YEAGER 1966 –statute invalidated where only defs sentenced to prison required to pay for transcript (fines or probation sentences treated differently, thus creating discrimination)
·        Invalidated NJ statute requiring only indigent defs who were sentenced to prison to reimburse state for cost of a transcript on appeal.
·        Found “invidious discrimination” between defs & others sentenced only to pay fines or subject only to a suspended sentence or to probation.

JAMES V STRANGE 1972 – statute invalidated b/c criminal def (whether convicted or not) treated differently than civil judgment debtors
·        Kansas recoupment statute (applying whether or not indigent def convicted) violated equal protection b/c indigent def could not avail himself of restrictions on wage garnishments & other protective exemptions afforded to other civil judgment debtors.

FULLER V OREGON 1974 – state recoupment statute upheld
·        OR recoupment statute, which under some circumstances authorized repayment to state costs of free legal defense as condition of probation – upheld.
·        Defs w/no likelihood of having means to repay not put under even conditional obligation to do so, & those upon whom conditional obligation is imposed not subjected to collection procedures until indigency ended & no manifest hardship to def or immediate family will result.
·        fact that indigent who accepts appointed counsel knows he might someday be required to repay costs in no way affects eligibility to obtain counsel.
·        Oregon statute upheld – that required those w/likelihood of being able to repay in future, to accept a contingent obligation to repay counsel fees as a condition of probation. obligation was not imposed until indigency ended.
·        James v Strange distinguished from this case: no favorable distinctions in Oregon law relative to civil judgment creditors.

ABA STANDARDS
·        Recommends defs be ordered to reimburse for defense only where they made fraudulent representations to be found eligible for counsel.
·        offer of free legal assistance is rendered hollow if defs required to pay for counsel for several years following conviction. Reimbursement requirements also may discourage defs from exercising their right to counsel.

1.      THE RIGHT TO APPOINTED COUNSEL & RELATED PROBLEMS p 59

A.     THE RIGHT TO APPOINTED COUNSEL IN CRIMINAL PROCEEDINGS p 59
·        Per early English law, only those accused of minor offenses could be represented by counsel. Treason Act of 1685 allowed those accused of high treason to use counsel to defend themselves.
·        American colonies: general practice in serious criminal cases was self-representation, not representation by counsel. By time colonies ratified Constitution, most states had granted criminal defs right to be represented by a lawyer – but no state guaranteed right to appointed counsel.

POWELL V ALABAMA 1932 – US Sup Ct – state case – 1st significant opinion concerning right to counsel.
·        The ct focused on special circumstances – that defs stood in peril of their lives – & decided that in such circumstance, failure of trial ct to give defs reasonable time & opportunity to secure counsel was clear denial of due process.

6TH AM RIGHT TO COUNSEL – IS NOT ABSOLUTE!!
·        Prevents federal cts from depriving accused of life or liberty unless accused has counsel or waives this right

JOHNSON V ZERBST 1938 – US Sup Ct – FEDERAL FELONY DEFS HAVE 6TH AM RIGHT TO COUNSEL
·        6th Amend gives indigent federal felony defs right to appointed counsel
·        def may intentionally & competently waive this right.

**BETTS V BRADY 1942 (IMPORTANT CASE) p 60 –case by case approach to state ct due process
·        State capital case. Betts tried for robbery in state ct, unable to employ counsel, requested counsel be appointed, state refused.
·        Betts waived jury trial, pleaded NG, conducted own defense, convicted, brought habeas corpus proceeding in fed ct, no denial of due process found in this case – since def seemed able to adequately defend himself & judge decided case & was able to control trial presentation.
·        The right to counsel is vital under federal prosecutions.
·        states not required to grant appointed counsel in state cases. case-by-case analysis required to determine if appointed counsel granted.
·        In certain cases, such as capital case where accused cannot obtain counsel & cannot effectively defend himself, due process may require appointment of counsel, even in state cts.   Gideon v Wainwright reverses this decision in 1963.

THE AFTERMATH OF BETTS V BRADY p 63
·        In many cases following Betts, & before Gideon, Sup Ct found def’s lack of counsel did prejudice his/her case. w/each case, less & less was required to show such prejudice.

**GIDEON V WAINWRIGHT 1963 (IMPORTANT CASE) p 64 – right to appointed counsel in all state felony cases.
·        State felony case. Gideon charged in FL ct w/felony. Gideon indigent – request for counsel denied. Gideon defended himself, was convicted, & sentenced to 5 years prison, Gideon filed habeas corpus proceeding. US Sup Ct reversed judgment against def Gideon.
·        Overruled Betts v Brady.   right to appointed counsel is guaranteed in state cases also – since right to counsel is essential in all felony cases. (not just capital felony cases) THE RIGHT TO AID OF COUNSEL IS FUNDAMENTAL & ESSENTIAL TO A FAIR TRIAL.

THE UNREALIZED DREAM OF GIDEON V WAINWRIGHT

ARGERSINGER V HAMLIN 1972 p 67 – RIGHT TO COUNSEL WHENEVER IMPRISONMENT IMPOSED
·        Statute at issue – if max penalty 6 mon or less incarceration, no right to appointed counsel. Indigent def tried for offense punishable by imprisonment or 6 months, fine of $1,000, or both. Def received 90-day sentence. Florida did not provide counsel unless offense punishable by more than 6 months.
·        DUE PROCESS REQUIRES COUNSEL PROVIDED TO INDIGENTS IN ALL CRIMINAL CASES IF IMPRISONMENT POSSIBLE ON CONVICTION.
·        US Sup Ct struck statute – arbitrary to create 6-mon rule– deprivation of liberty important regardless of short incarceration term.
·        IF NO COUNSEL PROVIDED, REGARDLESS OF CRIME, NO IMPRISONMENT MAY BE IMPOSED, EVEN IF ALLOWED BY LAW.

SCOTT V ILLINOIS 1979 p 69 – actual imprisonment controls requirement of counsel – not mere imprisonment possibility or threat
·        INDIGENT DEF NOT ENTITLED TO APPOINTED COUNSEL IF HE COULD HAVE BEEN SENTENCED TO JAIL, B/C HE WAS ACTUALLY ONLY FINED.
·        ACTUAL IMPRISONMENT, NOT FINES OR MERE THREAT OF IMPRISONMENT, IS LINE THAT DEFINES CONSTITUTIONAL RIGHT TO APPOINTED COUNSEL.

BALDASAR V ILLINOIS 1980
·        Overruled in Nichols v US 1994
·        IF INDIGENT NOT PROVIDED COUNSEL, RESULTING CONVICTION MAY NOT BE USED AT LATER DATE TO INCREASE INDIGENT’S IMPRISONMENT UPON SUBSEQUENT CONVICTION UNDER RECIDIVIST STATUTE.

NICHOLS V UNITED STATES p 72 1994
·        Overruled Baldasar v Illinois UNCOUNSELED MISDEMEANOR CONVICTION, VALID UNDER SCOTT V ILLINOIS B/C NO PRISON TERM IMPOSED, IS ALSO VALID WHEN USED TO ENHANCE PUNISHMENT AT SUBSEQUENT CONVICTION.
·        IT IS PERMISSIBLE TO CONSIDER PRIOR UNCOUNSELED CONVICTION BASED ON SAME CONDUCT WHERE THAT CONDUCT MUST BE PROVEN BEYOND A REASONABLE DOUBT.
Supplement P 1-7
**ALABAMA V SHELTON p 1 supp 2002 – if no appointed counsel, no suspended sentence or probation that might lead to incarceration
·        Shelton convicted misdemeanor 3rd degree assault, indigent Shelton not appointed counsel, given suspended sentence 30 days jail, 2 yrs probation.
·        IF STATE DOES NOT PROVIDE INDIGENT DEF W/ COUNSEL, SUSPENDED SENTENCE PROBATION VIOLATION CANNOT ACTIVATE SUSPENDED INCARCERATION.
·        DEF ENTITLED TO APPOINTED COUNSEL AT “CRITICAL STAGE” WHEN HIS GUILT OR INNOCENCE OF CHARGED CRIME IS DECIDED & HIS VULNERABILITY TO IMPRISONMENT IS DETERMINED.
·        Once a prison term is triggered, def incarcerated not for probation violation, but for underlying offense. result is that def incarcerated w/o benefit of counsel at trial.
·        DISPOSITIVE FACTOR IN NICHOLS V US: not if incarceration occurred immediately or only after some delay. Rather, critical point was that def had a right to counsel when adjudicated guilty of felony offense for which he was imprisoned. Unlike this case, in which revocation of probation would trigger prison term imposed for misdemeanor of which Shelton was found guilty w/out assistance of counsel, sentence imposed in Nichols was felony conviction for which right to counsel is unquestioned.

Civil vs. Criminal cases – 6TH AM
·        6th Amend not construed to apply to civil cases.
·        Incarceration (potential liberty interest deprivation)= differentiating factor that makes right to counsel important in criminal cases – but not civil cases

B.  THE BEGINNINGS OF RIGHT TO COUNSEL p 72

·        6th amend right to counsel attaches at start of adversarial proceedings against def. right doesn’t attach if person merely suspect

·        Commencement of adversarial proceedings includes: formal charge, preliminary hearing, indictment, information, arraignment.

·        5th amend right to counsel reflects a right against self-incrimination during custodial interrogation. This right pertains only to custodial interrogation settings. Attorney representation beyond custodial interrogation falls under 6th amend.

UNITED STATES V GOUVEIA 1984 p 74
·        Inmate Gouveia held in administrative detention for several months after prison officials determined he had murdered other inmates. Gouveia did not receive appointed counsel during detention.
·        DETENTION ALONE DOES NOT CONSTITUTE ADVERSARY PROCESS INITIATION – APPOINTED COUNSEL RIGHT DOES NOT ATTACH
·        CORE PURPOSE OF RIGHT TO COUNSEL: assure def aid at trial.
·        RIGHT TO COUNSEL HAS BEEN EXTENDED: to include critical pretrial proceedings that might settle accused’s fate.
·        RIGHT TO COUNSEL NOT EXTENDED SO FAR TO PROVIDE A PRE-INDICTMENT(PRE-CHARGE) PRIVATE INVESTIGATOR.

P 74-87 cb; leglns p 19-22
2.      THE GRIFFIN-DOUGLAS “EQUALITY” PRINCIPLE p 74
·        Reality of criminal justice system: wealthy def can hire best lawyers, investigators, experts – obtaining best possible defense; indigent may receive a minimal defense. No completely satisfactory solution to this inequity, but US Sup Ct has set forth some standards for promoting equality.
·        Prior to Griffin case, indigent def could not even appeal if he/she wanted to – due to inability to pay for a transcript required for appeal process!

GRIFFIN V ILLINOIS 1956 p 74 – cannot discriminate against indigent defs; transcripts free to defs unable to pay
·        If a state provides automatic appeals (from convictions), it must provide indigent defs free trial transcripts (which would be necessary to appeal conviction).
·        States not required to provide appellate review of criminal cases. But if appeal is allowed, appeal cannot be allowed in manner discriminatory against some defs b/c of poverty. Due process requires that defs who cannot afford to pay – get free transcripts in all felony criminal cases.

APPEAL BY RIGHT
·        If appealing party properly submits appeal, it must be reviewed by appellate body.
APPEAL BY LEAVE
·        Appellate body can choose whether or not to review appeal. (ie: US Sup Ct is example – they have discretion to review appeal or not)

A.     APPLICATION (OR EXTENSION) OF GRIFFIN

MAYER V CHICAGO p 76 1971 – FREE TRANSCRIPT FOR INDIGENT APPLIES TO ALL CRIMES (MISDEMEANORS & FELONIES), REGARDLESS OF SENTENCE (EVEN IF ONLY FINE IMPOSED); GRIFFIN RULE IS NOT A BALANCING TEST
·        Def Mayer was indigent, violated 2 city ordinances, & fined $500.
·        Wishing to appeal conviction, def petitioned trial ct for free trial transcript, which was denied.
·        GRIFFIN RULE FOR TRANSCRIPT ON APPEAL APPLIES TO MISDEMEANORS & FELONIES– EVEN IF ONLY FINE INVOLVED.
·        GRIFFIN IS NOT A BALANCING TEST. IT IS FLAT PROHIBITION AGAINST PRICING INDIGENT DEFS OUT OF EFFECTIVE APPEAL THAT WOULD BE AVAILABLE TO THOSE ABLE TO PAY FOR TRANSCRIPT.

B.     THE IMPACT OF “EQUALITY” PRINCIPLE ON INDIGENT DEFS p 76

**DOUGLAS V CALIFORNIA 1963 p 76 – STATE MUST PROVIDE COUNSEL FOR INDIGENT DEF FOR INITIAL APPEAL AS OF RIGHT
·        Defs convicted of felonies & appealed. Dist Ct of Appeal affirmed, defs petitioned for further discretionary review in CA Sup Ct. petitions denied w/o hearing & certiorari was granted.
·        indigent defs denied equal protection of law where merits of 1 appeal they had as of right from their convictions decided w/o benefit of counsel, following determination by Appellate Ct that appointment of counsel was of no value to defs or ct. Judgment of District Ct of Appeal vac

f who waived right to assistance of counsel not required to be more competent than def who did not, b/c no reason to believe decision to waive counsel required appreciably higher level of mental functioning than decision to waive other constitutional rights. As to guilty plea, decision to plead guilty was no more complicated than sum total of decisions that a def could have been called upon to make during course of a trial.

McKASKLE V WIGGINS 1984 p 1099 – STANDBY COUNSEL
·        This represents a compromise between pro per def & appointed attorney for def.
·        If def allowed to proceed substantially pro se, stand-by attorney can be appointed to counsel def who conducts much or most of trial
·        Stand-by counsel must allow def to steer direction of trial.

JONES V BARNES 1983 p 1103 – INDIGENT DEF HAS NO RIGHT TO COMPEL APPOINTED COUNSEL TO PRESS NONFRIVOLOUS ISSUES REQUESTED BY DEF, IF COUNSEL DECIDES NOT TO PRESENT THESE ISSUES AS MATTER OF PROFESSIONAL JUDGMENT
·        In granting prisoner’s petition for writ of habeas corpus, ct of appeals determined decision of defense counsel to not argue nonfrivolous issue on appeal resulted both in ineffective assistance of counsel & denied prisoner’s right of equal access to appellate process. In challenging judgment, gov’t argued precedent did not mandate defense counsel to raise each & every nonfrivolous claim during appeal, that often such a rule would impair effectiveness of appeal by placing too many claims before appellate tribunal & watering down strongest among them.
·        ct found no requirement that each nonfrivolous claim be raised on appeal. decision regarding what issues to present left in discretion of counsel, who was required to represent client to best of his ability. ct found that appellate counsel met this standard in his representation of def.

2.      THE RIGHT TO COUNSEL OF ONE’S OWN CHOICE p 1105

A.     THE RIGHT TO AN APPOINTED COUNSEL OF ONE’S CHOICE

PETER TAGUE – AN INDIGENT’S RIGHT TO ATTORNEY OF HIS CHOICE p 1105
·        Almost unanimously, cts hold selection of counsel for an indigent is a matter within sole discretion of trial ct. Justifications for this decision:
1)      judges assume that they can choose a more able attorney than indigent b/c they know abilities of available counsel
2)      right to effective representation not interpreted to guarantee def best representation, but only a certain minimal level of competence.

NONINDIGENT’S RIGHT TO ATTORNEY OF HIS CHOICE
·        cts will not interfere w/nonindigent’s choice of counsel except if def attempts to switch counsel after trial begins or issue of conflict of interests arises.

(Problem book – ch 16 #6)

HARRIS V SUPERIOR CT 1977 p 1106
·        1st case to limit judge discretion to appoint counsel when indigent def can show “objective considerations” supporting his choice of appointed counsel

MORRIS V SLAPPY 1983 p 1106
·        6th Am guarantees only competent representation, not “meaningful attorney-client relationship”.
·        lower ct failed to wholly take into account interest of victim in case. Although inconvenience & embarrassment to victims & witnesses cannot justify failing to enforce constitutional rights of accused, cts must not ignore concerns of victims – especially if testimony will include humiliating topics difficult to endure in more than 1 trial – if mistrial or retrial permitted due to assistance of counsel violation.

B.     THE RIGHT TO RETAIN COUNSEL OF ONE’S CHOICE p 1108

WHEAT V UNITED STATES 1988 (p 1160)
·        Right to retained counsel of choice does not preclude disqualification of lawyer subject to potential conflict of interest even though def willing to waive right to conflict-free counsel.

(Problem book – ch 16 #9)

3.      THE RIGHT TO “EFFECTIVE” ASSISTANCE OF COUNSEL p 1115
·        1978: 30% of defs w/public defenders reported attorney spent less than 10 minutes w/them. 49% thought their attorney was on side of state.

EVITTS V LUCEY 1985 p 1116 – PREJUDICE TO DEF UNDER STRICKLAND TEST DID ESTABLISH INEFFECTIVE ASSISTANCE
·        A case where ineffective assistance of counsel established.
·        Ct-appointed atty failed to file something in timely fashion on an appeal – which eliminated def’s ability to have an appeal at all
·        US Sup Ct found: def did experience prejudice required under Strickland test – which violated 6th Am right to effective assistance.

WAINWRIGHT V TORNA 1982 p 1117 – FOR NON-INDIGENT: NO EFFECTIVE ASSISTANCE OF COUNSEL RIGHT W/RETAINED COUNSEL, WHEN NO APPOINTED COUNSEL RIGHT FOR INDIGENT EXISTS
·        Even if def has constitutional right to utilize retained counsel in proceedings in which indigent def lacks constitutional right to appointed counsel, right to retained counsel in such additional proceedings does not carry w/it a right to effective assistance by that counsel.

UNITED STATES V DECOSTER 1976 p 1119
DISSENT
·        Dissent observed: heart of “categorical” approach lies in defining ineffective assistance in terms of quality of counsel’s performance, rather than looking to effect of counsel’s actions outcome of case.
PLURALITY
·        Although “categorical” approach has some supporters, this approach has not prevailed. Instead plurality opinion in Decoster has proved highly influential.
·        “A reviewing ct’s appraisal requires a ‘judgmental’ approach – 1 that looks to totality of circumstances of case in evaluating counsel’s effectiveness – rather than a categorical approach.

SUPREME CT REJECTS ‘CHECKLIST’ OR ‘CATEGORICAL’ APPROACH
·        Strickland v Washington, & US v Cronic: these decisions left no doubt about Sup Ct’s rejection of any checklist or categorical approach. Sup Ct determined ineffectiveness claims must be evaluated on case-specific basis requiring showing of prejudicial impact.

**STRICKLAND V WASHINGTON 1984 p 1120 (IMPORTANT CASE)
·        Important – precedent setting case re: 6th Am ineffective assistance of counsel standard
·        TO SUCCESSFULLY CLAIM INEFFECTIVE ASSISTANCE OF COUNSEL, DEF MUST SHOW THAT ‘BUT FOR COUNSEL’S UNPROFESSIONAL ERRORS’, RESULT WOULD HAVE BEEN DIFFERENT. PROOF OF PREJUDICE REQUIRED!
·        FAILURE TO SHOW EITHER DEFICIENT PERFORMANCE OR SUFFICIENT PREJUDICE DEFEATS INEFFECTIVENESS OF COUNSEL CLAIM!
·        Established 2-prong standard for ineffective assistance of counsel under 6th Amend:
1.      Counsel provided less than reasonably competent assistance of counsel
2.