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Criminal Procedure II
Wayne State University Law School
Moran, David A.

I. Right To Counsel (6th Amdt.)
A. Scope of the Right:
-pertinent text of amdt: “In all criminal prosecution, the accused shall enjoy the right to have the assistance of counsel for his defense.”
-In Gideon v. Wayneright  (67) FACT SUMMARY: Gideon (D) appealed his criminal conviction for a noncapital felony on the grounds that the trial court’s refusal to appoint counsel for him was unconstitutional.
CONCISE RULE OF LAW: The right to counsel is one of those rights that is “fundamental and essential to a fair trial” and is thus made obligatory upon the states by the Fourteenth Amendment.
FACTS: Gideon (D) was convicted of a noncapital felony after the Florida trial court refused to appoint counsel for him because the law allowed such appointment only in capital cases. His petition for habeas corpus relief was denied, but the U.S. Supreme Court granted certiorari to consider his contention that the denial of appointed counsel had been unconstitutional.
ISSUE: Is the right to counsel a fundamental right that is made obligatory upon the states by the Fourteenth Amendment?
HOLDING AND DECISION: (Black, J.) Yes. A provision of the Bill of Rights which is “fundamental and essential to a fair trial” is made obligatory upon the states by the Fourteenth Amendment. Betts v. Brady was correct in so assuming. However, the Betts Court was wrong in concluding that the Sixth Amendment’s guarantee of counsel is not one of those fundamental rights. It is. In deciding it was not, the Betts Court made an abrupt break with its own well considered precedents. Today, this Court returns to these old precedents by recognizing that the right to counsel of one charged with a crime is deemed fundamental and essential to a fair trial in our country. Reversed.
-The Supreme Court held that all D’s in felony prosecutions were entitled to counsel, and if they could not afford one themselves, the state must provide one. This holding was given complete retroactive effect.
-Gideon incorporated the 6th amdt. right to counsel to the states, and overruled Johnson v. Zerbst (requiring appointment of counsel in all federal criminal cases if D cannot afford one) and Betts v. Brady. In Betts, the Court didn’t apply the right to counsel to the states wholesale, but limited to a case-by-case analysis, and limited it to special circumstances where the D was unable to effectively defend himself. D.P. only required that counsel be appointed in these cases.
-Violations of right to counsel are D.P. violations, (non-compliance w/ the Bill of Rights.)
1. What is the 6th amdt. right to counsel?
a. It doesn’t attach when arrested
b. It attaches at the initiation of judicial proceedings:
(i) pg. 76: Brewer v. Williams defines this as critical stages of prosecution, such as when formal charges are filed, indictments issued, preliminary hearing, information or arraignments. This is presumably at the first appearance before a judicial officer.
(ii) In mich, a criminal prosecution has begun at the time of the first appearance before a judge.
c. These proceedings must occur within 48 hours of arrest.
d. There is almost never (for poor people) an attorney present at the actual arraignment, this is just when the right attaches.
e. How is a D protected at this stage? A judge may: 1. read Miranda rights 2. advise the D to remain silent about details of the case 3. Judge has a duty to advise at this point.  
f. However, judge may set bail without atty. present, but once atty. comes on the scene, he may ask the judge to lower bail, or release person on their own recognizance.
2. For what type of offenses does this right attach?
a. In Argersinger v. Hamlin (71): The Sup. Ct. held that D.P. requires counsel to be provided to all indigents in all criminal cases where imprisonment is possible on conviction. The right to trial by jury may be limited to serious criminal cases, but the right to counsel may not be denied even in a petty offense prosecution
b. Limitation: In Scott v. Illinois (73) the Sup. Ct. held that actual imprisonment not fines or the mere threat of imprisonment is the line that defines the constitutional right to appointment of counsel. If an indigent is not provided counsel, any conviction that results from the proceeding may not be used at a later time to increase the indigent’s imprisonment upon a subsequent conviction under a recidivist statute. (Baldasar v. Illinois).
c. Therefore, a judge must determine (for offenses for which you could possibly go to jail) at the beginning of judicial proceedings whether or not he will send D to jail, and therefore, whether or not to appoint an attorney.
3. The right to appointed counsel in proceedings other than criminal prosecutions.
a.Parole Hearings: Gagnon v. Scarpelli (94): CONCISE RULE OF LAW: A probationer or parolee does not have an absolute due process right to the assistance of counsel at a hearing to revoke probation or parole; such right exists only as determined on a case-by-case basis.
FACTS: Scarpelli (D) pled guilty to a charge of armed robbery. He was given a suspended sentence of fifteen years and placed on probation for seven years. Scarpelli (D) was apprehended one month later during an attempted burglary. After having been advised of his constitutional rights, Scarpelli (D) admitted to the police that he had unlawfully broken into the house. Scarpelli (D) now asserts that the statement was made under duress and is false. His probation from the earlier conviction was revoked on the grounds that Scarpelli (D) had been involved in a burglary and that he had associated with a known criminal in the perpetration of the burglary. At no time was Scarpelli (D) afforded a hearing on the new charges and the probation revocation. Scarpelli’s (D) suspended sentence was imposed.
b. Rationale: Not a stage of criminal prosecution, no prosecutor present, etc. 
c. After Gagnon, the only argument you have for a right to counsel at a parole violation or probation violation hearing is a D.P. argument.
d. Considerations (case-by-case analysis): pg. 96
(i) if probationer or parolee makes a timely and colorable claim that 1. he did not violate his probation or parole, or 2. even if he did violate the conditions, a case of justification or mitigation can be made that is complex or difficult enough that assistance of counsel is necessary.
(ii) if probationer, especially in doubtful cases, appears capable of speaking for himself effectively
e. No D.P. argument unless it is a state or governmental deprivation of life, liberty or property
B. The Griffin-Douglas Equality Principle: “There can be no equal justice where the kind of trial a man gets depends on the money he has.”
-If there is no criminal prosecution, but life, liberty is at stake, a D might get a lawyer appointed if there are special circumstances. This is called a D.P. right to counsel.-D.P. right to counsel is different than the 6th amdt. right to counsel. (D.P. is usually a last ditch effort to get an atty. in a non-criminal proceeding). 
-There is a stringent test for D.P. right to counsel
1. Appeals
a. requirements:
(i) trial record (transcript): this is very expensive. According to Griffin v. Illinios (78), a state court must provide these things if you cannot afford them. A state cts. denial of needed appellate transcripts to an indigent D is a violation of Due Process and Equal Protection.
(ii) filing fees: if you can’t afford that, they will usually be waived.
b. According to Mayer v. Chicago (79), Griffin, is extended to non-felony cases as well as felonies, even if it is for a petty offense such as an ordinance violation where only a fine is involved.   Griffin is not a balancing test, but a flat prohibition against pricing indigent D’s out of as effective of an appeal as would be available to those able to pay their own way.
c. The 14th amdt. D.P. clause and the E.P. clause are the const. provisions that require providing transcripts and waiving fees for indigent D’s
d. E.P. Clause: “Nor shall any state…deny to any person w/in its jurisdiction the Equal Protection of the laws.”
e. More Requirements: Douglas v. California (80)
 FACT SUMMARY: After his conviction, Douglas (D) was denied appointed counsel for assistance in pursuing his right of first appeal. The denial came after the appellate court had reviewed the transcript of his trial and, pursuant to state law, had determined that counsel would not be of help to the defendant.
CONCISE RULE OF LAW: An indigent is entitled to appointed counsel to prepare an appellate brief where the appeal pursued is granted as a matter of right to all defendants.
Rationale: 1st appeal is an appeal of right (everyone has a right to them) so you get a lawyer. However, 2nd, 3rd appeals are discretionary (higher cts. can choose not the hear the appeal) therefore, no atty. provided.
f. What right do you have for appellate review if you are poor
Ross v. Moffitt (84):
 FACT SUMMARY: Ross (D) contended that he was entitled to appointed counsel to represent him in a petition for discretionary review by the Supreme Court.
CONCISE RULE OF LAW: There is no constitutional right to appointed counsel for discretionary appellate proceedings.
You are entitled to:
a. Minimum Standard of Justice
b. State Provided Right
c. Adequate Opportunity (“Meaningful Access”)
            1. Meaningful Access for First Appeal: providing counsel for indigent
2. Meaningful Access for 2nd Appeal: no attorney, however briefs from first appeal, opinion from first appeal, b/c issues are already spotted and raised
-Appeals are not considered part of the “criminal prosecution mentioned in the 6th amdt.
1. Transcripts Provided
            a. even for minor offenses (even if no lawyer)
2. Filing Fee Waived
3. Lawyer Provided For First Appeal
g. Psychiatric Exam: Ake v. Oklahoma (90) In this case the Court applied this type of analysis to an indigent’s request for a psychiatric exam at the state’s expense. Ct. said that such a request need not automatically be granted. Thetest is what a D needs. “Basic Tools” needed for an adequate defense of appeal. In this case, Ake needed a psychiatric evaluation b/c his mental condition was raised by the prosecution, and the trial would be unfair without it. 
(i) What questions will be asked to determine whether psych eval. will be deemed a basic tool:
            1. Past mental conditions
            2. Any cues or events that lead to believe that patient has mental problems
(ii) Basic Tools: The defense receives assistance only when the accused’s case will fail without the tool in question. (92)
h. Trial Transcript at second trial: Britt v. N.C.: You only get the transcript if it is a valuable tool and there is no adequate alternative. 
-the court reporter being there to read back the transcript has been held by several lower courts to be an adequate alternative.
C. The Right of Self-Representation
1. Major Case: Farretta v. California (1126):
FACT SUMMARY: Faretta (D) was convicted following a trial court’s refusal to allow him to represent himself.
CONCISE RULE OF LAW: A criminal defendant has a Sixth Amendment right to conduct a pro se defense.
a. What warnings must a court give to a D who has elected to represent himself:
(i) Judge must get a “knowing and intelligent” waiver of right to counsel. Johnson v. Zerbst (1128)
(ii) D must be made aware of the dangers and disadvantages of Self-Rep., so that the record will establish that he knows what he is doing and his choice is made with eyes open: Adams v. U.S. (1128)
b. In a trial, when can a judge not grant a D’s motion for Self-Representation:
            (i) When it is clear that D will use S.R. to obstruct and disrupt the criminal process.
            (ii)When the timing of the motion is too disruptive
                        a. right before trial
                        b. after acceptance of counsel
c. Representation of yourself waives you right to claim ineffective assistance of counsel
d. What is the Standard for S.R.:
(i) Competency to Stand Trial is the Standard Godinez v. Moran (1131) for waiving counsel
a. all you need to know is what is going on around you or have “a rational as well as functional understanding of the proceedings against him” Dusky v. U.S.(footnote a. pg. 1131).
b. This is a very low standard
            (ii) You also must be able to make a “knowing and intelligent waiver” (1132)
e. Standby Counsel: In McKaskle v. Wiggins, 465 U.S. 168 (1984)(1132), the Court held that a court could force a defendant to have counsel in a consultant role while conducting his defense. Obviously, where consultation ends and outright representation starts is not a question easily answered.
-This allows a judge to be relieved of the need to explain and enforce basic rules of ct. room protocol or to assist the D in overcoming routine obstacles.
1. Standby counsel can’t ruin the perception by the jury that the D is running his own defense.
2. D must still remain in control of his own defense.
3. However, “once a pro se defendant invites or agrees to any substantial participation by counsel, subsequent appearances by counsel must be presumed to be with the D’s acquiescence.” (1134)
-Can the judge refuse request of D for standby counsel?
            a. Yes, it is w/in the judge’s discretion
            b. Most judges will appoint
f. Right of Self-Representation on appeal Martinez:
            a. State can make you have counsel on first appeal
b. 6th amdt. doesn’t apply to appeals, so cts. have to look at D.P. and E.P. and there is no right to S.R. in those cases.
D. The Right to the Counsel of One’s Choice
a. “Almost unanimously, courts have held that the selection of counsel for an indigent is a matter within the sole discretion of the trial court. The right to effective representation is not interpreted to guarantee the defendant the best representation but only a certain minimal level of competence that an attorney, once appointed, is expected to provide”. (1137)
b. Morris v. Slappy (1139) You need something more than just not getting along w/ your attorney to get the judge to appt. an new atty. There is no “meaningful atty-client relationship” requirement only competent representation.
c. Timing is the most important factor for judge granting a new attorney:
            (i) D’s may abuse this and use it as a stall tactic
            (ii)a few weeks before trial is usually o.k.
E. Effective Assistance of Counsel
a. Any time a client raises an ineffective assistance of counsel claim, the attorney-client privilege is destroyed, and the attorney may reveal to the extent necessary all conversations critical to a proper assessment of counsel’s investigative and litigation decisions.
b.The finding of ineffective assistance of counsel does not equal malpractice per se, but can be later harmful.
c. The success of this claim is very, very rare.
§         Problem 16-13, p140
Mulligan will claim: (1) Failure to talk to eyewitnesses and co-defendant. He must show that if interviews would have taken place, that he would have had impeachment issues that would have changed the outcome (which is almost impossible here). (2) Turning down witness list. He doesn’t satisfy prejudice prong because there’s almost nothing he could do against a fingerprint expert. (especially when there’s so much other credible evidence against him—3 eyewitnesses, co-defendant) (3) Decision not to call family alibi witnesses. This doesn’t even meet the first prong because Fitt knows that they’ll most likely lie (counsel has ethical duty not to present perjury, and Mulligan whispered to Fitt that he lied).
d. Major Case:Strickland v. Washington (1984)
FACTS: Strickland (P) confessed to several crimes including murder, torture, and kidnapping. After he was convicted, he stated at the sentencing hearing that he was sorry for and regretted his crimes. His appointed counsel chose not to introduce any character evidence and to allow the court to pass sentence based solely on Strickland’s (D) statements. The attorney knew the judge favored such repentance and that introducing character evidence would subject Strickland (D) to cross-examination. Strickland (D) was sentenced to death. He petitioned the district court for a writ of habeas corpus, contending he was denied effective assistance of counsel. The district court found that any errors made by counsel were not prejudicial and denied the writ. The court of appeals reversed, and the Supreme Court granted certiorari.
HOLDING AND DECISION: (O’Connor, J.) Yes. In order to establish that he was denied effective assistance of counsel, a defendant must show: (1) counsel’s performance was deficient; and (2) the deficient performance prejudiced his defense. This requires that the defendant show that counsel’s errors were so serious as to deprive him of a fair trial. In this case, Strickland’s (D) counsel gave him reasonably effective assistance by pursuing a reasonable defense strategy. Further, any further character evidence submitted at the hearing would have been cumulative and ineffective. Therefore, any errors committed were not prejudicial. As a result, Strickland (D) failed to establish he was denied effective counsel. Reversed.
-O’Connor says that effective counsel is not just having an appointed attorney.
-Two-part Objective Test
Error: Defense counsel must have made an unreasonable error, big mistake, “so serious that counsel was not functioning as the ‘counsel’ guaranteed by the 6th amend” (the court does not look to strategy of the defense). (1156)
Prejudice: there must be a reasonable probability that without the errors, the outcome would have been different.
**Be very careful with Strickland claims, because there are many strategic reasons available (i.e. not calling detective’s testimony hearsay because he would then call the coroner who would bring in detrimental graphic evidence)
e. Examples and Applications
1. Hypo
D charged w/ raping ex-girl. Defense is that she’s lying and out to get him. Defense atty cross examines P, and impeaches her credibility with untruthfulness, during the cross she becomes upset and cries, jury become hostile because of this. Is this strategy error? NO. It may have been a mistake, but it was not unreasonable.
§         Problem14 Ch. 16, p151
Attorney did not have time to prepare for this case, but still have to show that it was an error, and that it had prejudice. See United States v. Cronic (1984) p1166. The only practical claim would be that Griffin didn’t call any witnesses. Nevertheless, failure to call witnesses will almost never result in a good Strickland challenge—this is strategy. Not interviewing witnesses is not an error either, of course some will not be credible or have any or enough evidence regarding the case (it might be an error in some cases, however).
-Almost always a losing I.A. case when D’s atty. has pre-interviewed witnesses. Lawyer will say “They weren’t going to be good witnesses”
-How can you prove I.A. when witnesses aren’t called?
            a. You must find witnesses
b. You must get them to testify at the evidentiary hearing as to what they would have said in court.
**There are some circumstances that one can bypass the Strickland test, in certain cases, prejudice is presumed:
1. conflict of interest 2. active state interference 3. when counsel is ever missing from any portion of the trial (D has a right to attorney at all times), or 4. the “sleeping attorney.”
f. Ethical Issues: 
Nix v. Whiteside (1171) 
FACT SUMMARY: Whiteside (D) contended his attorney’s threat to disclose his planned perjury violated his right to counsel.
CONCISE RULE OF LAW: An attorney does not violate the Sixth Amendment if he refuses to permit his client to lie on the stand.
HOLDING AND DECISION: (Burger, C.J.) No. An attorney does not violate the Sixth Amendment if he refuses to permit his client to lie on the stand. The court of appeals held that the attorney forced Whiteside (D) into an impermissible choice between the right to counsel and the right to testify and also threatened to disclose client confidences. It should be noted, however, that no one has any right to testify falsely, so there was no choice to make since false testimony alone would have compelled the attorney to withdraw. Further, while an attorney has the right and, in fact, the duty not to disclose admissions of guilt, he has no right to conceal future plans for criminal conduct, which perjury certainly is. Therefore, the attorney at no time forced a choice between legal alternatives, and, hence, no conflict existed. For counsel to be ineffective, both serious attorney error and prejudice must be shown, and neither occurred here. Reversed.
-Lawyers have a P.R duty not to mislead the court.
g. Real World Application of Ineffective Counsel
1. Strickland Insulates these claims from being found to be I.A.:
            a. Horrible Strategy (as long as strategy exists)
            b. Mediocrity (having a bad lawyer won’t get you anywhere)
            c. Failure to Investigate
2. The Strickland Test is very

Court granted certiorari.
HOLDING AND DECISION: (Rehnquist, C.J.) Yes. A criminal defendant bringing a selective-prosecution claim must make a credible showing of different treatment of similarly situated persons in order to obtain discovery in support of the claim. Under Federal Rule of Civil Procedure 16, which controls discovery in a criminal case, a defendant must show some evidence of disparate treatment — similar to the requirement under equal protection claims. Here, Armstrong (D) did not make such a showing. Thus, the district court’s dismissal of the case was improper. Reversed and remanded.
EDITOR’S ANALYSIS: The Court notes that the test for obtaining discovery for a selective-prosecution claim should be similar to that of an equal protection claim. Recall that to successfully pursue an equal protection claim, the claimant must show both a discriminatory effect and a discriminatory purpose. In order to show a discriminatory effect, the claimant must also show that similarly situated persons (but of a different race or religion) were not prosecuted. From this equal protection language, the Court developed the test in this case.
2. Test from Armstrong:
a. Discriminatory Effect in Prosecution: D must show that similarly situated persons were not prosecuted.
b. Discriminatory Purpose for Undertaking Prosecution: must show that you were prosecuted because of some protected characteristic that you possess (e.g. race, religion, gender).
3. For Armstrong, showing that all Blacks had been prosecuted under this law so far was not good enough, he would have had that other races were caught w/ crack in that district and not prosecuted. Ct. would not assume that other races were violating and not being prosecuted, D would have had to show this. 
4. Discriminatory Purpose:
            a. Defintion: 
1. Anything that violates the E.P. clause, decision cannot be justified on the basis of race, religion, etc…
2. To Intentionally prosecute based on protected characteristics
    The exercise of constitutional rights (speech, religion, etc..) or other invalid      
b. Discrimination on the basis of exercise of Constitutional Rights: Wayte (903): In this case, D sent letters to govt. officials stating that he had not registered for the draft, and didn’t intend to do so. These letters were added to a Selective Service file of men who had written similar letters or who had been reported by others as having failed to register. In this case, the D couldn’t show discriminatory effect. Others that were similarly situated (as far as breaking the law) were also being prosecuted. It wasn’t the protest that got D into trouble, it was bringing himself to the attention of the authorities. 
-pg. 904 of Wayte: Discriminatory intent implies that the decisionmaker selected        or reaffirmed a particular course of action at least in part because of not merely in spite of it’s effect upon an identifiable group.  
            c. Proof of Discriminatory Intent:
                        1. Direct Statements
                        2. Statistics: Ct. must infer discriminatory purpose from the statistics
3. Case: McClesky v. Kemp (904) In this case a black D had statistics that showed a higher number of death penalties for blacks in Georgia, and claimed an E.P. violation. The Court held that these stats. were insufficient, b/c the D needed to show that they acted w/ disc. intent in his specific case. State wide statistics do not support an inference of the policy of the prosecutor in this county. 
g. Other Arguments against a decision to prosecute:
1. Desuetude (912): a statute may be held to be void b/c it hasn’t been enforced for a long period of time. These are statutes that penalize conduct which, through a long period of non-enforcement, has acquired the status of customary usage, nor has the opprobrium for the act been suddenly revived. 
            -This is a very hard argument to make.
h. Selection of the charge (you can make a Selective prosecution claim as to the selection of the charge. However, you still must pass the Armstrong test.
i. Vindictive Prosecution: D.P. violation, form of selective prosecution, usually punishing someone for exercising a con. right.
1. When should it be presumed? After a conviction, an appeal, a new trial order, and then the prosecutor comes back w/ more severe charges. It is very hard to avoid the presumption (but it is a rebuttable presumption) that the prosecutor upped the charges b/c they were angry that the D got a new trial order. Blackledge v. Perry (920)
2. Why shouldn’t it be assumed after a pre-trial motion to suppress evidence? Because more and more evidence comes out before trial, during discovery and investigation. U.S. v. Goodwin (920). 
3. Presumption of vindictiveness exists when charges are raised after trial. The Ct. assumes that the prosecution already had all of the information and evidence at this point. 
a. Background Facts:
·        5th amendment requires an indictment by a grand jury for serious offenses.
·        In 1884, S.Ct. held that this does not apply to the states, MI was the first state to allow prosecutors or charge directly (1850’s).
·        Majority of states allow prosecutors to file charges directly in an ‘information.’ But grand juries still serve a second, investigative function.
·        Fed. Gov. must use grand jury to indict every felony.
·        If the police want documents, need a warrant (need probable cause). GJ can just subpoena w/o cause. Additionally, police have to actually search for the stuff, versus having the person subpoenaed just bring it.
Two functions
                        1-invesitgative function (what we’ll study first)
2-screening function (only required in federal courts as mentioned supra)
GJ’s advantage over a prosecutorial investigation in investigative function
            1-the prosecution does all the leg work
            2-police cannot make come up and talk
3-GJ’s can use a subpoena duces tecum (a subpoena ordering the witness to appear and to bring documents pertaining to the case with them)
1. The testimonial privilege.5th amendment requires an indictment by a grand jury for serious offenses.
·        5th Amendment Self-Incrimination Clause: “…nor shall any person…be compelled in any criminal case to be a witness against himself.” According to Counselman v. Hitchcock (1892), the 5th amendment applies to GJ proceedings. [it also applies to congressional hearings, administrative hearings, i.e. SEC, etc] Counselman v. Hitchcock 728-a witness directed to testify or produce documentary evidence pursuant to an immunity order could not be prosecuted for or on account of any transaction, matter, or thing concerning which he may testify or produce evidence. Also it’s the idea that you should not be compelled to do anything that eventually could be used against you, otherwise it would be easy for the prosecution to testify against themselves in GJ proceedings.
5th also attaches as congressional/administrative hearings
·        When one pleads the 5th, it only applies to questions that tend to incriminate, not to every question.
·        Problem 6-13, p73.
o       U.S. v. Washington, (725)ruled that one can be legally blindsided, not knowing they are the target. 
U.S. v. Mandujano, (718)Miranda rights do not apply to GJ subpoenas, they are a much less coercive environment. The rationale behind the use of Miranda warnings is to protect suspects from coercive police interrogation techniques. In GJ there are thrid parties, no judge, and the GJ are ordinary citizens.
2. Right to Counsel in G.J.: No 6th amendment right at all to have an attorney present at GJ; so look to the Due Process Clause, and make an argument that not letting counsel be present would be fundamentally unfair (see Gagnon v. Scarpelli). Some factors to look at are: how necessary the attorney is—look to the education and intelligence of the witness. This really only applies in very rare exceptions.
·        Attorneys must wait in the hallway of GJ investigations. Witness can request to consult with lawyer. This is allowed via state statute, or the fed rules of crim. pro. Moran supposes that the prosecutor or GJ could waive this restriction, and let the attorney in.
Hoffman v. United States715-witness refused to answer questions about his occupation (illegal gambling) because he though the question to be incriminating.&nbs