Criminal Procedure
Fall 2010 – Professor Ashdown
INTRODUCTION – SOURCES OF CRIMINAL PROCEDURAL LAW
SECTION 1 – The “Ordered Liberty” – “Fundamental Fairness,” “Total Incorporation” and “Selective Incorporation” Theories
SCOTUS rejected the “total incorporation” view of the history of the 14th amendment
– Total Incorporation – That the 14th amendment made all of the provisions of the federal Bill of Rights fully applicable to the states (Never has had a majority of justices)
o Twining v. New Jersey, 211 U.S. 78 (1908) –The 5th amendment privilege against self-incrimination was not incorporated in the 14th amendment – Overruled by Malloy v. Hogan
§ Recognized that “it is possible that some of the personal rights safeguarded by the first eight Amendments against National action may also be safeguarded against state action, b/c a denial of them would be a denial of due process of law.”
o Palko v. Connecticut, 302 U.S. 319 (1937) – 14th amendment did not encompass at least certain aspects of double jeopardy of the 5th amendment – Overruled by Benton v. MD, 395 U.S. 784 (1969)
o Adamson v. California, 332 U.S. 46 (1947) – Same as Twining
§ Dissent – “Total incorporation” – Justices Black and Douglas – maintained that the history of the 14th amendment suggested that its purpose was to totally incorporate the federal Bill of Rights
o Griffin v. CA – Applied Malloy to overrule Twining and Adamson which permitted comment on a state Δ’s failure to take the stand – Still rejection of “total incorporation”
o Powell v. AL – Δ in a capital case was denied due process when a state refused them the aid of counsel.
§ Duncan v. LA – The logically critical is that these rights were deemed “FUNDAMENTAL” – Justice Harlan
– Particular procedural safeguards included in the Bill of Rights were said to be applicable to the states if they were “implicit in the concept of ordered liberty.”
o Of the very essence of a scheme of ordered liberty
o A fair and enlightened system of justice would be impossible w/o them
o Required by the immutable principles of justice as conceived by a civilized society
o Fundamental to the American scheme of justice
o Is a particular procedure FUNDAMENTAL?
§ Fundamental in this context – Fundamental in the context of the criminal processes maintained by the American States
· Mapp v. Ohio (state courts must exclude evidence seized in violation of the 4th amendment)
· Griffin v. CA (state prosecutors may not comment on a Δ’s refusal to testify)
– Selective Incorporation – Incorporation of certain provisions of the Bill of Rights
o Duncan v. LA – Justice Black’s concurrence – the selective incorporation process has the virtue of having already worked to make most of the Bill of Rights’ protections applicable to the States.
§ Keeps judges from roaming at will in their own notions of what policies outside the Bill of Rights are desirable
o SCOTUS has yet to rule on 3 Bill of Rights guarantees
§ 8th Amendment prohibition of excess bail
§ 8th Amendment prohibition against excess fines
§ 6th Amendment guarantee that the jury be selected from the same state and district where the crime took place
§ Lower Courts have unanimously found that 8th Amendment rights are FUNDAMENTAL and are split on the 6th Amendment
o SCOTUS applies the provisions to the states to the same extent it applied to the federal government
§ Dissent – Harlan – The consequence is inevitably disregard of all relevant differences which may exist between state and federal criminal law and its enforcement (dilution of federal standards)
§ Baldwin v. NY, 399 U.S. 117 (1970) – No offense can be deemed petty, thus dispensing with the 14th and 6th Amendments right to jury trial, where more than six months of incarceration is authorized)
§ Williams v. FL, 399 U.S. 78 (1970) – That jury at common law was composed of precisely 12 is an historical accident, unnecessary to effect the purpose of the jury system
· Harlan – Dissent – The internal logic of the “selective incorporation” doctrine cannot be respected if the Court is both committed to interpreting faithfully the meaning of the federal Bill of Rights and recognizing the governmental diversity that exists in this country.
o Flexibility for experimentation in the administration of justice should be returned to the States here and in other a
federal courts of jurisdiction – Pending or impending
· Kennedy joins Stevens 5-4
o Court interpreted that DTA did not have retroactive effect, therefore it could hear Hamdan
o Military commissions – were not legal because they were not consistent with UCMJ and Geneva Convention
§ Court Martial – Trial
– Congress cannot limit access to federal courts in a meaningful way
o Confront evidence and present a defense
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Chapter 4 The Right to Counsel
SECTION 1 – The Right to Appointed Counsel and Related Problems
– Powell v. AL, –
o “The right to be heard would be in many cases of little avail if it did not comprehend the right to be heard by counsel.”
o “Above all that Δs stood in peril of their lives.”
o “The failure of the trial court to give Δ reasonable time and opportunity to secure counsel was a clear denial of due process.”
o “The right to have counsel appointed is a logical corollary of the constitutional right to be heard by counsel.”
– Johnson v. Zerbst –
o The Sixth amendment guaranteed indigent federal Δs (at least all felony Δs) a right to appointed counsel.
– Betts v. Brady, 316 U.S. 455 (1942)
Chapter 5 The Role of Counsel
SECTION 2 – The Constitutional Division of Authority Over Defense Decisions
– Self-representation vs. Attorney Control
a. Prior to Faretta
i. Strategy/Tactics vs. Personal Decisions
1. Strategy – Decisions that lay within the exclusive province of the lawyer
a. Counsel had no obligation to consult with Δ about concerning these decisions
b. Counsel had no obligation to follow Δ’s wishes
2. Personal Choice – Counsel had to advise the client and abide by the client’s directions
