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Criminal Procedure: Investigation
West Virginia University School of Law
Ashdown, Gerald G.

Crim Pro: Investigation – Ashdown Spring 2016
Basic Criminal Procedure Pattern
·         Crime
·         Investigation
·         Arrest
·         Booking
·         Initial Appearance
·         Preliminary Hearing
·         Grand Jury Indictment
·         Plea Hearing
·         Trial
Mostly Based on Constitutional Law (Up through Initial Appearance)
4th through 8th Amendments
Due Process Clause
Mostly Based on the Federal Rules of Criminal Procedure
Due Process Concerns
1.       Fundamental Fairness
2.       Incorporation
a.       Total – Justice Black
b.      Selective
The Burger Court and the Rehnquist Court ended up watering down constitutional rights on a federal level to accommodate state circumstances and concerns after Federal and State rights of accused were brought onto the same level with incorporation by the Warren Court.
The states responded to this by increasing the protections afforded to the accused in their own state constitutions
Then, in Michigan v. Long, the Supreme Court responded to this by requiring state's to have an “adequate, independent state ground” clearly stated and made absolutely clear when departing from the Supreme Court interpretation of a constitutional guarantee, and the Supreme Court will assume that the State was attempting to interpret the Federal Constitution. The state court must make a “plain and clear statement” that the state court is is relying on its own constitution and not the Federal Constitution.
Right to Counsel
·         Probation officer usually is one to decide who is eligible for appointed counsel
Betts v. Brady (US 1942)
·         Ruled that the Fourteenth Amendment does not embody an inexorable command that no trial for any offense, or in any court, can be fairly conducted and justice accorded a defendant who is not represented by counsel
·         Essentially says to look at the facts of every case to see if you get a lawyer
Gideon v. Wainwright (US 1963)
·         Sixth Amendment right to counsel is a fundamental right applied to the states via the Fourteenth Amendment and requires that indigent criminal defendants be provided counsel at trial
o    For a Felony
·         New court and new movement for incorporation
o    Moving away from the “fundamental fairness” approach
·         Overruled Betts
·         Court reviewed 30 cases between Betts and Gideon where states denied a lawyer to a defendant
o    So maybe the court was tired of reviewing all these cases, so they just required the states to furnish a lawyer in felony cases
·         Did not use one of the traditional methods of overruling
o    Justice Black favored total incorporation
·         Did not like the vagueness of “fundamental fairness” and that the states wouldn’t follow the approach
Argesinger v. Hamlin (US 1972)
·         Court holds that a criminal defendant may not be actually imprisoned unless provided with counsel
·         You can't actually imprison someone unless they were provided with counsel
·         Court focuses on the risk of “assembly-line justice”
·         Now we've evolved from Gideon to this, a misdemeanor with jail time ACTUALLY BEING IMPOSED requires that the defendant had been given counsel
·         Scott v. Illinois (US 1979) declined to extend Argesinger to cases where jail time is just a possible sentence
o    Scott wanted to extend the standard to require counsel anytime jail time was an authorized penalty
·         Could create a problem where judges are unable to use the jail time option when the state does not appoint counsel
o    The proposed standard by Scott could solve this
·         Nichols v. United States (US 1994) says that a “logical extension” of Scott is that an uncounseled conviction valid under Scott (no actual imprisonment) may be relied upon to enhance the sentence for a subsequent offense, even if that sentence entails imprisonment
Alabama v. Shelton (US 2002)
·         A suspended sentence that may result in incarceration may not be imposed if defendant did not have counsel at trial
·         Under the 6th Amendment, no person may be imprisoned for any offense unless the person was represented by counsel at trial; and the 6th Amendment inquiry trains on the stage of the proceedings where the defendant's guilt is adjudicated, eligibility for imprisonment established, and prison sentence determined
·         This is because the suspended sentence's activation is imprisonment imposed for the underlying offense, therefore is no different than imprisoning them originally for the same offense, which cannot be done if not represented by counsel
·         Now you can only get around Argesinger and Shelton through a Pretrial Diversion program
Rothgery v. Gillespie County (US 2008)
·         A criminal defendant's initial appearance before a judicial officer triggers attachment of the 6th Amendment right to counsel
·         Attachment does not require that a prosecutor (as distinct from a police officer) be aware of that initial proceeding or involved in the court
·         By this time, the defendant's relationship with the state has become “solidly adversarial”
·         Attachment occurs when the government has used the judicial machinery to signal a commitment to prosecute
·         Once this occurs, the accused is entitled to the presence of appointed counsel during any “critical stage” of the post-attachment proceedings
·         Counsel must be appointed within a reasonable time after attachment
Griffin v. Illinois (US 1956)
·         Defendants cannot be denied appeal because they cannot afford it
Douglas v. California (US 1963)
·         Denying defens

el was not functioning as the counsel guaranteed the defendant by the 6th amendment
2.       The defendant must show that the deficient performance prejudiced the defense (PREJUDICE)
                                       i.            This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable
                                     ii.            Judicial scrutiny of counsel's performance must be highly deferential
                                  iii.            Defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different
1.       A reasonable probability is a probability sufficient to undermine confidence in the outcome
·         The STANDARD for attorney performance is that of reasonably effective assistance
·         SEE NOTE CASES
AEDPA  § 2254(d)
·         Special review standard for federal habeas cases when the state court considered and rejected on the merits the constitutional claim at issue
·         The issue is whether the state court's application of governing Supreme Court precedent was “objectively unreasonable
·         “Unreasonable application of clearly established law”
·         State level habeas corpus you don’t have to make the showing that the court applied the standard unreasonably
Harrington v. Richter (Supreme Court 2011)
·         Richter argued his IAC claim on the basis that his counsel was deficient for failing to present expert testimony on serology, pathology, and blood spatter patterns
·         State court must be granted a deference and latitude that are not in operation when the case involves review under Strickland
·         State court's determination lacks merit if “fair-minded jurists could disagree” on the correctness of the state court's decision
·         When § 2254(d) applies, the question is not whether counsel's actions were reasonable, it is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard
·         There is a strong presumption that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than sheer neglect