Criminal Procedure 2001
Exam room 115 physical science Friday the 20th.
Background cb 1-59
Probably the most useful Constitutional law course offered next to the 1st Amendment.
Article II grants/restricts Executive/Police powers
From violation of statutes or even Constitution.
How limited are the powers of law enforcement?
Crim Pro are the procedures used to enforce the substantive criminal law.
4th amendment will be more than ½ of course – searches and seizures
Espouses rights of the citizens to be secure Persons/Houses/papers/effects from Unreasonable searches&seizures.
Not protected from all searches and seizures. Ie those that are reasonable. Police owe a “duty” to do
reasonable s/s .
Probable cause must exist to do a search or seizure BY an officer not another private citizen with a warrant.
Abuse of powers will also be a big portion of this course. ie in arrests…..
Consent to do something dismisses/eliminates the subsequent claim.
Exclusionary rule of 4th amendment in reference to evidence.
8th amendment no Cruel AND unusual punishment and no excessive bail
6th amendment right to …trial by unbiased jury and of confrontation (to be informed of nature and cause of accusation),
right to the assistance of counsel (
5th amendment double jeopardy (a little), privilege against self-incrimination, fed due process clause
INCORPORATION of B.O.R. into State court criminal proceedings was an evolution. NOT a TOTAL incorporation.
because of “ordered liberty” or “fundamental rights”
Those incorporated =
4th search and seizure and exclusionary rule of evidence
5th double jeopardy, self-incrimination
6th counsel, speedy and jury and public trial, right to confront adverse witnesses, compulsory witnesses, notice
8th cruel and unusual punishment
Prosecution by Grand Jury under 5th is NOT required of the states
8th right to Bail??? not held yet
Constitution only specified what Fed Gov’t COULD do. 1787
Bill Of Rights- Federalists fought the BOR, while Anti federalists like Jefferson fought FOR the B.O.R.
1791
Madison’s papers showed his trust of Gov’t…………………….
Colonists hated the King’s unannounced searches of their homes and wanted a way to restrict this from happening.
DEMOCRACY – people should have the right to decide what they are wanting
vs
LIBERTY – some rights should not be able to be taken away
BOR did not protect everyone. Ie women until 19th amend in 1920’s, Native Americans were alien people in
their own lands – took 135 years for NA to become citizens, Blacks Slavery protected for 78 years
under the BOR as the Constitutional 3/5ths.
HANDOUT 1-22
POWELL v ALABAMA, 287 US 45 (1932) Scottsboro defendants
FACTS:Originally arrested only for assault and attempted murder.
1 woman named 6 men and sheriff said “others must have had other woman”
white media used this as a propaganda to show the savage nature of blacks to white male America
Petitioners ∆s appeal a rape conviction and death sentence. ∆s are 9 black men tried in three trials for
the “rape” of twowhite women (which they actually did not commit). The court is only willing to review the
second of the assignments – the denial of right of counsel with the accustomed incidents of
consultation and opportunity of preparation of trial. Mr. Roddy (TN) and Mr.Moody(AL) end up
being the defense counsel. Mr. Moody was essentially a bystander. No motions for continuance by
defense. Prosecution moved for severance to 3 trials each taking only one day. Defense lawyers
screwed up and didn’t ask as dissent suggests.
ISSUE:Was the trial court’s appointment of the BAR as counsel for arraignment and the allowance of Mr.
Roddy from Tennessee to volunteer to help sufficient to satisfy the right to counsel requirement to in
turn satisfy the due process requirement of the 14th amendment? seeking to deprive 9∆s of life and
liberty
HELD:NO it was not sufficient. Note the 6th amendment not mentioned
any person facing the death penalty who can not afford lawyer is entitled to have one appointed
Ration:The trial court had the duty to see that ∆s are Not denied any necessary incident of a fair trial. as
the opportunity to prepare and represent them since the presumption of innocence.
FIRST:Fed Constitution?
Only 6 days after the indictments, the trial began. The state said “yes” and no answer from ∆s.
At that time Mr. Roddy a Tennessee lawyer offered to appear with the counsel that the court
would appoint. Prior the Judge appointed “all the members of the bar” for
“arraigning the defendants”.
The appointment of the BAR was only an expansive gesture with no obligation upon anyone.
Thoroughgoing investigation and preparation were vitally important which ∆s not get.
Proper representation requires also preparing to represent a client which Mr.Roddy
did not prepare.
Therefore, the circumstances show ∆s not accorded and substantial right of counsel.
SECOND: Alabama Constitution provides ∆ will enjoy assistance of counsel in capital cases and that
Mr.Roddy satisfied the State Constitutions requirement and the US Sup Ct can not change
that decision. BUT, the US Sup Ct can decide if the denial of assistance of counsel
contravenes the due process clause of the 14th amendment!!!
Fed sup ct can only interfere if the state law is federally unconstitutional
NEVER has it been doubted by Sup Ct that NOTICE and HEARING are preliminary steps
ESSENTIAL to the passing of an enforceable judgment AND that they together with
JURISDICTION constitute the basic elements of constitutional requirements of due process.
Given the previous facts and that a HEARING includes the right to the aid of counsel when
desired and provided by the party asserting the right, then the FAILURE of the trial court to
give reasonable time and Opportunity to secure counsel was a clear denial of due process.
THIS must be on a Case-by-Case basis. law of the land … must hear before it condemns…The
duty of the court to provide counsel is not discharged because of preclusion of ability to
prepare. must assign counsel whether requested or not….
BRUTALITY and VIOLENCE in obtaining a confession
BROWN v MISSISSIPPI, 297 US 278 (1936)
FACTS:Brown and two others were beaten and tortured in order to get them to write and sign confessions
verbatim as dictated to them. It was a well known and open fact that the Deputy and others only
obtained the confessions through this torture; but the trial court refused to strike the confessions as
not admissible evidence. The confessions were the State’s ONLY evidence to convict the ∆s.
The State Sup Ct “reviewed” the federal question of a violation of due process, but declined to
enforce petitioner’s rights. Ellington was first tortured and hung from a tree.
The US Sup Ct did not write an original opinion, it mostly quoted the State’s Dissenting Justice.
ISSUE:Is the obtaining of a conviction through compulsory self-incrimination by torture protected under
constitutional due process as the state sup ct held it was?
HELD:NO it is not protected. confessions typically prosecuted under the 5th amendment.
Ration:The confessions were the Only evidence to convict the ∆s. Whereas the State is free to regulate
procedure in accordance with its own conceptions of policy, it must still adhere to the basics
of the 14th Amendment. A “rack and torture chamber may not be substituted” for the witness stand.
The duty of maintaining constitutional rights of a person on trial for his life rises ABOVE mere rules
of procedure and……
1990’s Amadou Diallo and Abner Lovima and “driving while black” shows that racial profiling still happens.
Cultural problem that the police ARE the LAW.
ROCHIN v CALIFORNIA 342 US 165 (1952)
Rochin swallows two morphine capsules after police “enter” Rochin’s home based on “some information”
Police take Rochin to hospital and forcible extract the Morphine and use it as evidence to convict him.
4th amendment for “unreasonable search and seizure” is the basis of Majority opinion.
5th amendment violated for self-incrimination in the concurring opinion of J.Black
but 5th is subsequently limited in other cases.
4th, 5th, 6th, 8th, fail, then look to the 14th amendment.
IRVINE v CALIFORNIA (1954)
Footnote a pg 42. limited Rochin to situations involving coercion, violence, or brutality NOT microphones
BRETHAUPT v ABRAM (1957)
Man is unconscious after “causing” car accident and does not consent to the taking of his blood.
evidence evanesces (disappears)
BASED on the reasonableness of the CIRCUMSTANCES. Since giving blood is often voluntary, then a
physician giving a protective eye is not unreasonable.
SCHMERBER cb 43(1) taking of blood does not offend “that sense of justice” reaffirming Breithaupt
(2) he did not testify therefore 5th not apply to him for self-incrimination
THEREFORE, compulsory self-incrimination can be allowed
LEWIS cb44 “only a purpose to cause harm unrelated to the legitimate object of arrest will satisfy the element
of arbitrary conduct Shocking to the conscious NECESSARY for a DUE PROCESS VIOLATION.
4th amendment only applies to searches and seizures and they must be Unreasonable (k-9’s are not searching)
Sup ct must decide in retroactivity if Decision applies to only all cases from that day forward OR to any case
still in the criminal justice system.
Usually new rules on constitutional criminal procedure apply only when your case is final and complete.
Federal supervisory power- SC has adopted Fed Rules of Crim Procedure requiring jury by 12 and unanimous verdicts
McNABB v US
US v PAYNOR – documents from someone else’s stolen briefcase used to convict him, therefore Paynor did
not have standing under 4th amendment.
In each case brought in state courts TWO Constitutions apply – State and Federal (fed is absolute Minimum of rights
States can only provide more protection to it’s citizens than afforded under SupCt’s rulings
Exclusionary rule PURPOSE is to deter improper police conduct (to be covered more later)
Chap 3 RIGHT to COUNSEL
Gov’t obliged to provide counsel to someone in need.
“Poverty” defined loosely as a relative concept that can arise at any stage of criminal proceedings
where defendant inhibited or prevented from proper assertion of right or a claim of a right
Oklahoma holds if you make bail, you don’t get right to counsel as indigent appointed counsel
OK gives no right to expert testimony. Must have lawyer request court to pay for it.
“Equal Justice” Gov’t may be required to minimize the influence of poverty on its adimn of justice
Must do all possible to eliminate “discrimination” against a class of accused persons
Free counsel has grown to 80% of cases thus straining justice system.
Gov’t recoupment is allowed where a ∆ is no longer indigent and not subjected to “manifest hardship’
§1 the right to appointed counsel and related problems
BETTS v BRADY 316 US 455 (1942) REVERSED by GIDEON v WAINWRIGHT 1963
Rule of Law: the right to counsel is not fully applicable to the states because the 6th amendment’s guarantee of
counsel is not Completely incorporated by the 14th amendment, but the failure to appoint counsel is a
violation of Due Process, IF, under the circumstances of the case it results in a conviction that is
lacking in fundamental fairness.
FACTS:Betts was an indigent unemployed farmhand. Avg intelligence but uneducated.
He was indicted for Robbery, requested counsel, but was denied.
State told Betts that counsel was only provided for rape and Murder.
Betts had a bench trial where he presented an alibi, but was convicted and sentenced to 8 years.
ISSUE:Was the State’s failure to appoint counsel for an indigent ∆ a violation of 14th amend Due Process
HELD:NO. distinguishable from Scottsboro case. Capital v non-capital case – state v federal
Ration:6th amend not fully incorporated under 14th amend and 6th applies to FEDERAL cases. This not a
fed case therefore asserted denial is to be tested by an appraisal of the totality of Facts case by case.
Counsel is NOT a fundamental Right necessary for a fair trial….HA HA
Procedural Due Process of the Const Mandate that ∆ entitled to notice and right to be heard if Gov’t
acts so as to deny a citizen of Life, Liberty, or Property interest.
Dissent:JBlack: Little education. 14th IS applicable to states 100%. Counsel is Fundamental right…
respected courts must give right to defend. BLACK is Majority writer for Gideon.
Still have an Absolute right to retain counsel in ANY case.
GIDEON v WAINWRIGHT 372 us 335 (1963)cb PAGE 67
Rule of Law: The right to counsel IS a right that is “fundamental and essential to a fair trial” through 14th am.
FACTS:Gideon convicted of Non Capital felony (breaking and entering into a pool room w/ intent…) after
Florida court refused to appoint him counsel. Floridaonly mandated counsel in Capital cases. His writ
of Habeas Corpus was denied but USSCt grants cert to consider if the denial of counsel was
unconstitutional. SC gives a lawyer (Fortas) to pursue the cert and acquitted.
ISSUE:Is the right to counsel a fundamental right that applies to the states through the 14th amendment.
HELD:YES Counsel is of vital importance as is “thoroughgoing investigation and preparation”
Ration:J.BLACK – Because adequate counsel is necessary (“fundamental and essential”) “to a fair trial”, the
Bill of Rights provision does apply to the States through the 14th amendment.
Counsel is a FUNDAMENTAL right and BETTS was wrong
Concur: J.Clark – Due process deprived of “liberty” or Life without a capital/nonCapital distinction.
Concur:J.Harlan – Felt BETTS was still good law because it provided for “special circumstances”
ARGERSINGER v HAMLIN Page 71 407 US 25 (1972)
Used non-petty standard because only non-petty charges allowed a jury trial. Petty charges got no jury.
Struck down Florida rule requiring counsel be appointed only “for non-petty offenses punishable by more than 6 months imprisonment,” AND
“Absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as
petty, misdemeanor, or felony unless he was represented by counsel”
SCOTT v ILLINOIS 1979 – court declined to extend ARGERSINGER 5-4 vote – Scott convicted of crime (shoplifting) punishable by
up to $500 &/or 1 year in Jail – Scott sentenced to only $50 no jail time – “6th and 14th amendments require
only that no indigent criminal defendant be sentenced to a term of imprisonment unless the State afforded him
the right to assistance of appointed counsel in his defense.”
right to counsel applies attaches (note even if you have a right as below) only when State seeks to imprison you.
DISSENT: ARGERSINGER 2 dimensional test: 1) Non Petty offenses only (2) where any incarceration POSSIBLE
BALDASAR v ILLINOIS 1983
NICHOLS v US – a court CAN use a prior conviction which ∆ had no Counsel to ENHANCE the sentencing under a subsequent
conviction WITH counsel.
WHEN DOES THE RIGHT TO COUNSEL BEGIN? cb75 WHEN is it triggered
Answer = only at a (1) CRITICAL STAGE of (2) the PROSECUTION.
- does not begin even when Arrested or when becomes a Suspect ABSENT “interrogation” or its
equivalent.
-6th Amend right to counsel triggered by the initiation of adversarial judicial proceedings
such as formal charge, preliminary hearing, indictment, information, or arraignment (KIRBY v ILLINOIS)
-5th amend right to counsel 2 of 4 Miranda trigger – interrogation and appointed
Custody of suspect and being interrogated. (right against self-incrimination)
U.S. v GOUVEIA 1984 – reaffirmed that one does not become an “accused” for right to counsel to attach purposes simply because
he has been placed in administrative detention by Gov’t authorities CONTEMPLATING filing charges against him.
- “no right to a pre-indictment private investigator”
§2 GRIFFIN – DOUGLAS “Equality” principle
GRIFFIN v ILLINOIS – No majority opinion of the court. Only indigent ∆ furnished a transcript free for capital crimes.
MAYER v CHICAGO 1971 – “Griffin does not represent a balance between the needs of the accused and the interests of society; its principle is a flat
prohibition against pricing indigent ∆ out of as effective an appeal as would be available to others able to pay their own way.
DOUGLAS – 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
ROSS – There is NO constitutional right to appointed counsel for discretionary appellate proceedings
DOUGLAS v CALIFORNIA 372 US 353 (1963) cb 80
FACTS:∆ convicted in a State proceeding. ∆ requested appointed counsel for appeal because of his indigence
but was denied. Calif gives ONE appeal as a matter of right to ALL criminal convictions. The
appellate court reviewed the RECORD and ruled appointed counsel would not help ∆ or the court; just
as prior Calif. precedent did.
ISSUE:Is an indigent entitled to appointed counsel to assist in preparing an appeal that is granted as a matter
of right?
HELD:YES as a matter of Due Process.
Ration:This is still a case of discrimination against indigent/poor ∆s. The discrimination is between cases
where the rich man can REQUIRE the court to listen to argument of counsel before deciding appeal on
the merits, but a poor man cannot.
Poor man has no “champion”. Appeal becomes a “meaningless ritual” for the indigent.
Rich man can focus on appealable issues and raise hidden objections to the conduction of trial.
Dissent:J.Clark – 96% of appeals are shown to be frivolous. Appointment of counsel would be a waste of
a state’s limited resources.
J.Harlan – (and J.Stewart) Appeal and transcript ARE afforded to ALL convictions.
State need not fund frivolous appeals.
Equal Protection: Does not impose on States an affirmative duty to lift the handicaps flowing from differences in
economic circumstances.
Due Process: ∆ is guaranteed full consideration on appeal.
it behooves a ∆ attorney to make objections to get on the record to try and preserve right to claim errors.
ROSS v MOFFITT 417 US 600 (1974) cb 84
FACTS:Ross was convicted of Forgery in NC. He appealed with counsel and lost. He was denied
appointed counsel in his appeal to the Sup Ct of NC. The appeal to the SupCt of NC is a discretionary
appeal. USSC grants cert.
ISSUE:is there a constitutional right to appointed counsel for discretionary appellate proceedings?
HELD:NO
Ration:Trial stage the State is responsible to ensure the ∆s rights are protected. Because the State actively
is seeking to convict the ∆, it is only fair to guarantee appointed counsel. But on appeal, it is the ∆
who initiates the proceedings to challenge the ruling of the lower court. There is no longer a need to