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