~ Constitutional Criminal Procedure Outline ~ Fall 2008 ~ Prof. Bradley

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1 ~ Constitutional Criminal Procedure Outline ~ Fall 2008 ~ Prof. Bradley Relevant Portions of the Constitution o Fourth Amendment Protection from unreasonable search and seizure. The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. o Fifth Amendment due process, double jeopardy, self-incrimination, eminent domain. No person shall be held to answer for any capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation. o Sixth Amendment Trial by jury and rights of the accused; Confrontation Clause, speedy trial, public trial, right to counsel In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district where in the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense. o Fourteenth Amendment - Due Process Clause No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

2 Incorporation o Total Incorporation Incorporator is the Due Process Clause Incorporatees are the amendments 4th, 5th, & 6th amendment Prior to Due Process clause and prior to incorporation of Bill of Rights provisions Were state criminal justice systems obliged to follow them?no, not technically o Selective Incorporation Some provisions of the bill of rights are not incorporated and apply to the states but not all Examples of unincorporated Grand Jury Indictments 8th amendment Excessive Bail 6th amendment jury from the vicinage Constraints of the amendments thereby depend upon which jurisdiction is involved Once incorporated - what is the right amount? o For example: Right to Counsel, what are the essentials and what can we ignore? o What is meant by incorporating jot for jot?make the state follow all the details o Free-standing Due Process Fundamental Fairness - (Powell & Frankfurter) Does it violate due process? Due Process - the protection of private rights, such as the right to a fair trial, during a legal proceeding in accordance with stated rules and principles Interpret the due process clause in and of itself What does due process require? Interpret just the 14th amendment and what is fair given that interpretation as regards the other amendments Relationship between Due Process and Bill of Rights, the due process clause has limited operation beyond the text of the amendments i.e. must violate both the amendment and the due process clause o Is there a benefit to allowing local courts to interpret amendments and what is included with them differently? Federalism Different local needs o Duncan v. Louisiana pg 25 o Baldwin v. New York pg 28 o Williams v. Florida pg 28 o The Problem of Bodily Extractions: Another Look at the Due Process and Selective Incorporation Approaches

3 Rochin v. California pg 31, Breithaupt v. Abram pg 32, Schmerber v. California pg 33, County of Sacremento v. Lewis pg 34 THE RIGHTS TO APPOINTED COUNSEL AND RELATED PROBLEMS (pg 79-93) o RULE: The sixth amendment guarantees a right to counsel; however, that right to counsel attaches only during trial or at a "critical stage" in the proceedings; indictment and beyond. Only after the initiation of adversarial proceedings. Collateral consequences that are not imprisonment attach LIBERTY AND ITS LOSS DRIVING EVERYTHING o Powell v. Alabama (1932) Incorporated right to be heard by counsel for capital crimes on the state level Denial of counsel in such cases = denial of due process Special circumstances rule: In Powell, not appointing counsel because the common man can't handle a defense on their own but that here there were special circumstances at play that made it particularly unfair for these boys not to have appointed counsel Without counsel, the question becomes is this even a trial? o No adversarial proceedings = sham proceedings/railroading o Johnson v. Zerbst(1938): indigent, federal, felony defendants have right to appointed counsel First case to require APPOINTED counsel through reading of the 6th amendment o Betts v. Brady (1942) pg. 80 Counsel is not a fundamental right when defendant is deemed confident to defend themselves Otherwise every traffic court violation would require appointed counsel which would put a huge burden on the state Black, Douglas, Murphy dissent: If this were a case coming from a federal court, we would have to reverse due to fundamental fairness requirements so it should be the same here o Hamilton v. Alabama (1961): requirement of counsel for capital cases extends to capital arraignments o Chandler v. Fretag (1954): Right to your own counsel is unqualified (paid for by defendant not appointed) o Gideon v. Wainwright (1963) pg. 83 Defendant put up the best case a laymen could have been expected to but because of the nature of the system, a jury found him guilty and if he had sufficient counsel the facts of the case implied he had an excellent chance of being found not guilty "court in Betts was wrong in concluding that the Sixth Amendment's guarantee of counsel is not one of these fundamental rights."

4 HARLAN, concurring, Betts made sense given the jurisprudence of the cases prior and should not be so harshly criticized but agree it should be overruled Lawyers are deemed essential by state prosecutions and by defendants who can afford them which implies that "lawyers in criminal courts are necessities, not luxuries." o Argersinger v. Hamlin (1972) pg 86 Struck down Florida rule which only appointed counsel for non-petty offensives punishable by more than 6 months in prison "counsel may well be necessary for a fair trial even in a petty offense" o No imprisonment without counsel Concurring opinion by Powell & Rehnquist: Three general factors to be weighed by judges in deciding if counsel is needed: o the complexity of the offense charged o the probable sentence to follow the conviction o Individual factors peculiar to the case i.e. competency o Scott v. Illinois (1979) pg 88 Actual imprisonment is the defining line whereby counsel would be required Not mere possibility of imprisonment Brennan, Marshalls, & Stevens dissent: difference between "petty" and mere regulatory offenses o Carries a moral stigma and conviction has different social indicators Job prospects, moral depravity assumed etc. o Nicolas v. United States (1994) pg 90: Even though DUI case did not receive counsel, it's resulting conviction could be used to exacerbate sentence of a later federal offense o Alabama v. Shelton (2002)pg. 90 Suspended sentence equates to prison term "Deprived of counsel when tried, convicted, and sentenced and unable to challenge the original judgment at a subsequent probation revocation hearing, a defendant in Shelton's circumstances faces incarceration on a conviction that has never been subject to the crucible of meaningful adversarial testing" Scalia, Rehnquist, Kennedy, Thomas dissent: Not the issue we are trying, would be different if the state does ultimately attempt to imprison him o The Beginnings of the Right to Counsel: Herein of Criminal Prosecutions and Critical Stages United States v. Gouveia pg 93 What are the different types of proceedings? o Preliminary Hearing:The preliminary hearing is scheduled in all felony cases within three to ten days of defendant's arrest. At this hearing the Commonwealth must establish that there is enough evidence to hold the defendant for trial in Common Pleas Court. If the case is "held for court" the witnesses will be required to appear at the trial in the Criminal Justice Center.

5 o Arraignment: At arraignment the defendant is formally charged with the crime and given a date for trial. Arraignments are held approximately two weeks after the preliminary hearing. No witnesses appear at this listing of the case. After the arraignment, witnesses are notified by mail of the trial date. o Trial: At the trial in Common Pleas Court, the Assistant District Attorney will present all the facts of the case to the judge and/or the jury. This will include testimony from the victim, witnesses and the police officers involved in the case. At this time the judge and/or jury will decide whether the defendant is guilty or not guilty, based on the testimony heard that day. If that case is a misdemeanor, a witness' first appearance will be for the actual trial in Municipal Court. o Sentencing: In misdemeanor cases, the defendant is usually sentenced on the same day as the trial. In felony cases, the sentencing is usually set for a later date. A victim is not required to appear at the sentencing; however, they are encouraged to attend. THE ROLE OF COUNSEL (pg ) o Waiver of the Right to Counsel; The Right to Proceed Pro Se Faretta v. California (1975) pg 115 Charged with grand theft auto, D wants to represent self, judge rules that he has no constitutional right to conduct his own defense. Judge proceeded to appoint a public defender against D's wishes Right to defend is given directly to the accused as it is he who will suffer the consequences of the outcome of his defense Counsel as a tool available to the willing defendant NOT imposed on him by the state o "one thing to say a right to counsel and another to say state may compel a D to take an attorney he does not want Must knowingly and intelligently forego counsel (Johnson v. Zerbst) o but skill and knowledge of a lawyer is not required to proceed pro se Martinez v. Court of Appeals of California (2000) pg 119: Faretta does not apply to appeals o Autonomy interests are less compelling on an appellate level o No constitutional right to appeal means no constitutional guarantee of counsel at said appeal Standby Counsel: McKaskle v. Wiggins (1984) pg 121: a D's rights aren't violated when standby counsel is appointed despite a request. Indiana v. Edwards 128 S. Ct (July 19,2008) State may appoint counsel against defendant's wishes if D is not mentally competent enough to proceed pro se despite being mentally competent enough to stand trial

6 THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL (pg ) o Strickland v. Washington pg 144 o Kimmelman v. Morrison pg 157 o Nix v. Whiteside pg 159 o Yarborough v. Gentry pg 161 o Duty to Investigate in Capital Cases o Strickland Exceptions pg 176 United States v. Cronic pg 177 Bell v. Cone pg 178

7 LINEUPS, SHOWUPS, AND OTHER PRE-TRIAL IDENTIFICATION PROCEDURES (pg ) o Wade & Gilbert: Constitutional Concern About the Dangers Involved in Eyewitness Identifications pg 745 United States v. Wade pg 745 Stovall v. Denno pg 754 Eyewitness Provisions of the 1968 Crime Control Act pg 754 o The Court Retreats: Kirby & Ash pg 755 Kirby v. Illinois pg 755 Moore v. Illinois pg 757 United States v. Ash pg 758 o Due Process & Other Limitations Stovall v. Denno pg 762 Manson v. Braithwaite pg 763 Duke Lacrosse pg 769

8 The Right to Counsel and the Analogy of Accusatorial, Adversary Trial pg 551 o Crooker v. California pg 551 o Cicenia v. La Gay pg 551 o Spano v. New York pg 551 Massiah and Escobedo: The Court Closes in on the Confession Problem pg 552 o Massiah v. United States pg 552 o Escobedo v. Illinois pg 554 MASSIAH REVISTED; MASSIAH & MIRANDA COMPARED AND CONTRASTED ( pg ) o The Revivification of Massiah Brewer v. Williams (Williams I) pg 722 United States v. Fellers pg 728 Patterson v. Illinois pg 729 Maine v. Moulton pg 733 o Passive v. Active Secret Agents United States v. Henry pg 734 Kuhlmann v. Wilson pg 735 o Texas v. Cobb pg 738 The Interests Protected by the Due Process Voluntariness or Totality of the Circumstances Test for Admitting Confessions pg Miranda v. Arizona pg 566 o The English Warnings o Justice Kennedy s Question about Miranda s Constitutional Status o Can (Did) Congress Repeal Miranda? o Four Decades with Miranda: An Overview Michigan v. Tucker pg 587 New York v. Quarles pg 588 Oregon v. Elstad pg 588

9 State v. McKnight pg 588 Duckworth v. Eagan pg 589 Colorado v. Spring pg 592 Beckwith v. United States pg 593 o Yarborough v. Alvarado pg 600 o Rhode Island v. Innis pg 600 Arizona v. Mauro pg 605 o Illinois v. Perkins pg 607 o Pennsylvania v. Muniz pg 609 o United States v. Velarde-Gomez pg 612 o Hiibel v. Sixth Judicial Court pg 613 o New York v. Quarles pg 614 o Meeting the Heavy Burden or demonstrating waiver pg 622 Implied Waiver: North Carolina v. Butler pg 625 Qualified or Conditional Waiver: Connecticut v. Barrett pg 627 o What Constitutes Invocation of Miranda Rights pg 628 Fare v. Michael C. pg 628 o The Scope of Second-Level Miranda Safeguards Michigan v. Mosley pg 629 Edwards v. Arizona pg 630 Arizona v. Roberson pg 631 Minnick v. Mississippi pg 632 o Initiation Further Conversation: Oregon v. Bradshaw pg 634 o How Direct Must Invocation Be: Davis v. United States pg 638 o Sixth Amendment compared Michigan v. Jackson pg 641 McNeil v. Wisconsin pg 641 o Anticipatory invocation of Miranda o Failure to Inform a Lawyer is trying to see suspect: Moran v. Burbine pg 643 The Due Process - Voluntariness Test Revisited (pg ) o Miller v. Fenton pg 701, 703 o Bram v. United States pg 708 o United States v. LeBrun pg 709 o Arizona v. Fulminante pg 710 o Colorado v. Connelly pg 711