Criminal Procedure

1. Criminal Procedure Class Nine

2. Today’s Topics: Right to Counsel • Early Development • Contemporary Standards • Felonies • Misdemeanors • Scope • Critical Stage • Post Trial • Experts

3. Today’s Topics: Screening & Charging • Discretion • Police • Prosecutors • Non-Prosecution of Crime • Selective Prosecution

4. Today’s Topic: Grand Juries& Preliminary Hearings • Initial Considerations • Infamous Crimes • Constitutional Requirements? • Procedures • Evidence • Subpoena Power & Appearances • Preliminary Hearings

5. CHAPTER FIVE Right to Counsel

6. Sixth Amendment • “[I]n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for the defence.”

7. Early Developments • Johnson v. Zerbst • Held: Sixth Amendment requires counsel in Federal Court in all criminal proceeding, unless D waives • Court viewed as jurisdictional prerequisite

8. Early Developments • Powell v. Alabama • Predates Johnson v. Zerbst • “Scottsboro” case • “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.”

9. Query • Why does a person accused of crime need “the guiding hand of counsel at every step of the proceeding against him?” • If Court has duty to provide counsel, does D have duty to request it?

10. Contemporary Standards: Felonies • Gideon v. Wainwright • “Gideon’s Trumpet” by Anthony Lewis • Rejection of Betts v. Brady • “Obvious Truth” that in our adversary system of criminal justice, any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. • Why should denial of counsel be considered “structural error” rather than subject to harmless error analysis?

11. Determining Indigency • Gideon requires appointed counsel for indigents in felony cases • Indigency is not much of an “issue” in most jurisdictions • Typical mechanisms: • Pauper’s affidavits • Demonstrating eligibility for other government services • Conditioning probation on repayment of Court costs and fees to counsel

12. Contemporary Models: Delivering Indigent Defense • Public Defender • Ad Hoc Appointment • Mixed System • Texas Fair Defense Act, effective 1-1-02

13. Exercise • Identify a minimum of three advantages and disadvantages to each system

14. Contemporary Standards: Misdemeanors • Rule: Defendant may not be imprisoned for anyoffense unless he is represented by or waives a lawyer • Applies to Misdemeanors • Argersinger v. Hamlin • Scott v. Illinois

15. Interplay With Right to Jury Trial • Supreme Court has held there is no right to jury trial where the maximum potential imprisonment is six months or less • Query: Why did the Supreme Court not apply a similar rule to the right to counsel? • Practical considerations: Argersinger and Scott may require preliminary judgments by a prosecutor and/or trial judge concerning how likely a particular defendant is to be incarcerated if convicted

16. Exercise • Subsequent classes will discuss effective assistance of counsel at trial - - what it means and what its deprivation does to impact validity of conviction

17. Exercise • In terms of Scott, consider: • How is D supposed to present testimony? • Assuming D wants to testify, does he give narrative? Q & A? • Must D object to questions on cross? • If so, what is the effect of such objections likely to be in the event there is a jury? • If case is bench trail (to the trial court) how far can defendant go in arguing with the judge without prejudice in his defense?

18. Uncounseled Priors as Enhancement • Enhancement: Increasing the range of punishment for new offense, based on prior conviction

19. Uncounseled Priors as Enhancement • Illustration: “Three strikes you are out” statutes • Issue: Can conviction obtained at trial conducted without a lawyer be used to enhance punishment of person charged as second offender? • Nichols v. United States

20. Scope: “Critical Stage” • Gideon teaches that indigent has right to court-appointed lawyer at trial

21. Scope: “Critical Stage” • Issue: Are there other “critical stages” where right to counsel is required - - either prior to trial or after?

22. Scope: “Critical Stage” • Test for “critical stage”: Once there is a formal charge, D has right to counsel at any proceeding in court and at virtually any appearance anywhere • D may also have right to counsel if necessary to safeguard an independent constitutional right, such as in Miranda

23. Scope: “Critical Stage” • Courts will consider more than merely the label applied to the proceeding • Coleman v. Alabama

24. Scope: “Critical Stage” • CAUTION: Right to counsel has not been extended to all pretrial phases of criminal investigation • Remember, Kirby v. Illinois

25. Beginning Adversarial Proceedings • Formal Charge • Preliminary Hearing • Indictment • Information • Arraignment

26. Beginning Adversarial Proceedings • Analytical Key: Filing of some statement with Court having appropriate jurisdiction, expressing prosecutor’s beliefs that proceedings that will lead to conviction should begin

27. Post-Verdict • Principle: Right to counsel extended to certain stages of criminal prosecution following trial • Mempa v. Rhay (lawyer must be provided for revocation of probation or deferred sentencing) [later modified]

28. Post-Verdict • Douglas v. California (lawyer must be provided for first appeal) • Ross v. Moffitt (no counsel for subsequent, discretionary appeals or petitions to U.S. Supreme Court) • Murray v. Giarratano (no right to counsel for collateral attack) • CAUTION: Some states provide for death row inmates pursuing post-conviction habeas corpus

29. Significance of Finding no Right to Counsel • If no right to counsel, no right to effective assistance of counsel • Example: Errors of lawyers that occur after the first appeal as a matter of right create no constitutional claim • Pennsylvania v. Finley

30. Transcripts • Concept: If indigent defendant has right to appointed lawyer on the first appeal, she also has constitutional right to relevant transcript for purposes of appeal • Right applies even for conviction on appeal for ordinance punishable by fine only

31. Transcripts • Indigents cannot be require to pay appellate filing fee • Indigent entitled to preliminary hearing transcript free of charge

32. Probation and Parole Hearings • Despite Mempa, no absolute right to counsel • Only constitutional protection is due process right to proceeding that is fundamentally fair

33. Probation and Parole Hearings • Supreme Court requires case by case approach in probation revocation hearings • Rationale: Parole and probation hearings are more flexible proceedings than criminal trials • Gagnon v. Scarpelli • Morrissey v. Brewer

34. Juveniles • In Re Gault: Due process requires appointment of counsel in juvenile proceedings • Note: Labeling a proceeding “criminal”, “non-criminal” or “juvenile” will not always be dispositive • Possible analytical key: Adjudication of guilt

35. Experts • Court has treated access to experts similarly to access to free transcripts • Ake v. Oklahoma • Possible analytical key: Will D be deprived of fair opportunity to present defense if denied expert

36. Chapter Six Screeningand Charging

37. FederalProsecutors • United States attorneys for each district are responsible to the Attorney General of the United States • United States attorneys are appointed by President and confirmed by Senate • Decision about whether to appeal rulings by trial court may be also controlled by Solicitor General, who decides when to seek certiorari in Supreme Court • Process is somewhat centralized

38. State Prosecutors • Many states have systems that place enormous power in local prosecutor • Common for these prosecutors to be elected

39. State Prosecutors • Consequently, incentives of particular prosecutors’ office may be determined by voting preferences of community • In many states, the state Attorney General has very little power over the typical criminal case

40. Common Prosecutorial Themes • Vast differences among jurisdictions in allocation of prosecutorial authority • Vast differences among jurisdictions in how prosecutors are selected • Common Characteristics • Chief Prosecuting Official in given jurisdiction has large discretion to bring or refrain from bringing charges against particular people and organizations • Prosecutorial discretion continues even after initial charging decision

41. Discretion • Choices are made at all levels of criminal justice system • Some choices are controlled by standards

42. Discretion • Majority of choices have room for wide latitude • To a large extent these choices are “uncontrolled” in that people who make them are not bound to follow specific guidelines

43. Exercise: Full Enforcement • Query: How many have been stopped by police officers for traffic violation, prank, or some other act for which you could have been cited or arrested - - and were not? • Why do we have less than full enforcement of the law? • How do you square concept of individualized justice with theory of equal justice under law? Shouldn’t similar cases be treated alike?

44. Police Officer Discretion • Decision not to arrest is essentially unreviewable • Exercise: Scenario One, page 808. Question: Should office arrest?

45. Prosecutors • Consequence of decision to charge suspect with crime is greater than consequence of deciding whether to arrest

46. Prosecutors • Factors generally considered by prosecutor: • Suspect is guilty • Enough evidence to secure conviction • Community’s best interest served by prosecuting • ABA Standards recognize that prosecutors are not obligated to present all charges

47. Reality Check • Key factor in deciding whether to prosecute is a determination whether case can be won • Identify a minimum of three reasons influencing this factor

48. Special Prosecutors • Can private attorneys be appointed as special prosecutors? • Can a party benefiting from a court order serve as special prosecutor? • Can victim’s family hire “big gun” litigator as special prosecutor?

49. Non-Prosecution • Is prosecutor’s decision not to prosecute subject to judicial review? • What constitutional limitations are implicated in this query?

50. Selective Prosecution • Context: Who is selected, for what crime, in which jurisdiction • Background • Wayte v. United States • U.S. v. Armstrong (supplement)