Criminal Procedure Outline

In God I Trust.

v The Idea of Due Process

o Constitutional Decision Making

§ Duncan v. Louisiana

· Facts: ∆ convicted for simple battery without a jury trial. Simple battery carried a prison sentence not more than 2 years.

· Holding: The right to jury applies to states through the 14^th Amendment because this right is fundamental to the American scheme of justice. The jury system works to protect ∆s from overzealous prosecutors and biased or eccentric judges and also serves an accuracy function. The court doesn’t adopt total incorporation because that leads to problems with federalism. But court admits that there is a category of petty offenses which is not subject to 6^th Amendment protection

v Right to Counsel at Trial and on Appeal (Court trying to bring ∆s on equal footing with the state)

o 6^th Amendment: “In all criminal prosecutions, the accused shall enjoy the right to have the assistance of counsel for his defense.

o Right to Trial Counsel

§ Powell v. Alabama

· Supreme Court held that indigent ∆s have a constitutional right to an appointed lawyer in capital crimes cases and where a ∆ is incapable adequately of making his own defense because of ignorance, feeble-mindedness, illiteracy or the like. The court based its decision not on the 6^th Amendment but on the fact that in such cases, the absence of counsel was so prejudicial to the ∆s as to have rendered the trial fundamentally unfair.

§ Betts v. Brady

· Court refused to apply the 6^th Amendment right to appointed counsel to state trials. According to the court, the 6^th Amendment does not embody an inexorable command that no trail for any offense, or in any court, can be fairly conducted and justice accorded a ∆ who is not represented by counsel.

§ Gideon v. Wainwright

· Facts: ∆ sentenced to 5 years prison for robbery of a poolroom. ∆ requested counsel but court denied despite the fact that ∆ was indigent.

· Holding: Court ruled that in our adversary system, 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. Therefore, 6^th amendment which is incorporated through 14^th Amendment entitles indigent ∆s to right to counsel at least in felony cases.

§ Argersinger v. Hamlin

· Court held that absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified a petty, misdemeanor, or felony, unless he was represented by counsel at his trial. The legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more.

§ So after Argersinger, Judge has to decide whether ∆ will be going to prison or not.

§ Scott v. Illinois

· Facts: ∆ convicted of theft and fined $50. ∆ argued that since his crime could have led to 1 year of jail, he had to right to a counsel under Argersinger.

· Holding: Argersinger applies to cases where there is actual imprisonment involved. The court held that 6^th and 14^th Amendments to the Constitution require only that no indigent criminal defendant be sentenced to a term of imprisonment unless the state has afforded him the right to assistance of counsel. Adopting ∆’s view will place too much burden on the 50 states.

§ Nicholas v. US

· Facts: ∆ convicted for DUI in 1983 and fine, but no counsel. In 1990, ∆ convicted on federal drug charges and in sentencing phase, judge considered the DUI conviction and increased sentence by 2 years.

· Holding: Uncounseled convictions can be used to enhance sentences for subsequent crimes.

o Counsel on Appeal

§ Griffin v. Illinois

· Transcript was required for appeal and the SC held that in such situations, the state must provide free transcript for trial proceedings. According to the Court, even though the state is not required to have an appellate system or a right to appellate review at all, but once the state creates such system, it must provide equal justice to all.

§ Douglas v. California

· SC held that state must appoint a counsel in the first appeal of right. According to the Court, “where the merits of the one and only appeal an indigent has as of right are decided without the benefit of counsel, we think an unconstitutional line has been drawn between rich and poor.” Court used two possible justifications: equal protection and due process.

§ Ross v. Moffitt

· SC held that an indigent does not have a right to appointed counsel on his applications for discretionary review by the state supreme court or on his petition for certiorari to the USSC. According to the Court, discretionary appeals are accepted or rejected usually on the basis not of the likelihood that the original determination of guilt was wrong, but on the importance of legal issues involved. Also, ∆ already has the briefs written by his counsel form the first appeal. Equal protection does not require absolute equality.

§ Evitts v. Lucey

· Where ∆ has right to counsel on appeal, the assistance must be effective. In this case, ∆’s appointed counsel’s failure to file a required statement of appeal leading to dismissal of the appeal so clearly deprived him of effective assistance that he was entitled to a new trial.

o Effective assistance of counsel

§ Strickland v. Washington

· A ∆ whose lawyer has actually participated in trial must establish 2 prongs in order to sustain 6^th Amendment claim:

o That counsel’s performance was deficient in the sense that counsel was not a reasonably competent attorney; and

§ This prong is really hard to prove because ∆ must identify with precision the acts or omissions that he claims were unconstitutionally unreasonable. Also, ct. must see through the eyes of the lawyer at the time action taken.

o That the deficiencies in counsel’s performance were prejudicial to the defense, in the sense that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

· Strong presumption is given that the lawyer’s conduct was appropriate. No set guidelines to show that lawyer was incompetent.

§ Hill v. LockhartàIn guilty plea cases, in order to satisfy the prejudice requirement, ∆ must show that there is a reasonably probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.

o Self-Representation

§ Faretta v. California

· SC held that 6^th Amendment guarantees the right of a defendant to represent himself without counsel. The 6^th Amendment rights are personal to the accused and not to his counsel. Therefore, a ∆ can knowingly and intelligently waive his right to appointed counsel.

§ McKaskle v. Wiggins

· A defendant’s 6^th Amendment rights are not violated when a trial judge appoints a standby counsel- even over the defendant’s objection- to relieve the judge of the need to explain and enforce basic rules of courtroom. But defendant has to maintain the actual control over the presentation of his own defense at all times. The right to self-representation is not violated unless standby counsel substantially interferes with significant tactical decisions of the defendant, controls the questioning of witnesses, speaks in ∆’s place against her wishes on matters of importance , or in some other way destroys the jury’s perception that the ∆ is representing herself.

§ Anders v. California- an attorney who wishes to withdraw from a case after conviction on the grounds that an appeal would be wholly frivolous may request permission to do so but must file a brief referring to anything in the record that might support an appeal.

§ Jones v. Barnes- Counsel doesn’t have to raise every single issue on appeal that the client wants to raise.

§ Martinez v. Court of Appeal of California- ∆ does not have a constitutional right to dispense with the assistance of counsel on appeal.

o Critical Stages of the Proceedings

§ SC has held that the right to counsel applies at every critical stage of a criminal prosecution. Leads to 2 questions: what is criminal prosecution, and what is critical stage.

§ Criminal Prosecution begins for purposes of right to counsel when adversary judicial proceedings have been initiated and it continues throughout the sentencing process.

§ Eyewitness identification procedures

· A person has a 6^th Amendment constitutional right to counsel at any corporeal identification procedure conducted after, but not before, she has been indicted or equivalent adversary judicial criminal proceedings have commenced against her.

· If no counsel provided at post-indictment lineup, can’t produce evidence or testify. Also, prosecutor is prohibited from obtaining an in-court identification of the accused by the witness, unless the prosecutor proves by clear and convincing evidence that the in-court identification is not a fruit of the tainted out-of-court procedure.

· US v. Wade

o Ct. said that a person is entitled to counsel at all critical stages of a criminal proceeding. Defined critical stage as any stage of the prosecution, formal or informal, in court or out, where counsel’s absence might derogate from the accused’s right to a fair trial. A post-indictment identification is critical stage because the process is peculiarly riddled with innumerable dangers and variable factors which might seriously, even crucially, derogate from a fair trial.

o The court expressed the concern for the unreliability of eyewitness identification and the fact that it is seldom possible for defense attorneys if absent, to reconstruct the procedure in order to show the unfairness of the process.

· Kirby v. Illinois

o Ct. refused to extend the 6^th Amendment right to one-on-one pre-indictment confrontation.

§ Non-corporeal Identifications

· United States v. Ash

o Ct. held that a person against whom adversary judicial proceedings have been initiated is not entitled to the presence of counsel when the police display photographs. Defense attorney can reconstruct

§ Due process requires exclusion at trial identification was 1. unnecessarily suggestive and 2. conductive to mistaken identification. This right applies to corporeal, non-corporeal, pre & post indictment.

v Rise & Fall of Boyd

o This area covers the historical development relating the 4^th and 5^th Amendments.

o 4^th Amendment- The right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures 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 5^th Amendment- no person shall be compelled in any criminal case to be a witness against himself

o Boyd v. United States

§ An order of the District Court required the claimants to produce the invoice of the some disputed item in a suite for forfeiture.

§ Holding: A compulsory production of a man’s private papers to establish a criminal charge against him, or to forfeit his property, is within the scope of the 4^th Amendment in all cases in which a search and seizure would be; because it is a material ingredient, and effects the sole object and purpose of search and seizure.

o Gouled v. United States

§ Court ruled that search warrants may not be used as a means of gaining access to a man’s house or office and papers solely for the purpose of making search to secure evidence to be used against him in a criminal or penal proceeding, but that they may be resorted to only when a primary right to such search and seizure may be found in the interest which the public or the complainant may have in the property to be seized.

o Mere Evidence Rule: police can only seize: 1. a fruit of a crime, 2. an instrumentality of a crime, 3. contraband. This rule was based on property rights and said that in these three instances, government’s interest outweighed the property interest of the ∆.

o Warden v. Hayden- SC abolished the mere evidence rule. Nothing in the nature of property seized as mere evidence is more private than other types of property. Same item that constitutes evidence in one case might be a fruit or instrumentality in another.

II. The 4^th Amendment

The right of 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.

v 4^th Amendment Checklist

o Does D have standing to raise a 4^th Amendment challenge to the specific item of evidence in question?

o Did the police activity in question implicate a person, house, paper or effect?

o Did the police activity constitute a search and/or seizure?

o Was the search and/or seizure reasonable or unreasonable?

§ Did the police have adequate grounds to conduct the search and/or seizure?

§ Did the police act on the basis of a search warrant and/or arrest warrant?

o If yes to previous question, then ask:

§ Did the police conduct the search and/or seizure on the basis of a warrant later declared to be invalid?

· If yes, then consider “good-faith” exception.

§ Is there evidence that is a fruit of the poisonous tree?

· If yes, fruits of poisonous tree inadmissible subject to two exceptions: the inevitable discovery doctrine, and the attenuated-connection doctrine.

v The Exclusionary Rule

o Weeks v. United States- Court held that in federal trials, the 4^th Amendment bars the use of evidence unconstitutionally seized.

o Wolf v. Colorado- Court held that 4^th Amendment protections are basic to a free society and therefore applicable to the states. But according to the Court, the states don’t have to adopt the exclusionary rule because that is a judicial invention.

o Mapp v. Ohio

§ Facts: officer forcibly entered ∆’s house in order to search for a bombing suspect. Didn’t have warrant. Didn’t find suspect but found obscene material which was used as evidence in ∆’s conviction.

§ Holding: The 4^th Amendment exclusionary rule applies to state criminal trials. Exclusionary rule is a constitutional requirement and to hold otherwise, would be to grant the right to be free from unreasonable searches and seizures but without its privilege and enjoyment.

o Justifications for the exclusionary rule:

§ Deter police officers from engaging in unconstitutional conduct

§ Second justification is the imperative of judicial integrity (now this justification has all but disappeared)

v The Meaning of Searches and Seizures

o Search

§ 4^th Amendment prohibits against unreasonable searches.

§ Search has 2 historical phases- pre-1967 and post-1967

§ Pre-1967

· The justices generally treated 4^th Amendment issues as a property-focused inquiry

· Boyd v. U.S.- “It is not the breaking of his doors, and the rummaging of his drawers, that constitutes the essence of the 4^th Amendment offence; but it is the invasion o fhis indefeasible right of personal security, personal liberty, and private property…”

· So in order to violate 4^th Amendment, physical intrusion necessary!

§ Post-1967

· Katz v. United States- According to the Court, the 4^th Amendment protects people not places. Justice Harlan’s Concurring opinion: 1. the individual must have exhibited an actual expectation of privacy, and 2. the expectation he exhibited must be one that society is prepared to recognize as reasonable.

· After Katz, the Court has focused on the Objective part of the test. Court has usually considered 3 factors when applying the objective test: 1. the nature of the property, 2. the extent to which a person has taken measures to keep information, her property or an activity private, 3. degree of intrusion experienced by the police activity

· False Friends Technique

o United States v. White- a person does not have a justifiable and constitutionally protected expectation that a person with whom he is conversing will not then or later reveal the conversation to the police. Justices tolerance of this investigative technique is likel founded on their pragmatic recognition of the fact that the use of false friends is essential to the detection of otherwise inaccessible information about crime. Under White, no difference between pure false friend and wired false friend.

· Open Fields Exception

o Oliver v. United States- Police officer ignored no trespassing signs and crossed fences and observed marijuana which was not otherwise visible. Court said no search took place because one cannot have legitimate expectation of privacy in open fields. Open fields do not provide the setting for those intimate activities that the 4^th Amendment is intended to shelter from government interference or surveillance. Furthermore, police can observe fields from a helicopter of plane.

o Open field- land need to be neither open nor a field in all circumstances.

· Curtilage

o Curtilage is the land immediately surrounding and associated wit the home. Curtilage is protected under the Amendment.

o United States v. Dunn- 4 factors determine whether land curtilage:

§ The proximity of the land to the home

§ Whether the area is included within enclosures surrounding the house

§ The nature of the use to which the area is put

§ The steps taken by the resident to protect the land in question from observation.

· 4^th Amendment and new technology

o Court has held that pen registers installed to record phone #s a person dialed not search because not recording the content of the conversation but recording very limited information (Smith v. Maryland).

o United States v. Knotts- police installed beeper in a drum which ∆ bought. Police obtained the location of the drum and gained warrant. Court held that it was not search: 1. the beeper did not provide the police with any information that they could not have secured by visual surveillance from public places along ∆’s route. 2. The beeper had limited use in this case: it did not reveal information as to ∆’s movements within any private place.

o United States v. Karo- the beeper allowed the police to monitor the movement of a container inside various homes as well as public places. Court held that 4^th Amendment protected against use of the beeper located inside the house. “Indiscriminate monitoring of property that has been withdrawn from public view would present far too serious a threat to privacy interests in the home to escape entirely some sort of 4^th Amendment oversight.”

o Kyllo v. United States- Use of thermal-image device aimed at a private home form a public street to detect relative mounts of heat within the home constitutes a search within the 4^th Amendment. In the home, all details are intimate details, because the entire area is held safe from prying government eyes. So in home, all details are intimate and where the government uses a device that is not in general use to explore details of the home that wouldn’t be visible without the intrusion, a search has occurred.

· Aerial Surveillance

o Aerial non-sense-enhances surveillance valid if: 1. occurs from public navigable airspace, 2. is conducted in a physically nonintrusive manner, 3. does not reveal intimate activities traditionally connected with the use of a home or curtilage.

o California v. Ciraolo- Officer observed marijuana in ∆ backyard from 1000 feet in airplane. Court ruled the surveillance was not search even though curtilage.

o Florida v. Riley- Court said surveillance in helicopter at the height of 400 feet not search because even though planes at this height would violate FAA rules, but not helicopters and ∆ can expect that anyone in helicopter can observe marijuana on this curtilage. According to the court, it would have been a different case if flying at that altitude had been contrary to law or regulation.

· Dog Sniffs

o Supreme Court in United States v. Place held that exposure of ∆’s luggage, which was located in a public place, to a trained canine did not constitute a search. The information was secured in a comparatively nonintrusive manner, luggage was never opened. Also, information revealed by the test was extremely limited.

o In Bond v. US, the Ct. held that physical touching of luggage in a bus was search because of officer’s purpose. Dissent: effect and not purpose matters.

· California v. Greenwood

o Court held that ∆ didn’t have a reasonable expectation of privacy in the plaque garbage bag which was placed outside his curtilage.

o Seizure

§ Unless police conduct constitutes a seizure, the 4^th Amendment does not apply. If it is a seizure, then issue is whether seizure was reasonable. If seized property, then need a warrant based on probable cause, or a justification for not securing a warrant. If person, mostly must have arrest warrant. If arrest, must be supported by probable cause. If less intrusive seizures, reasonable suspicion is allowed in some circumstances.

§ Seizure of person

· Terry v. Ohio

o A person is seized by an officer, by means of physical force or show of authority, has in some way restrained his liberty.

o Seizure in following situations

§ When person ordered to stop so that he can be frisked or questioned

§ When person is intentionally shot by officer

§ Taken into custody and brought to police station for questioning or fingerprinting

§ Ordered to pull his automobile off the highway for questioning or to receive a traffic citation

§ Intentionally forced to stop his car by means of a roadblock (Brower v. County of Inyo)

· Florida v. Bostick- Inquiry is whether a reasonable person would feel fee to decline the officer’s requests or otherwise terminate the encounter. Subjective intent of officer-suspect not too important. Court said that Mendenhall rule that whether a reasonable person would feel free to leave is not applicable in this case because ∆ didn’t feel free to leave for reasons independent of the police conduct. ∆ had his luggage in bus and that was the reason he wouldn’t feel free to leave. So the correct inquiry was whether a reasonable person would feel free to terminate the encounter.

· In a recent 2002 case US v. Drayton, ct. held that the consent was voluntary and no seizure even though the officers, unlike Bostick, didn’t inform ∆ that he could refuse to talk to them.

· United States v. Mendenhall- Some factors to consider in applying the reasonable person test: 1. the threatening presence of several officers, the display of a weapon by an officer, some physical touching of the person of the citizen, or the sue of language or tone of voice indicating that compliance with the officer’s request might be compelled.

· Florida v. Royer- officers approached a passenger and asked for his drivers license and ticket. When spotted the discrepancy, they asked ∆ to accompany them to one room. Court held that the initial questioning was not seizure but the second part was seizure. The officers had ∆’s license and tickets and a reasonable person in such situation would not have felt free to leave.

§ Factory Sweeps- Court has applied questionable reasoning in holding that factory sweeps by INS officials is not seizure.

§ **In the reasonable person test, the Court assumes that a reasonable person is an innocent person who has nothing to hide.

§ Police Pursuits

· California v. Hodari D- According to the Court, a seizure requires either physical force, or, whether that is absent, submission to the assertion of authority. E.g. O chases D and yells stop, but D keeps runningà No seizure, even though a reasonable person would feel that he is not free to leave. But no seizure until D actually submits to O’s authority. O places his hand on D, D breaks away and runsàSeizure

· Dissent worries that officers can just chase people without reason in the hopes of gaining some evidence to start the seizure.

v Probable Cause and Warrants

o Probable Cause Standard

§ For there to be probable cause to arrest a person, it must be more likely than not that a violation of the law has been committed and the person to be arrested committed the violation.

§ For there be probable cause to search particular premises, it must be more likely than not that the specific items to be searched for are connected with criminal activities and these items will be found in the place to be searched.

§ Probable cause is an objective test! Subjective feelings or motivation of the officer is irrelevant.

§ Whren v. United States- an officer had probable cause to stop ∆ to issue traffic citation for turning without signaling and for speeding. The fact that the violation was rather trivial, it is very possible that officer stopped ∆ based on ∆’s race. Court stated that a search or seizure supported by probable cause is constituonally reasonable without regard to the officer’s motives for the action.

§ Informant Information

· Aguilar-Spinelli Two-Pronged Test

o The basis-of-knowledge prong- how did the informant get the information

§ Sometimes when basis-of-knowledge unknown, this prong can still be met under self-verifying detail.

§ Draper v. United States- the tip described the accused’s criminal activity in sufficient detail that the magistrate may know that he is relying on something more substantial than a casual rumor.

o The veracity prong

§ Officer must prove that the informant is reliable or that his information in the present case is reliable. Usually veracity met by showing the informant’s track record.

o Corroboration

§ If can’t meet the 2 prongs, info can still be use if police verifies the information.

· Illinois v. Gates

o Anonymous letter case. Court abandoned the 2 prong test of Spinelli. Even thou