~ 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,
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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.
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.
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.
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.
• 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
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provisions
• Were state criminal justice systems obliged to follow them?No, not
technically
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
Free-standing Due Process Fundamental Fairness - (Powell & Frankfurter)
Does it violate due process?
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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
Is there a benefit to allowing local courts to interpret amendments and what is included
with them differently?
Federalism
Different local needs
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Duncan v. Louisiana pg 25
Baldwin v. New York pg 28
Williams v. Florida pg 28
The Problem of Bodily Extractions: Another Look at the “Due
Process” and “Selective Incorporation Approaches”
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
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proceedings; indictment and beyond.
Only after the initiation of adversarial proceedings.
Collateral consequences that are not imprisonment attach
LIBERTY AND ITS LOSS DRIVING EVERYTHING
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
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
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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
Hamilton v. Alabama (1961): requirement of counsel for capital cases extends to
capital arraignments
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."
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."
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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
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"counsel may well be necessary for a fair trial even in a petty offense"
o No imprisonment without counsel
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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
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mere regulatory offenses
o Carries a moral stigma and conviction has different social
indicators
Job prospects, moral depravity assumed etc.
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
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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.
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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.
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.
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.
Arraignment:
• THE ROLE OF COUNSEL (pg 115-124)
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
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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. 2379 (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
• THE RIGHT TO “EFFECTIVE” ASSISTANCE OF COUNSEL (pg 144165)
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
• LINEUPS, SHOWUPS, AND OTHER PRE-TRIAL IDENTIFICATION
PROCEDURES (pg744-769)
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
• 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 721-743)
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 543-46
• 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
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 700-718)
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