Criminal Procedure Attack Sheet

Best Supplements for Criminal Procedure:

1L Law School Contracts outline based on the following books:

  1. Collateral Issues Exceptions Cont.
    1. US v Havens: the rationale of Harris permits use of illegally obtained evidence to impeach even those statements that are made by the D only on cross-examination (and which are therefore elicited by the prosecution).
    2. Harris extended: Oregon v Hass: whereas in Harris the D had not been given his Miranda warnings at all, in Hass he received his warnings, asked for a lawyer, and was questioned before the lawyer was provided. The majority held that his confession could be used to impeach his testimony, as in Harris.
    3. Non-confession evidence: The Harris/Havens rule allows impeachment use not only of illegally-obtained confessions, but also of evidence obtained through any kind of constitutional violation. Thus in Havens, the evidence was an item (the tee-shirt) seized in an illegal search.
    4. Use of silence for impeachment: Doyle v Ohio: held that the prosecution may not, even in cross-examination, constitutionally elicit the fact that the D remained silent during questioning.
    5. Impeachment of defense witnesses: Harris allows the prosecution to use illegally-obtained evidence to impeach the D. But illegally-obtained evidence may not be used to impeach the testimony of defense witnesses other than the D himself. (James v Illinois)
  2. The Good Faith Exception (Objectively Reasonable Believe Exception)
    1. The exception in brief: US v Leon: the ER has been modified so as not to bar the use in the prosecution’s case-in-chief of evidence obtained by officers acting in reasonable reliance on a search warrant issued by a detached and neutral magistrate found to be unsupported by PC.
      1. Cost-benefit analysis: the majority believed the decision whether to allow use in the prosecution’s case-in-chief of inherently trustworthy tangible evidence obtained in reliance on a search warrant issued by a detached and neutral magistrate that ultimately is found to be defective should be based on a costs-/benefits analysis.
        1. Costs: there are substantial social costs exacted by the rule, namely, that some guilty Ds may go free o receive reduced sentences
        2. Benefits: by the benefits of the ER are minor, at least where police act in objectively reasonable reliance on an neutral magistrate’s issuance of a warrant. The only possible benefits that the majority could see were a deterrent effect on the issuing judge or magistrate, and a deterrent effect on the police officer seeking the warrant. In the Court’s view, neither effect could be major:
          1. Issuing magistrate: issuing magistrates could not be deterred by the rule b/c they are not adjuncts to the law enforcement teams; as neutral judicial officers, they have no stake in the outcome of particular criminal prosecutions.
          2. Police officers: nor could the police officer seeking the warrant be deterred by exclusion of the evidence, since by hypothesis the officer is acting in the objectively reasonable belief that his conduct did not violate his 4th Amnd. IN the case of a warrant later found to be defective, the error will always be that of the magistrate, not the police officer, since it is up to the magistrate to determine whether the officer has articulated PC. Therefore, penalizing the officer for the magistrate’s error, rather than his own, cannot logically contributed to the deterrence of 4th Amnd violations.
        3. Development of 4th Amnd law: one of the arguments to which the majority felt compelled to respond was that the new good faith exception would freeze 4th Amnd jurisprudence in its present state, b/c Ds would have no incentive to litigate 4th Amnd claims as long as there was objectively reasonable reliance by the police on warrant, and b/c cts would tend to decide the objectively reasonable reliance issue without ever reaching the issue of whether there had been 4th Amnd violation The majority answered this argument by asserting that where the underlying constitutional issue is a significant one, the cts could and should decide the basic 4th Amnd issue before turning to the good faith issue.
        4. Exceptions: The Ct foresaw several types of situations in which the officer will not have reasonable grounds to believe that the warrant was properly issued, and which the ER will therefore still apply:
          1. Misleading affidavit: the exception will not apply if the officer who prepared the affidavit on which the warrant is based knows that the info in it is false, or recklessly disregards its truth of falsity;
          2. Rubber stamping magistrate: nor will the exception apply if the magistrate wholly abandons his judicial role
          3. Inadequate affidavit: the underlying affidavit may be so lacking in indicia of PC as to render official belief in its existence entirely unreasonable
          4. Facially deficient warrant: the warrant my be so facially deficient that the officers who execute it cannot reasonably presume it to be valid. For instance, the warrant might so completely fail to specify the items to be seized (a violation of the particularity clause of the 4th Amnd) that reliance will be unreasonable.
        5. Massachusetts v Sheppard: Police make valid affidavit with PC, but magistrate has to use different form since its Sunday and thus did not list with particularity the things to be seized. HELD: their reliance on the resulting warrant was objectively reasonable. Therefore, the evidence was not to be excluded from trial.
        6. Broadened to include other governmental error: if the police reasonably (but mistakenly) believe that there is an arrest warrant outstanding for a particular suspect and arrest him, evidence found during a search incident to this (wrongful) arrest will be admissible, at least where the error is the result of a mistake by the ct system rather than the police dept. (AZ v Evans – case where ct forgot to void arrest warrant & police officer pulls D over for driving wrong way, sees warrant, arrest him, searches car & finds MJ)
          1. Held: for the prosecution. The good faith exception of Leon should apply in this situation. The ER is not constitutionally-required, and should not apply only where it will help deter future 4th Amnd violations. The most imp factor in analyzing deterrent effect is whether application of the ER in a particular context can be expected to alter the behavior of law enforcement officers. Here, where the error was probably made by ct personnel (in not reporting the quashing to the police) rather than by police personnel, its very unlikely that applying the ER will deter similar future violations – b/c ct clerks are not adjuncts to the law enforcement team, they have no stake in the outcome of particular criminal prosecutions, and so are unlikely to be deterred from similar failures by the threat that evidence will be excluded (AZ v Evans)
          2. Scope of ruling: Si far, the good-faith exception has been applied by the SC only in two situations
            1. The police rely on a search warrant that is later found to have been unconstitutional either b/c it was issued without PC or because it was facially defective; or
            2. The police rely on what they think is an outstanding arrest warrant that is later found not to be outstanding at all, and in making the arrest the police perform a search that yields evidence


The Right to Counsel

  1. The Indigent’s Right to Appointed Counsel
    1. Powell and capital crimes: the first case in which a constitutional right to appointed counsel was found b the SC to exist in a particular state trial was Powell v Alabama
      1. Limited holding: Powell involved a capital crime, and the SC, in finding that the indigent Ds there had a constitutional right to an appointed lawyer, emphasized that its holding was limited to capital crimes, and to those capital crimes where the D was incapable adequately of making his own defense b/c of ignorance, feeble-mindedness, illiteracy or the like
      2. DP rationale: the holding of Powell was based not on the 6th Amnd right to counsel, but on the 14th right to due process. The absence of counsel in the case at hand was so prejudicial to the Ds as to have rendered the trial fundamentally unfair
    2. Betts v Brady: from Powell until Gideon v Wainwright, the SC determined the existence of the right to appointed counsel in particular state trials by the DP rest. The 6th Amnd right to counsel, although held in Johnson v Zerbst, to require the appointment of counsel to all indigent Ds in federal felony trials, was held in Betts v Brady not to apply to state trials.
      1. Fair trial obtained: The Betts Ct decided that in the case before it the lack of appointed counsel did not result in a denial of DP to the D, since the trial for robbery rested on the simple issue of judging the truth of testimony establishing an alibi. The D was a man of ordinary intelligence and ability who had once before been in ct and thus was not unfamiliar with criminal procedure.
    3. Gideon v Wainwright: finally, Betts was overruled and the 6th Amnd held applicable to the states in Gideon. The Ct relied principally on the broad language of Powell and said that Betts departed from the sound wisdom upon which the Ct’s holding in Powell rested.
      1. Per se rule announced: Gideon had been denied a fair trial b/c in our adversary system of criminal justice, any person haled into Ct, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. Therefore, the 6th Amnd (as incorporated in the 14th Amnd) automatically entitles an indigent D to appointed counsel, at least in felony cases.
    4. Equal Protection: while Gideon was based on the 6th Amnd, appointment of counsel has all been held to be compelled in certain situations by the equal protection clause of the 14th Amnd.
      1. Griffin v Illinois: equal protection rationale founded on Griffin, in which the SC held that a state must provide a free transcript of the trial proceedings which submission of a transcript is a prerequisite to appeal.
      2. Douglas v CA: the Griffin principle of equal protection was held in Douglas to require that counsel be appointed to assist indigent Ds in preparing the first appeal from a conviction, at least where this first appeal is available as a matter of right to every convicted D.
    5. Ross v Moffit” SC adopted a narrow view of the Griffin-Douglas equal protection principle, in holding that an indigent does not have a right to appointed counsel on his application for discretionary review by the state SC or on his petition for certiorari to the US SC.
      1. No need for absolute equality: the opinion observed that the concept of equal protection does not require absolute equality, so that the fact that a particular service might be of benefit to an indigent does not mean that the service is constitutionally required. The Q is whether the lack of appointed counsel denied equal protection to poor Ds as against rich ones was not one of absolutes but one of degrees. Since the D in Ross was not denied meaningful access to the state SC, he was not denied equal protection. Nor was he denied meaningful access to the US SC by a lack of counsel to assist in his petition to cert.
    6. The concept of indigence:
      1. May not discriminate: In Rinaldi v Yeager, the SC struck down one such statute which required only those sentenced to prison to repay; the law was held to work an invidious discrimination between Ds sentenced to prison and other given a suspended sentence of fin
      2. Limits on recovery: the Ct has also held that a recoupment statute (which applied whether the D was convicted or not) violated equal protection b/c it did not allow the D to make use of the limits on wage garnishment, and other exemptions and protections, given to civil judgment debtors (James v Strange)
      3. Condition of probation: But in Fuller v Oregon, the Ct upheld an Oregon statute which required repayment to the state of the costs of a free defense as a condition of probation. The Ct relied on the fact that the statute required payment only from those Ds who subsequently gain the ability to repay the expenses
  2. Proceedings in which the right to counsel applies
    1. Misdemeanors: in Argesinger v Hamlin, the SC extended the right to counsel to all indigent misdemeanor Ds faced with a potential jail sentence
    2. Jail sentient possible but not imposed: as long as an indigent D is not sentenced to imprisonment, the state is not required to appoint counsel for him, even if the offense is one which is punishable by imprisonment (Scott v Illinois). Apparently, this holding means that even if the offense charged is a felony under state law, the state does not have to supply an indigent with counsel as long as the judge is wiling merely to impose a fine
    3. Use to increase sentence for later crime: an uncounseled conviction may be used to increase a permissible sentence for a subsequent conviction (Nichols v US)
      1. In holding this: Ct said D was not being punished for his earlier conviction, but rather, for the second one. Since sentencing judges have always been allowed to take into consideration a broad range of factors in setting a D’s sentence (e.g. past criminal behavior that did not result in a conviction), there was no 6th Amnd violation in allowing the prior conviction to be used to increase D’s sentence.
    4. Quasi-criminal proceedings: the SC has extended the right to appointed counsel to a juvenile delinquency proceeding in which institutional commitment was a possibility. (In re Gault). The Gault holding seems equally applicable to other proceedings which are comparable in seriousness to a felony prosecution
  3. Stages at which the right to counsel attaches
    1. Initial Appearance: a D’s first contact with the judiciary in a criminal case is usually his initial appearance before a magistrate, which generally occurs soon after his arrest. At the initial appearance, the D is informed of the charges against him, and told of his right to remain silent, to have the assistance of counsel, and, if the case is a felony case, to have preliminary examination. The magistrate also usually sets bail.
      1. White v Maryland: SC held that the initial appearance is a critical stage of the proceedings, and requires the appointment of counsel, if the D is compelled to make a decision which may later be formally used against him
    2. Preliminary Hearing
      1. Coleman v Alabama: SC held that the denial of appointed counsel at the preliminary hearing was a violation of the accused’s 6th Amnd rights, b/c the hearing was a critical stage of the prosecution. Counsel could perform several functions at this stage, including the cross-examination of witnesses and the reduction of bail.
        1. Harmless error possibility: the Ct held, however, that the denial of counsel did not necessarily require reversal of the subsequent conviction, b/c the denial constituted harmless error unless the D could show that the presence of counsel would have charged some specific occurrence or omission at the hearing having a direct impact to trial.
    3. Arraignment: after an information for indictment is issued, an arraignment takes place. At the arraignment, the charges are head, and the D enters a plea
      1. Where no prejudice can occur: the arraignment is a critical stage requiring counsel, but the denial of counsel is harmless error as long as the D is not required to bind himself in any way. This if he is asked to enter a plea, but is permitted to change his plea later without an prejudice the absence of appointed counsel is harmless error, and the conviction will not be reversed
      2. Where not harmless error: but if certain defenses or pleas are lost to the D as the result of entering a particular plea, or if the plea is otherwise prejudicial to him, the denial of counsel at the arraignment is not harmless error, and the conviction will be reversed. Thus in Hamilton v Alabama, the D lost, by state law, the right to assert insanity defense by not raising it at arraignment; the SC held that the denial of appointed counsel at arraignment therefore required reversal.
    4. Sentencing a critical stage: in Mempa v Rhay, the SC held that a Washington delayed-sentencing hearing was a critical stage of criminal proceedings requiring the right to an attny
      1. Rationale: the Ct held that the cases following Gideon stand for the recognition that appointment of counsel for indigent is required at every stage of a criminal proceeding where substantial rights of a criminal accused may be affect. Counsel was therefore required for the sentencing, clearly a crucial part of the criminal proceeding as far as the D was concerned.
    5. Psychiatric exam as a critical stage
      1. Estelle v Smith: since counsel for D had already ben appointed, the 6th Amnd required that counsel be (1) notified that a psychiatric exam had been ordered by the ct; and (2) notified that the results of this exam might be used during the penalty phase of the trial on the issue of the D’s future dangerousness
    6. Probation revocation not part of the process: the reasoning of Mempa v Rhay was held inapplicable to a probation revocation proceeding where the sentence had previously been imposed, and no right to counsel was found to exist (Gagnon v Scarpelli). The Gagnon ct held that the probation hearing is not part of the criminal prosecution.
      1. DP test: Presumptive situations: however, the Ct said that presumptively counsel should be provided when the D presents a timely and colorable claim that (1) he did not commit the violation, or (2) there are mitigating circumstances making revocation inappropriate
    7. Appeals: get counsel for his first appeal as of right (appeal made available to all convicted D) (Douglas v CA). But there is no right to have counsel appointed for attempts to obtain discretionary review of the conviction (Ross v Moffit)
    8. Collateral proceedings: a prisoner has a limited right to legal assistance for the purpose of pursing these (e.g. federal habeas corpus). IN Bonds v Smith, the SC held that the fundamental constitutional right of access to the cts requires prison authorities to assist inmates in the preparation and filing of meaningful legal papers by providing prisoners with adequate law libraries or adequate assistance from persons trained in the law.
  4. Waiver
    1. Standards: any waiver of the right to counsel must be made knowingly and intelligently
      1. Police coercion: however as the result of Colorado v Connelly, even facts and circumstances case doubt on whether the D’s decision to waive the right to counsel was the product of free and rational mind, the waiver probably will be upheld if there is no police coercion. Here, the that coercive police activity is a necessary predicate to the finding that a confession is not voluntary within the meaning of the DPC; the Ct will almost certainly reach the same conclusion with respect to the voluntariness of a waiver of the right to counsel
      2. Miranda warnings suffice: if the D is given his Miranda warnings, and does not ask for counsel, this will be a valid waiver of the right to counsel, even though the Miranda warnings do not refer especially to the 6th Amnd post-indictment right to counsel. IN other words, even though the Miranda warnings are designed only to protect the D’s 5th Amnd rights against self-incrimination, those warnings inform the D that he has the right to have counsel present during interrogation; if he declines such assistance, the police may treat this as a waiver, and interrogate him, even through the formal 6th Amnd right to counsel has attached. (Patterson v Illinois). (But the converse is not true – the Miranda warnings are not necessary to a waiver of the right to counsel in post-indictment situations. For instance, I the D is shown to have knowingly and voluntarily relinquished his right to have counsel attend at, say a preliminary hearing, the fact that no Miranda warnings were given would be irrelevant, since such warnings are only appropriate prior to custodial interrogation by the police).
    2. Right to conduct one’s own defense: Faretta v CA held that the 6th Amnd guarantees the right of a D to proceed pro se (i.e. to represent himself without counsel
  5. Entitlements of the right to counsel
    1. Effective counsel: the 6th Amnd does not merely entitle the D to have a lawyer. It entitles him to the effective assistance of counsel. Therefore, even a D who has been actually represented by counsel may show that his 6th Amnd right was violated.
    2. Standard for judging effectiveness: Strickland v Washington – a D whose lawyer has actually participated in the trial must make two showing in order to sustain his 6th Amnd claim (1) that counsel’s performance was deficient, in the sense that counsel was not reasonable competent attny; and (2) 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
      1. Objective standard: for the first of these showings, the D must show that the advice given by counsel was not within the range of competence demanded of attny in criminal case. It will not be enough to show that some or even most defense lawyers would have handled the matter differently, since there are counsel ways to provide effective assistance in any given case. Furthermore, the ct should apply a strong presumption that the lawyer’s conduct fell within the wide range.
      2. Prejudice: even if the D has shown that counsel’s work at the trial was hopelessly incompetent, he must still show that this incompetence led to prejudice. This means that if the facts showing the D’s guilt are so overwhelming that even the most competent lawyering would be unlikely to have obtained an acquittal, the 6th Amnd claim fails. In particular, the requirement of a showing of prejudice means that the D must show that there was a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability which is sufficient to undermine confidence in the outcome. IN the usual case where the issue is the D’s guilt of innocence (as distinguished from an appropriate sentence), the issue is therefore whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt.
    3. Insufficient time to prepare: the requisite ineffective assistance, and prejudice, may be due to the fact that the ct has refused to grant a postponement to allow a newly-appointed lawyer adequate time to prepare for trial.
      1. Ordinary delay: generally, however, the fact of delay will not eliminate the need for showing actual ineffectiveness and prejudice. (Chambers v Maroney – no per se rule that late appointment of counsel, even a few minutes before trial, automatically amounts to ineffective representation). (see also US v Cronic – 25 days for counsel to prepare defense, compared with 4.5 years for gov to develop prosecution, did not justify abandonment of the requirement of a showing of ineffectiveness and prejudice).
    4. NO right to have lawyer present perjured testimony: the 6th Amnd entitles the D to a lawyer who will represent him loyally and vigorously. But the Amnd of course does not entitle the D to lawyer who will knowingly present perjured testimony (Nix v Whiteside)
    5. Death penalty case: SC seems somewhat more likely to uphold an ineffective-counsel claim when the case is a capital case and the D is in fact sentenced to death. Success is particularly likely based on ineffective assistance during the penalty phase of the trial. For instance, the Ct will be quick to find ineffective assistance when counsel fails to conduct an adequate social history investigation of the D’s life, and thus fails to show mitigating evidence – such as parental abuse – that would have been discovered by a proper investigation (Wiggins v Smith)
    6. Conflict in multiple representation:
      1. Objection by lawyer: if the lawyer objects to the fact that he is being required to represent multiple Ds whose interest conflict, or one of the D objects, the trial judge must investigate whether there is an actual conflict. If he does not make such an investigation, and one D is convicted, the D must on appeal merely name a minimal showing the he may have been prejudiced by the multiple representation, and he will be entitled to a reversal of the conviction (Holloway v Arkansas)
      2. No objection: but if neither the D nor the lawyer objects to the multiple representation, the judge (at least in state trials) is not required to make any inquiry into possible conflict, unless he knows or reasonably should know that a particular conflict exists (Cuyler v Sullivan)
    7. No right to waive the conflict: cases like Cuyler illustrate that it can be a violation of the right to counsel for one lawyer to represent multiple Ds who have conflicting interests. Now, consider the converse problem: of co-Ds all want to be represented by the same lawyer, and waive their right to object to the conflict, does the ct violate each D’s 6th Amnd rights by refusing to allow the multiple representation. NO – so long as there is a reasonable possibility of a conflict, the ct may prohibit the same lawyer from representing two or more Ds, without violating the 6th Amnd rights of the D who loses access to his first choice (Wheat v US)
    8. Expert assistance: most lower cts have held that a D is entitled to the appointment of experts when necessary to present an effective defense. The SC has dealt with this issue only in the context of the right to an expert psychiatrist
      1. Right to a psych: there are at least two instances in which the D has the right to psych’s assistance at state expense (1) when he makes a preliminary showing that his sanity is likely to be a factor in his defense; and (2) when, in a capital sentencing proceeding, the state tries to justify the death penalty by showing that the D is likely to remain dangerous in the future (Ake v Oklahoma)
    9. Secret agents: once a suspect has been indicted and has counsel, it is a violation of his right to counsel for a secret agent to deliberately obtain incriminating statements from him in the absence of counsel, and to pass these on to the prosecution (Massiah v US)
      1. Must be deliberately elicited: The SC has continued to impose the requirement stated in Massiah that the secret agent deliberately elicit the incriminating testimony. In US v Henry, Nichols, a paid informant to the FBI, was incarcerated in the same jail cell as D. He told his FBI contact of this fact, and the FBI man told him to be alert to any statement made by D, but not to begin any conversation with or questioning of D about the crime for which D was currently under indictment (a bank robbery). At D’s trial, Nichols recited several incriminating statements made to him by D while they were in jail together. HELD: D’s 6t Amnd rights violated.
      2. Passive listening: But in Kuhlman v Wilson, the Ct made it clear that Massiah will not be extended in this way, and that only the deliberate eliciting of info is barred by the 6th Amnd.
      3. Limited holding: Alternative motives by police: suppose that while D is under indictment for one crime, the police employ a secret agent against him as part of an investigation into a separate crime on which there has been no indictment. May the prosecution use info obtained by the secret agent in its case on the first indictment. The SC answered NO – Maine v Moulton
        1. Result: where there is a pending indictment on the one hand and an ongoing investigation into additional charges on the other, the police are thus free to use a secret agent who elicits info from the suspect. However, that info may be used only in prosecutions for offenses that have not yet reached the indictment stage.
      4. Active/passive distinction:
        1. Passive listening: Kuhlmann v Wilson – Massiah & Henry only apply where there occurs secret interrogation by investigatory techniques that are the equivalent of direct police interrogation. A D must show that the police and their informant took some action, beyond merely listening, that was designed deliberately to elicit incriminating remarks
      5. Deliberate eliciting of info: in Maine v Moulton, the informant, a co-D of D, prompted D to repeat the facts of the crime to a hidden transmitter. The Ct held that there was a violation of the right to counsel, b/c the informant had deliberately elicited the info. This was so even though the meeting at which D made the statements was one requested by D rather than by the police or the informant. Knowing exploitation by the State of an opportunity to confront the accused without counsel being present is as much a breach of the State’s obligation not to circumvent the right to the assistance of counsel as is the intentional creation of such an opportunity.
    10. Presence at attny-client conference: this presence of an undercover agent at a conference between a suspect and his lawyer will also be a violation of the suspect’s right to counsel, if material from this conference is used by the prosecution.
      1. Informant doesn’t tell prosecution: but the SC has refused to hold that an undercover agent’s participation in such a pre-trial attny-client conference constitute a per se violation of the right to counsel, even where the agent never passes on any info to the prosecution (Weatherford v Bursey)


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