Criminal ProcedureCriminal Procedure

Class NineClass Nine

Today’s Topics: Right Today’s Topics: Right to Counselto Counsel

Early DevelopmentEarly Development Contemporary StandardsContemporary Standards

– FeloniesFelonies– MisdemeanorsMisdemeanors

ScopeScope– Critical StageCritical Stage– Post TrialPost Trial– ExpertsExperts

Today’s Topics: Today’s Topics: Screening & ChargingScreening & Charging

DiscretionDiscretion– PolicePolice– ProsecutorsProsecutors

Non-Prosecution of CrimeNon-Prosecution of Crime Selective ProsecutionSelective Prosecution

Today’s Topic: Grand Today’s Topic: Grand JuriesJuries

& Preliminary Hearings& Preliminary Hearings Initial ConsiderationsInitial Considerations

– Infamous CrimesInfamous Crimes– Constitutional Requirements?Constitutional Requirements?

ProceduresProcedures EvidenceEvidence Subpoena Power & Subpoena Power &

AppearancesAppearances Preliminary HearingsPreliminary Hearings

CHAPTER FIVECHAPTER FIVE

Right to CounselRight to Counsel

Sixth AmendmentSixth Amendment

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

Early DevelopmentsEarly Developments

Johnson v. ZerbstJohnson v. Zerbst– Held: Sixth Amendment requires Held: Sixth Amendment requires

counsel in Federal Court in all counsel in Federal Court in all criminal proceeding, unless D criminal proceeding, unless D waiveswaives

– Court viewed as jurisCourt viewed as jurisdictional prerequisite prerequisite

Early DevelopmentsEarly Developments

Powell v. AlabamaPowell v. Alabama– Predates Johnson v. ZerbstPredates Johnson v. Zerbst– ““Scottsboro” caseScottsboro” case– ““The right to be heard would be, The right to be heard would be,

in many cases, of little avail if it in many cases, of little avail if it did not comprehend the right to did not comprehend the right to be heard by counsel.” be heard by counsel.”

QueryQuery

Why does a person accused of Why does a person accused of crime need “the guiding hand crime need “the guiding hand of counsel at every step of the of counsel at every step of the proceeding against him?”proceeding against him?”

If Court has duty to provide If Court has duty to provide counsel, does D have duty to counsel, does D have duty to request it?request it?

Contemporary Standards: Contemporary Standards: FeloniesFelonies

Gideon v. WainwrightGideon v. Wainwright– ““Gideon’s Trumpet” by Anthony LewisGideon’s Trumpet” by Anthony Lewis– Rejection of Rejection of Betts v. BradyBetts v. Brady– ““Obvious Truth” that in our adversary Obvious Truth” that in our adversary

system of criminal justice, any person system of criminal justice, any person haled into court, who is too poor to hire haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial a lawyer, cannot be assured a fair trial unless counsel is provided for him.unless counsel is provided for him.

– Why should denial of counsel be Why should denial of counsel be considered “structural error” rather considered “structural error” rather than subject to harmless error analysis? than subject to harmless error analysis?

Determining Determining IndigencyIndigency

Gideon requires appointed counsel Gideon requires appointed counsel for indigents in felony casesfor indigents in felony cases

Indigency is not much of an “issue” Indigency is not much of an “issue” in most jurisdictionsin most jurisdictions

Typical mechanisms:Typical mechanisms:– Pauper’s affidavitsPauper’s affidavits– Demonstrating eligibility for other Demonstrating eligibility for other

government servicesgovernment services– Conditioning probation on repayment Conditioning probation on repayment

of Court costs and fees to counselof Court costs and fees to counsel

Contemporary Models: Contemporary Models: Delivering Indigent Delivering Indigent

DefenseDefense

Public DefenderPublic Defender Ad Hoc AppointmentAd Hoc Appointment Mixed SystemMixed System

Texas Fair Defense Act, Texas Fair Defense Act, effective 1-1-02 effective 1-1-02

ExerciseExercise

Identify a minimum of three Identify a minimum of three advantages and disadvantages advantages and disadvantages to each systemto each system

Contemporary Contemporary Standards: Standards:

MisdemeanorsMisdemeanors

Rule: Defendant may not be Rule: Defendant may not be imprisoned imprisoned for anyfor any offense offense unless he is represented by or unless he is represented by or waives a lawyerwaives a lawyer

Applies to MisdemeanorsApplies to Misdemeanors– Argersinger v. HamlinArgersinger v. Hamlin– Scott v. IllinoisScott v. Illinois

Interplay With Right toInterplay With Right to Jury Trial Jury Trial

Supreme Court has held there is no right Supreme Court has held there is no right to jury trial where the maximum to jury trial where the maximum potentialpotential imprisonment is six months or lessimprisonment is six months or less

Query: Why did the Supreme Court not Query: Why did the Supreme Court not apply a similar rule to the right to counsel?apply a similar rule to the right to counsel?

Practical considerations: Practical considerations: ArgersingerArgersinger and and Scott Scott may require preliminary judgments may require preliminary judgments by a prosecutor and/or trial judge by a prosecutor and/or trial judge concerning how likely a particular concerning how likely a particular defendant is to be incarcerated if defendant is to be incarcerated if convictedconvicted

ExerciseExercise

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

ExerciseExercise

In terms of In terms of ScottScott, consider:, consider:– How is D supposed to present testimony?How is D supposed to present testimony?– Assuming D wants to testify, does he give Assuming D wants to testify, does he give

narrative? Q & A?narrative? Q & A?– Must D object to questions on cross?Must D object to questions on cross?– If so, what is the effect of such objections If so, what is the effect of such objections

likely to be in the event there is a jury?likely to be in the event there is a jury?– If case is bench trail (to the trial court) If case is bench trail (to the trial court)

how far can defendant go in arguing with how far can defendant go in arguing with the judge without prejudice in his defense?the judge without prejudice in his defense?

Uncounseled Priors as Uncounseled Priors as EnhancementEnhancement

Enhancement: Increasing the Enhancement: Increasing the range of punishment for new range of punishment for new offense, based on prior offense, based on prior convictionconviction

Uncounseled Priors as Uncounseled Priors as EnhancementEnhancement

Illustration: “Three strikes Illustration: “Three strikes you are out” statutesyou are out” statutes

Issue: Can conviction obtained Issue: Can conviction obtained at trial conducted without a at trial conducted without a lawyer be used to enhance lawyer be used to enhance punishment of person charged punishment of person charged as second offender?as second offender?– Nichols v. United StatesNichols v. United States

Scope: “Critical Stage”Scope: “Critical Stage”

Gideon teaches that indigent has right Gideon teaches that indigent has right to court-appointed lawyer at trialto court-appointed lawyer at trial

Scope: “Critical Stage”Scope: “Critical Stage”

Issue: Are there other “critical Issue: Are there other “critical stages” where right to counsel is stages” where right to counsel is required - - either prior to trial or required - - either prior to trial or after?after?

Scope: “Critical Stage”Scope: “Critical Stage”

Test for “critical stage”: Once there Test for “critical stage”: Once there is a formal charge, D has right to is a formal charge, D has right to counsel at any proceeding in court counsel at any proceeding in court and at virtually any appearance and at virtually any appearance anywhereanywhere– D may also have right to counsel if D may also have right to counsel if

necessary to safeguard an independent necessary to safeguard an independent constitutional right, such as inconstitutional right, such as in Miranda Miranda

Scope: “Critical Stage”Scope: “Critical Stage”

Courts will consider more than merely Courts will consider more than merely the label applied to the proceedingthe label applied to the proceeding– Coleman v. AlabamaColeman v. Alabama

Scope: “Critical Stage”Scope: “Critical Stage”

CAUTION: Right to counsel has not CAUTION: Right to counsel has not been extended to all pretrial phases been extended to all pretrial phases of criminal investigationof criminal investigation– Remember, Kirby v. IllinoisRemember, Kirby v. Illinois

Beginning Adversarial Beginning Adversarial ProceedingsProceedings

Formal ChargeFormal Charge Preliminary HearingPreliminary Hearing IndictmentIndictment InformationInformation ArraignmentArraignment

Beginning Adversarial Beginning Adversarial ProceedingsProceedings

Analytical Key: Filing of some Analytical Key: Filing of some statement with Court having statement with Court having appropriate jurisdiction, appropriate jurisdiction, expressing prosecutor’s beliefs expressing prosecutor’s beliefs that proceedings that will lead that proceedings that will lead to conviction should beginto conviction should begin

Post-VerdictPost-Verdict

Principle: Right to counsel Principle: Right to counsel extended to certain stages of extended to certain stages of criminal prosecution criminal prosecution followingfollowing trial trial

Mempa v. Rhay Mempa v. Rhay (lawyer must be (lawyer must be provided for revocation of provided for revocation of probation or deferred sentencing) probation or deferred sentencing) [later modified][later modified]

Post-VerdictPost-Verdict

Douglas v. CaliforniaDouglas v. California (lawyer must (lawyer must be provided for first appeal)be provided for first appeal)

Ross v. MoffittRoss v. Moffitt (no counsel for (no counsel for subsequent, discretionary appeals subsequent, discretionary appeals or petitions to U.S. Supreme Court)or petitions to U.S. Supreme Court)

Murray v. GiarratanoMurray v. Giarratano (no right to (no right to counsel for collateral attack)counsel for collateral attack)– CAUTION: Some states provide for CAUTION: Some states provide for

death row inmates pursuing post-death row inmates pursuing post-conviction habeas corpusconviction habeas corpus

Significance of Finding Significance of Finding no Right to Counselno Right to Counsel

If no right to counsel, no right If no right to counsel, no right to to effective assistanceeffective assistance of counsel of counsel

Example: Errors of lawyers Example: Errors of lawyers that occur after the first that occur after the first appeal as a matter of right appeal as a matter of right create no constitutional claimcreate no constitutional claim– Pennsylvania v. FinleyPennsylvania v. Finley

TranscriptsTranscripts

Concept: If indigent defendant Concept: If indigent defendant has right to appointed lawyer on has right to appointed lawyer on the first appeal, she also has the first appeal, she also has constitutional right to relevant constitutional right to relevant transcript for purposes of appealtranscript for purposes of appeal

Right applies even for conviction Right applies even for conviction on appeal for ordinance on appeal for ordinance punishable by fine onlypunishable by fine only

TranscriptsTranscripts

Indigents cannot be require to Indigents cannot be require to pay appellate filing feepay appellate filing fee

Indigent entitled to Indigent entitled to preliminary hearing transcript preliminary hearing transcript free of chargefree of charge

Probation and Parole HearingsProbation and Parole Hearings

Despite Despite MempaMempa, no absolute , no absolute right to counselright to counsel

Only constitutional protection Only constitutional protection is due process right to is due process right to proceeding that is proceeding that is fundamentally fairfundamentally fair

Probation and Parole HearingsProbation and Parole Hearings

Supreme Court requires case by Supreme Court requires case by case approach in probation case approach in probation revocation hearings revocation hearings

Rationale: Parole and probation Rationale: Parole and probation hearings are more flexible hearings are more flexible proceedings than criminal trialsproceedings than criminal trials– Gagnon v. ScarpelliGagnon v. Scarpelli – Morrissey v. BrewerMorrissey v. Brewer

JuvenilesJuveniles

In Re Gault: Due process requires In Re Gault: Due process requires appointment of counsel in juvenile appointment of counsel in juvenile proceedingsproceedings

Note: Labeling a proceeding Note: Labeling a proceeding “criminal”, “non-criminal” or “criminal”, “non-criminal” or “juvenile” will not always be “juvenile” will not always be dispositivedispositive

Possible analytical key: Possible analytical key: Adjudication of guiltAdjudication of guilt

ExpertsExperts

Court has treated access to Court has treated access to experts similarly to access to experts similarly to access to free transcriptsfree transcripts

Ake v. OklahomaAke v. Oklahoma Possible analytical key: Will D Possible analytical key: Will D

be deprived of fair opportunity be deprived of fair opportunity to present defense if denied to present defense if denied expertexpert

Chapter SixChapter Six

ScreeningScreening and Chargingand Charging

FederalFederal ProsecutorsProsecutors United States attorneys for each United States attorneys for each

district are responsible to the district are responsible to the Attorney General of the United StatesAttorney General of the United States

United States attorneys are appointed United States attorneys are appointed by President and confirmed by Senateby President and confirmed by Senate

Decision about whether to appeal Decision about whether to appeal rulings by trial court may be also rulings by trial court may be also controlled by Solicitor General, who controlled by Solicitor General, who decides when to seek certiorari in decides when to seek certiorari in Supreme CourtSupreme Court

Process is somewhat centralizedProcess is somewhat centralized

State ProsecutorsState Prosecutors

Many states have systems that Many states have systems that place enormous power in local place enormous power in local prosecutorprosecutor

Common for these prosecutors Common for these prosecutors to be electedto be elected

State ProsecutorsState Prosecutors

Consequently, incentives of Consequently, incentives of particular prosecutors’ office particular prosecutors’ office may be determined by voting may be determined by voting preferences of communitypreferences of community

In many states, the state In many states, the state Attorney General has very Attorney General has very little power over the typical little power over the typical criminal casecriminal case

Common Prosecutorial Common Prosecutorial ThemesThemes

Vast differences among jurisdictions Vast differences among jurisdictions in allocation of prosecutorial in allocation of prosecutorial authorityauthority

Vast differences among jurisdictions Vast differences among jurisdictions in how prosecutors are selectedin how prosecutors are selected

Common CharacteristicsCommon Characteristics– Chief Prosecuting Official in given Chief Prosecuting Official in given

jurisdiction has large discretion to bring jurisdiction has large discretion to bring or refrain from bringing charges against or refrain from bringing charges against particular people and organizationsparticular people and organizations

– Prosecutorial discretion continues even Prosecutorial discretion continues even after initial charging decisionafter initial charging decision

DiscretionDiscretion

Choices are made at all levels Choices are made at all levels of criminal justice systemof criminal justice system

Some choices are controlled by Some choices are controlled by standardsstandards

DiscretionDiscretion

Majority of choices have room Majority of choices have room for wide latitudefor wide latitude

To a large extent these choices To a large extent these choices are “uncontrolled” in that are “uncontrolled” in that people who make them are not people who make them are not bound to follow specific bound to follow specific guidelinesguidelines

Exercise: Full Enforcement Exercise: Full Enforcement

Query: How many have been Query: How many have been stopped by police officers for traffic stopped by police officers for traffic violation, prank, or some other act violation, prank, or some other act for which you could have been cited for which you could have been cited or arrested - - and were not?or arrested - - and were not?

Why do we have less than full Why do we have less than full enforcement of the law?enforcement of the law?

How do you square concept of How do you square concept of individualized justice with theory of individualized justice with theory of equal justice under law? Shouldn’t equal justice under law? Shouldn’t similar cases be treated alike?similar cases be treated alike?

Police Officer DiscretionPolice Officer Discretion

Decision not to arrest is Decision not to arrest is essentially unreviewableessentially unreviewable

Exercise: Scenario One, page Exercise: Scenario One, page 808. Question: Should office 808. Question: Should office arrest?arrest?

ProsecutorsProsecutors

Consequence of decision to Consequence of decision to charge suspect with crime is charge suspect with crime is greater than consequence of greater than consequence of deciding whether to arrestdeciding whether to arrest

ProsecutorsProsecutors

Factors generally considered by Factors generally considered by prosecutor:prosecutor:– Suspect is guiltySuspect is guilty– Enough evidence to secure convictionEnough evidence to secure conviction– Community’s best interest served by Community’s best interest served by

prosecutingprosecuting ABA Standards recognize that ABA Standards recognize that

prosecutors are not obligated to prosecutors are not obligated to present all chargespresent all charges

Reality CheckReality Check

Key factor in deciding whether to Key factor in deciding whether to prosecute is a determination prosecute is a determination whether case can be wonwhether case can be won

Identify a minimum of three Identify a minimum of three reasons influencing this factorreasons influencing this factor

Special ProsecutorsSpecial Prosecutors

Can private attorneys be Can private attorneys be appointed as special prosecutors?appointed as special prosecutors?

Can a party benefiting from a court Can a party benefiting from a court order serve as special prosecutor?order serve as special prosecutor?

Can victim’s family hire “big gun” Can victim’s family hire “big gun” litigator as special prosecutor?litigator as special prosecutor?

Non-ProsecutionNon-Prosecution

Is prosecutor’s decision not to Is prosecutor’s decision not to prosecute subject to judicial prosecute subject to judicial review?review?

What constitutional limitations are What constitutional limitations are implicated in this query?implicated in this query?

Selective ProsecutionSelective Prosecution

Context: Who is selected, for what Context: Who is selected, for what crime, in which jurisdictioncrime, in which jurisdiction

BackgroundBackground– Wayte v. United StatesWayte v. United States– U.S. v. Armstrong (supplement)U.S. v. Armstrong (supplement)

Choice of VenueChoice of Venue

Query: Why do prosecutors care Query: Why do prosecutors care so much where charges are so much where charges are brought?brought?

EXERCISEEXERCISE

D is investigated by Houston Police D is investigated by Houston Police Department for possession of Department for possession of cocaine with intent to deliver. cocaine with intent to deliver. Pursuant to valid arrest/search Pursuant to valid arrest/search warrant, police go to D’s home. warrant, police go to D’s home. More drugs are found there.More drugs are found there.

At police station D is given Miranda At police station D is given Miranda warnings.warnings.

Exercise, Con’tExercise, Con’t

D agrees to give oral statement D agrees to give oral statement but won’t write anything down or but won’t write anything down or sign anything.sign anything.

Recording equipment doesn’t Recording equipment doesn’t work, so it appears confession will work, so it appears confession will be out the window under Texas be out the window under Texas Oral Confession statute (Art. Oral Confession statute (Art. 38.22)38.22)

Exercise, Con’tExercise, Con’t

Is it permissible Is it permissible for HPD to turn for HPD to turn case over to case over to federal federal prosecutors to prosecutors to pursue under pursue under federal drug laws?federal drug laws?

Selection of ChargesSelection of Charges

Issue: Is there an equal protection Issue: Is there an equal protection or due process violation in or due process violation in prosecutor’s decision to charge the prosecutor’s decision to charge the most serious (highest punishment most serious (highest punishment range) crime that the facts can range) crime that the facts can support?support?

U.S. v. BatchelderU.S. v. Batchelder

Practical ConsiderationsPractical Considerations

Query: Why would prosecutor, as Query: Why would prosecutor, as a practical matter, want to go for a practical matter, want to go for the greatest (highest) possible the greatest (highest) possible charge?charge?

GRAND JURIESGRAND JURIES

Initial ConsiderationsInitial Considerations

Text of Fifth Amendment requires Text of Fifth Amendment requires indictment in “capital, or otherwise indictment in “capital, or otherwise infamous crime …”infamous crime …”

Initial ConsiderationsInitial Considerations

What is an infamous crime?What is an infamous crime?– Are Texas misdemeanors infamous Are Texas misdemeanors infamous

crimes?crimes? Has 5th Amd requirement of grand Has 5th Amd requirement of grand

jury indictments been incorporated jury indictments been incorporated to the states under 14th Amd?to the states under 14th Amd?

Initial ConsiderationsInitial Considerations

Does Texas require grand jury Does Texas require grand jury indictments?indictments?

Generally states considered either Generally states considered either indictment or information statesindictment or information states

Indictment/InformationIndictment/Information

IndictmentIndictment

Grand Jury Grand Jury ForemanForeman

InformationInformation

ProsecutorProsecutor

Common CharacteristicsCommon Characteristics

WhoWho WhatWhat WhenWhen

Served on DServed on D Filed in CourtFiled in Court

ProceduresProcedures

Selection & QualificationsSelection & Qualifications Oath & DutiesOath & Duties SecrecySecrecy PresencePresence AppearanceAppearance AttorneysAttorneys

Evidence ConsideredEvidence Considered

Issue: What constitutional limits Issue: What constitutional limits are placed on types of evidence are placed on types of evidence that grand jury may hearthat grand jury may hear

Hearsay?Hearsay? Rules of Evidence?Rules of Evidence? Illegally seized evidence?Illegally seized evidence? Impact on subsequent trial?Impact on subsequent trial?

Exculpatory EvidenceExculpatory Evidence

Issue: Does prosecutor have duty Issue: Does prosecutor have duty to present favorable or exculpatory to present favorable or exculpatory evidence to Grand Jury?evidence to Grand Jury?– United States v. WilliamsUnited States v. Williams

Related Concern: What ethical Related Concern: What ethical considerations might apply?considerations might apply?

Subpoena Power & Subpoena Power & AppearancesAppearances

Federal Grand Juries: nationwide scopeFederal Grand Juries: nationwide scope QuestionsQuestions

– Is it permissible to call witnesses who will Is it permissible to call witnesses who will add nothing new to knowledge of Gr Jy?add nothing new to knowledge of Gr Jy?

– Does it matter if these people will suffer as Does it matter if these people will suffer as result of being called to testify?result of being called to testify?

– Is subpoena & request for documents a Is subpoena & request for documents a 4th Amd seizure4th Amd seizure

Subpoena Power & Subpoena Power & AppearancesAppearances

Questions, con’tQuestions, con’t– Can defense attorneys be subpoenaed & Can defense attorneys be subpoenaed &

asked fee-related information? Impact of asked fee-related information? Impact of attorney-client privilege?attorney-client privilege?

– Does Gr Jy need probable cause to justify Does Gr Jy need probable cause to justify subpoena?subpoena?

– Following indictment can D be subpoenaed Following indictment can D be subpoenaed in order to gather additional information?in order to gather additional information?

– Is witness entitled to Miranda warnings?Is witness entitled to Miranda warnings?

PRELIMINARY HEARINGSPRELIMINARY HEARINGS

BasicsBasics

Principle substitute for Grand JuryPrinciple substitute for Grand Jury– Texas: Examining TrialTexas: Examining Trial

No right to post-indictment No right to post-indictment examining trialexamining trial– Rationale: Probable cause is validly Rationale: Probable cause is validly

established by indictment itselfestablished by indictment itself

ExerciseExercise

As defense lawyer, why would you As defense lawyer, why would you want examining trial? Why not?want examining trial? Why not?

As prosecutor, why would you want As prosecutor, why would you want examining trial? Why not?examining trial? Why not?