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Criminal Procedure - Outline Part 28

By Collin B. Hardee

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<< Part 27

  1. Waiver
    1. Waiver: An accused who has been admonished with the MR’s has been sufficiently apprised of the nature of his 6A rights, and of the consequences of abandoning those rights, so that his waiver on this basis will be considered a knowing and intelligent one
      1. NOTE: Miranda Waiver = 6A Right to Counsel Waiver
    2. Whether a defendant has effectively waived his right to have counsel present is a matter of constitutional law, and the burden rests on the prosecution to show that the defendant made an intentional relinquishment of a known right to counsel. (Brewer v. Williams)
      1. An effective waiver requires actual relinquishment of a right and where a defendant consistently relies on the advice of counsel in dealing with the police, any suggestion that he waived his right to counsel is refuted.
    3. Miranda warnings sufficiently inform a defendant of the dangers and disadvantages of representing himself during post-indictment questioning and therefore a defendant knowingly and intelligently waives his Sixth Amendment right to counsel when he waives his Miranda rights and chooses to speak to the police. (Patterson)
      1. Waive Miranda = Waive 6th
      2. Edwards rule DOES NOT apply for 6th Amendment (Montejo)
        1. Once 6 A right to counsel attaches, police may come & ask to talk to you (Montejo)
  2. 6th Amendment & Exclusionary Rule
    1. Violation of the 6th Amendment → excludes the statement AND the evidence
    2. ER Exceptions:
      1. Independent Source Doctrine
      2. Inevitable Discovery Doctrine
      3. Attenuation Doctrine
      4. Good Faith Doctrine
      5. GFD Exceptions
  3. Offense SPECIFIC → ONLY applies to the charge you are indicted for
    1. “Blockburger” Test: Offenses are considered the “same offense” only when proving the elements of the greater will always prove the elements of the lesser (line up elements)
    2. Steps:
      1. What offense was defendant indicted for?
      2. Were questions related to that offense?
    3. Invoking one’s Sixth Amendment right to counsel for an offense where formal charges have been brought, does not automatically invoke one’s Miranda rights for other offenses where charges have not yet been formally brought. (McNeil)
      1. When a defendant invokes his Sixth Amendment right to counsel during a judicial proceeding, he has NOT effectively invoked his Miranda right to counsel for offenses for which he has not yet been formally charged (McNeil)
        1. Cannot anticipatorily invoke Miranda rights.
      2. HOWEVER: invoking Miranda in regards to a general offense, police can’t speak to defendant about anything

8. Police Lineups & Eyewitness Identification

  1. Four Types:
    1. In-Court ID during Trial
    2. Show-Up ID
    3. Lineup
    4. Photo Array
  2. Legal Rules RE: Eyewitness Identifications
    1. Due Process
    2. 6A Right to Counsel

9. Due Process and Eyewitness Identifications

  1. Violates Due Process If:
    1. Procedure was unnecessarily suggestive, AND
    2. Unreliable
      1. FACTORS:
        1. Opportunity to view suspect at time of crime
        2. Degree of attention
        3. Accuracy of prior description
        4. Level of certainty
        5. Time gap
  2. Show-Ups: Unnecessarily suggestive → Only admissible if exigent circumstances (about to die)
    1. Police still frequently do these, but just NOT allowed to use at Trial

10. 6A Right to Counsel with Identifications

  1. Post-Indictment Lineup: Considered to be a “critical stage” in the adversarial process, so if lineup, 6A attaches
    1. Rule: A witness identification of a criminal suspect conducted in the absence of legal representation violates the Sixth Amendment right to the assistance of counsel.
  2. IN-Court ID: If prosecution can prove by clear and convincing evidence that the in-court ID was not the product of the police lineup, might not be excluded
    1. FACTORS:
      1. Prior opportunity to observe alleged criminal act
      2. Existence of any discrepancy between any pre-lineup description and the D’s actual description
      3. Any ID prior to lineup of another person
      4. ID by picture of the D prior to lineup
      5. Failure to ID the D on a prior occasion
      6. Lapse of time between alleged act and the lineup ID
      7. Those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup
  3. Photo Array: There is NO 6A right to counsel at a photo lineup, even if such a procedure occurs after formal criminal proceedings have commenced (D is not present)
  4. Only time 6A Violation: Post-6A Attachment / In-Person Lineup

11. Right to Appointed Counsel

  1. RULE: States are required to appoint a government-funded attorney for indigent criminal D’s for all felony criminal cases (Gideon)
  2. Three Main Systems (State):
    1. Public Defenders
    2. Contract Lawyers
    3. Appointed Lawyers
  3. Felony vs. Misdemeanor
    1. Felony: ALWAYS appointed counsel
    2. Misdemeanor: If convicted of a misdemeanor and the D’s request for appointed counsel is denied, the judge may NOT sentence D to any jail time
      1. An ACTUAL sentence of imprisonment is required for appointed counsel in misdemeanor cases
  4. Which 6A right is more fundamental?
    1. Jury Trial Right: Offenses punishable by 6 MONTHS OR MORE → Right to jury trial
      1. Authorized → D can have this right and NO right to appointed counsel (Actual)
  5. First Appeal: D has a right to counsel on FIRST appeal
    1. Not right given in Constitution, but every state by statute has provided right to an appeal

12. Pro Se D’s (Right to Decide Whether to Have Counsel)

  1. RULE: D’s have a Constitutional right to represent themselves in court OR to waive assistance of counsel (same result) → Technical knowledge of law does not matter
    1. WAIVER:
      1. Knowing
      2. Intelligent
      3. Voluntary
      4. Advised of Dangers → Judge must advise D of dangers of representing himself and to make certain that this is his final decision, because once it’s done, it’s done
    2. History: Originally, D’s were required to represent themselves
    3. Implied Within 6A Text: “Right” implies the option to have assistance of counsel (Attorney is assistant, NOT master)
  2. Standby Counsel: Counsel appointed to sit in court with D and answer any Q’s he has
    1. Technical Advisor → Not actually representing the D
    2. D may reject standby counsel, but the judge may force it

13. Ineffective Assistance of Counsel

  1. Two-Part Test: Strickland
    1. Deficient performance AND
      1. Objective Standard of Reasonableness: Whether counsel’s representation fell below the objective standard of reasonableness → D must identify with precision the acts or omissions that he claims were constitutionally unreasonable
      2. Court: Evaluates from lawyer perspective at time of act or omission → Highly deferential to counsel
      3. Presumption: Effective representation (rebuttable)
    2. Prejudice as a result of deficient performance
      1. Standard: “But for” the lawyer’s deficient performance, the outcome would have been different (reasonable probability)
  2. Strategy Decision: If strategy decision, virtually unchallengeable by D
  3. Challengeable Deficient Conduct:
    1. Legally mistaken understanding of law of certain area of law
    2. Failing to prepare for trial
    3. Failure to uncover extensive evidence
    4. Failure to submit timely motions → TIMELINESS in general
    5. Being completely unaware of relevant law
    6. Drinking and Sleeping → Can still be hard to prove; Must be able to show that the reason for missing a particular important piece of info was the direct result of the drinking or sleeping
  4. Factually Guilty D Test: In a situation where D plead guilty, but later discovered particularly important info that could have led lawyer to not advise D to plead guilty, D must satisfy BOTH
    1. That he would NOT have plead guilty, AND
    2. There was a reasonable probability of acquittal at trial
  5. Order of Prongs: May address prejudice question first if doing so would make disposition of the case easier (if D cannot prove prejudice, then proving deficiency doesn’t matter)

4th Amendment → The right of the 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.

5th Amendment → No person shall be held to answer for a 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 (Self Incrimination), 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.

6th Amendment → 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 wherein 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. (Right to Counsel)
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