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44 Cards in this Set

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Tension btwn. Truth Finding and Liberty (stressed as the big theme of the course)
Community would like to know “Who did it?” and wants to capture and punish. In the effort to sanction the guilty and not the innocent we put limits on our executive branch officials in their pursuit of truth because we have things we value more than the truth. Ways of finding the truth that “shock the conscience” are abhorrent to us. These tensions will always exist because the language in which we use to resolve the tension incorporates the tensions (they self capture these tensions). EX: 4th Amend. → We are to be secure against “unreasonable searches and seizures.” (the tension comes out of the question of what is reasonable i.e. pumping of a stomach, blood test, etc.) EX: 5th Amend. → No compulsion. (what is the meaning of compulsion)
Reasons for not initially having a Bill of Rights in the orig. constitution
(1)The government was one of limited and delegated powers and has not authority to infringe rights. (this is the primary argument)

(2)If you start listing rights you might leave some important rights out and it will be assumed that those rights are open for infringement .
What is the of fundamental rights?
The language used in the Bill of Rights assumes that those rights exist (“Congress shall make no law…”) they are not creating those rights but rather protecting fundamental rights that already exist…stuff like individual freedom etc. These rights exist without the first amendment. This is the idea of natural law.
What does 14th A Due Process Mean?
The phrase used in the beginning was whether it was necessary to fundamental fairness. To rise to the level of a constitutional violation it had to violate our idea of what is fundamentally fair. To find if there was a constitutional violation the court looked at the “totality of the circumstances.”
What are the two theories of incoporation?
(1)The Theory of Total Incorporation argued that the Bill of Rights meant Due Process.

(a)The conundrum of the total incorporation theory is that if Due process equals the bill of rights then the due process language in the 5th amendment is redundant. (DP = BR → including the 5th amend. DP) it is circular and flawed logically.

(2)Theory of Selective Incorporation argued that various provisions of the Bill of Rights have been incorporated to the states i.e. into the meaning of Due Process. (If the process cannot be deemed fair absent certain rights, they are incoporated into the DPC 14.
Due Process Formula
Due Process Formula: DP is both less than and greater than the Bill of Rights. DP< & > BR.
What does it mean that Due Process is both less than and greater than the Bill of Rights?
Due process is less than the bill of rights because it does not equal the bill of rights but rather is only partly incorporated. But, is greater than the Bill of Rights because Due Process requires things like innocent until proven guilty requirement which is not in the constitution but is never the less a part of Due Process and needed to maintain the fundamental fairness that Due Process requires. These rights are upheld under a fundamental fairness theory extending out from the Bill of Rights Due Process and have become part of the Due Process requirement. If the process cannot be deemed fair absent certain rights they are incoporated into DPC14.
What would be considered more than DP? (Freestanding Due Process?
Some due process rights are not found in the text of the BR: competency to stand trial (fundamentally unfair to try someone who does not know what is going on, beyond a reasonable doubt evidentiary standard, innocent until proven guilty. (None of these rights are in the constitution but they are considered part of Due Process).

(ii)They are considered necessary to fundamental fairness.
Schmerber v. California
bood extraction case. The SC decided this case on a 14th fundamental fairness basis rejecting the guys argument that he could not be compelled to be a witness against himself. The SC restricted the phrase to mean actual testimony and further
What are some substantive meanings accociated with the meaning of fundamental in criminal procedure?
"implicit in ordered liberty", "at the base of our civil and political institutions", "revolting to sense of justice", or "shocking to conscience".
Is there an Equal Protection Clause in the Bill of Rights?
Duncan v. Louisiana
When a court says there has been an incorporation of a certain rights does that mean there has been a incorporation of all the interpretations of that text? Ans. YES “for the most part”

It is not a "jot for jot case for case"
What is an example fo the fact that incorporation of a right incoporates all interprations of it "for the most part?"
Example: What does it mean to have a jury trial in a criminal case under the 6th amendment?

(a)Does it say in the six amendments how many members of a jury are required? N

(b)But the requirement in federal cases is a unanimous vote by twelve jurors a right which has not been incorporated by the states and is not a requirement of the incorporation of the right to a jury trial.
(i) This is not a requirement in the states where less than a twelve person jury is allowed.
(ii) In the state while a jury trial is still required there has not bee a “jot for jot case –for-case” incorporation of the twelve person unanimous vote required by the federal courts
(c) Note: that “in all criminal prosecutions (sixth amend.) does not mean all criminal prosecutions in the states check out Baldwin v. New York (pg. 30) (no offense can be deemed “petty”, thus dispensing with the fourtheenth and Sixth amendment rights to jury trial, where more than six month incarceration is authorized.)
(d) Note: “There is the language and then the languages as interpreted by custom and practice” Prof. Kader
What is the Retroactivity problem?
When incorporation was announced and as it developed a problem arose in relation to who would benefit from the decisions of these constitutional interpretations and rights.
Who are the individuals affected by retroactivity?
(a)Someone who’s Case has already been heard.

(b)Someone whose case is being heard now (trial) or under direct review (appeal.)
What was Harlan's Desist dissent on the application of retroactivity?
“All new rules of constitutional law must be applied to all those cases which are still subject to direct review at the time the new decision is handed down.” (clear break) (this is now the law)
What are the two exceptions to Harlan's retroactivity rule?

Teague v. Lane
A new ruling should be applied retroactively to cases on collateral review only if:

(a)Something/ behavior that someone can not be put in jail for i.e. can not constitutionally be a crime (is not constitutionally a crime anymore) differentiated from a crime that is no longer a crime b/c of a legislative change (which can be changed back) the difference being is that when something cannot constitutionally be a crime the legislature may no longer make it so . (ex: In jail for flag burning- 1st amendment protected right – cannot be made a crime at all.)

(b)If there is a right that is being proclaimed which goes to the accuracy of the result of the conviction. (this is not a vigorously applied exception)
What is a new rule in regards to retroactivity?
"Where reasonable minds can differ about the result of a decision before it is rendered it is a new rule."
Would Gideon have been able to get back into court had his decision came about before incorporation?
Yes, probably with a fundamental fairness argument and his right to counsel.
Describe the Miranda, Edwards, Roberson Trilogy
M = right to not self incriminate (right to have counsel present during interogation)

E= prohibits the police from intitating further interrogation once a suspect has asserted his right to counsel

R= says that the above restriction applies even when the further interrogation relates to a different crime.
Shriri v. Summerlin
“Accuracy of the finding.” The question in this case was whether this exception was triggered.

(1)Discussion: The person has been sentenced to death. The determination of whether his crime desereved the death sentence was determined by a judge. The SC rules that this is something (death) that needs to be determined by a jury.

(a)First in Aprendi then in Ring the SC says that a jury trial is required.

(b)The guy tries to get back into court arguing that the second exception had been triggered.

(2)Question Presented: The accuracy in question is whether the accuracy of the death sentence is appropriate when held so by a judge and not a jury.

(a)The SC disagarees and says that the accuracy of the death sentence finding is not any more or less accurate when held by judge or jury.

(b)Dissent argues that murder is a heinous cruel or depraved as determined by community standards.

(c)What is this an example of ? That the second exception is a hard sell. If it is not triggered by the death sentence then that should give you a hint.
Due Process, Individual Rights and the War on Terrorism:Comments on the Hamdi and Hamdan Decisions:
Due Process: These cases are an example of the due process being more than the Bill of Rights.

(1)The question is what kind of due process is due?

(2)In military tribunal setting the accused my be excluded during the proceedings. Be tried in absentia. Also the accused may be precluded from learning what info. was presented during their absence. Any info. That they believe is probative is admissible including hearsay and evidence obtained through coercion.
Sixth Amendment Right to Counsel
Sixth 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 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 Assistance of Counsel for his defense.”
What are the multiple sources of the right to counsel?
The right to counsel has multiple sources, including the 6th amendment, the due process clauses (5th A & 14th A) the equal protection clause (14th A), state constitutions, as well as the federal and state statutes.
Powell v. Alabama (“Scottsboro Case”).
SC found a due process violation. The Court examined the totality of the circumstances, a 14th Amendment Due Process fundamental fairness approach, and considering that defendants were young, illiterate, no counsel until day of trial, no attempt to investigate, etc, the Court found defendants’ due process rights violated. In Powell the court was concerned that there was no adequate representation for the youths. Why was there a due process violation “in light of all the evidence” (case by case analysis). Kader calls it the godfather of the right to counsel. They do not say there is violation b/c there was no counsel they say there is a DP violation b/c in light of all the circumstances there was a fundamental fairness violation. Although initially read to hold that it’s unfair as a matter of constitutional law to send someone to death without counsel, the rule of the case is that under these circumstances, it’s fundamentally unfair to do so.
i)bridge between fundamental fairness approach and bright line incorporation approach of Gideon, as there is language supporting both approaches. Note: DPC14 case, not 6A case.
Johnson v. Zerbts
(indigent federal defendants case). (this is a bright line decision) the court held that the Sixth amendment requires counsel in federal court in criminal proceeding unless the defendant waives the assistance of counsel.
Betts v. Brady
(This is a pre-right to counsel incorporation case) Indigent defendant found guilty without counsel. In Maryland at that time counsel was only provided in certain cases, which was not here. The SC says the DPC 14 requires appointment of counsel only where “special circumstances” indicates the defendant cannot adequately defend himself. This is a moderately bright line b/c if the circumstance exists, you have DPC 14. The core interest is trial fairness.

i)There was a withholding of the SC to impose or totally incorporate the right to counsel for the states.

ii)Why does the court hold here that it is okay to convict the guy without counsel? Ans. There is no evidence of “special circumstances” which would trigger the right to counsel.
iii) The SC says the guy does not fall under any of the “special circumstances” and therefore is not entitled to counsel. (literacy and intelligence were important factors in determining whether special circumstances existed.)
Giddeon v. Wainwright
Indigent guy was found guilty and was not given representation. Lower court says that he is not entitled to counsel. He is a long time petty thief (recidivist). Under the Betts rules he was not entitled to counsel. The SC says that the Betts rule was wrong. They overrule Betts and says that a bright line right to counselexists and says that states must appoint counsel for indigent defendants in all felony cases.
i)Gideon v. Wainwright, 372 U.S. 335 (1963) (BLR). At his felony burglary trial, Gideon asked for appointment of counsel, but was refused. The court correctly applied the law at the time, citing lack of capital penalty, fifth offense so Gideon knew the routine, not illiterate, not a youth thus no special circumstance existed mandating counsel. Gideon was convicted and sentenced to five years. He then brought a habeas corpus petition asking for a bright line rule incorporating the Sixth Amendment right to counsel. The Court agreed, announcing a bright line rule that states must appoint counsel for indigent defendants in all felony cases. Gideon was entitled to counsel not because it was fundamentally unfair under the circumstances, but because his liberty was being taken from him—in every case in which liberty is going to be taken, counsel is required.
ii) Getting from Representation to Appointment: “Fundamental and essential to a fair trial” The decision is that there cannot be a fair trial without representation and so then to ensure a fair trial counsel must be appointed.
iii) Look at the 22 states reference history.
iv) After Gideon. Right to counsel is a bright-line rule.
Argersinger v. Hamlin
Lower court says that the right to counsel only applies when at least 6 months imprisonment many be applied—they distinguish Gideon—the court argues b/c the jury trial is not fully incorporated then maybe the counsel requirement is not either. The SC rejects this argument b/c a fair trial can still be achieved w/o a jury where the same is not true when the person is w/o counsel.
Scott v. Illinois
The Court considered whether the Sixth Amendment right to counsel extends to cases where the defendant may be fined or imprisoned but only a fine is imposed. The Court distinguished actual imprisonment from “the mere threat of imprisonment.” The line for mandatory appointment of counsel is drawn at actual imprisonment, forcing the court to consider before trial and hearing of the evidence whether to impose imprisonment. The distinction is that there is bright line right to counsel in absolute loss of liberty cases not in threat to liberty cases.

Know: That Scott doesn’t’ mean you can’t have counsel when threatened with a fine just that that right is not absolute.
Baldasar v. Illinois overruled by Nicholes v. U.S.
The court held that upon a second conviction a past uncounseled conviction could not be used to enhance the sentence. This decision was overruled in Nichols v. United States, where the court reasoned that only the latest conviction is being punished, and the sentence may be set in light of all prior bad acts (past conduct) whenever the government can prove by a preponderance of the evidence that the defendant committed the acts. The defendant has the option to try to convince the court of the invalidity of the prior uncounseled conviction. Thus, “an uncounseled misdemeanor conviction, valid under Scott because no prison term was imposed, is also valid when used to enhance punishment at a subsequent conviction.” (This is the justification for using a prior convictions to enhance a sentence.)
Alabama v. Shelton
Probation revocation hearing. Suspended sentence mechanism: even if you sentence is suspended you are entitled to counsel. “A suspended sentence is a prison term imposed for the offense of conviction. Once the prison term is triggered, the defendant is incarcerated not for the probation violation but for the underlying offense The uncounseled conviction at that point results in imprisonment it ends up in the actual ‘deprivation of a person’s liberty.’ Deprived of counsel when tried, convicted, and sentenced, and unable to challenge the original judgment at a subsequent probation revocation hearing, defendant in Shelton’s circumstance faces incarceration on a conviction that has never been subjected to the crudicible of meaningful adversarial testing.

i)The argument in the lower court was that the setting in a probation revocation hearing is not in an adversarial setting. In a probation revocation hearing you are already convicted. So…the 6th amendment right to counsel is not implicated.
Describe the vertical and horizontal scope of the right to counsel?
Know that there is a vertical right to counsel (substantive→ determined by what kind of accusations entitle you to the right to counsel) & horizontal → which is sort of a timeline – i.e. when do these rights attach and when do they end.
Substantive (kinds of Crimes)
When does the right to counsel attach pre-trial?
Attachment of Right to Counsel

a)The 6th Amend. Right is afforded to the accused when he is charged (this is the starting point)

b)Pre-Trial Critical Stages: this is when the right to counsel initially attaches → Critical stages are those pre-trial stages which could affect the fairness of the trial / prejudice the outcome of the trial. (the scope of the right in these stages extends forward → when the (horizontally.)
guy is charged.
Does some one have a six amendment right to counsel postrial?
No. The sixth amendment does not extend. Once the person is convicted and is no longer "the accused" the 6th A right to counsel ends. A persons right to counsel on appeal is a mixture of equal protection and due process. The reasoning being that where errors have occured below it would be fundamentally unfair to let only those who could afford an appeal correct the errors. Without counsel the guy wouldnot get a fair appeal. 14th amendment.
Griffin v. Illinois
Prior to Griffin full direct appeal could only be had in Illinois by furnishing the appellate court with a bill of exceptions or report of the trial proceedings, certified by the trial judge. Preparation of these documents was sometimes impossible without a stenographic transcript of the trial proceedings, but such a transcript was furnished free only to indigent defendants sentenced to death. Griffin upheld the contention that the due process and equal protection clauses of the fourteenth amendment require that all indigent defendants be furnished a transcript, at least where allegations that manifest errors occurred at the trial are not denied.
What is an Equal Protection inquiry?
It an inquiry into whether disparate treatment exists.
Douglas v. California
The court cites Gideon and supports its decision on mostly equal protection grounds. The court decides the there is a bright line right to counsel on appeal. “For there can be no equal justice where the kind of appeal a man enjoys depends on the amount of money he had. There is lacking that equality demanded by the Fourteenth Amendment were a rich man, who appeals as of right, enjoys the benefit of counsels examination into the record, research of the law and marshalling of argument on his behalf, while the indigent, already burdened by a preliminary determination that his case is without merit, is forced to shift for himself. The indigent, where the record is unclear or the errors are hidden, a has only the right to a meaningless ritual while the rich man has a meaningful appeal.
Due Process v. Equal Protection:
(a)Due process is about fundamental fairness. (there is nothing explicit in the constitution granting a person an appeal, however, a due process argument can be made) In a appeal effort w/o the right to counsel would not afford a defendant a fair appeal.

(i)“Due Process” emphasizes fairness between the State and the individual dealing with the State, regardless of how other individual in the same situation may be treated.

(b)Equal Protection is an inquiry about disparate treatment.

(i)“Equal protection emphasizes disparity in treatment by a State between classes of individual whose situations are arguable indistinguishable.
Ross v. Moffit
(this is the big case in this area of the law): (no right to counsel on discretionary appeal) The D wanted counsel to help him prepare a writ. of cert. to the state supreme court (discretionary appeal). Right to counsel on first appeal is not denied. Court used Douglas and Griffin. The court concludes that there is no due process violations in not affording the D a right to counsel on a discretionary appeal.

(1)Reasoning: There are significant differences between the trial and appellate stages of a criminal proceeding. The purpose of the trial stage from the State’s point of view is to convert a criminal defendant from a person presumed innocent to one found guilty beyond a reasonable doubt. The state employs a prosecuting attorney who presents a case against the defendant. Under these circumstances any person haled into court that is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him. Equal protection requires that indigents have an adequate opportunity to present their claims fairly within the adversarial system. The State cannot adopt procedures which leave an indigent defendant entirely cut off from any appeal at all by virtue of his indigency or extend to such indigent defendants merely a meaningless ritual while others in better economic circumstances have a meaningful appeal. At the discretionary appeals stage the defendant will have at the very least a transcript or other record of trail proceedings, a brief on his behalf in the Court of Appeals setting forth his claims of error, and in many cases an opinion by the Court of Appeals disposing of his case. These materials, supplemented by whatever submission respondent may make pro se, would appear to provide a supreme court with adequate bases on which to the base its decision to grant or deny review.

(a)Due process does not require a perfect trial just a fair one.

(b)Equal treatment offered by the state is not looked as a constitutional right in the subject of discretionary appeal.

(i)What does the court say about disparate treatment? Ans. The court says that Equal protection is not violated when there is adequate opportunity.

1.Declining to extend Douglas, the Court stated that absolute equality is not mandated, only adequate access. The indigent defendant is not denied access to the state high court, because a full record has been developed at trial and on the first appeal. Defendant can make his appeal pro se on the basis of this record.
Halbert v. Michigan
The question is whether you are entitled to counsel on discretionary a appeal from a plea of guilty/ or nolo? (Note: That what the D is appealing is the sentence /he already pled guilty but disagrees with the sentence.)

(1)Problem: Is that this is a first appeal but is considered discretionary by Michigan state statute. (Remember that b/c he has pled guilty his is no longer the accused.) In other words it is a hybrid. The Mich. SC refused to hear the case.

(a)Is this is Douglas (right to counsel on first appeal) or a Moffit (no right to counsel on discretionary appeal) case? Ans. The court says that it is the right of first appeal on the question of sentence and therefore the right to counsel is attached.

Halbert asked the trial court to appoint counsel to help him prepare an application for leave to appeal to the intermediate court, stating that his sentence had been misscored, that he needed counsel to preserve the issue before undertaking an appeal, that he had learning disabilities and was mentally impaired, and that he had been obliged to rely on fellow inmates in preparing his pro se filings. The court denied Halbert's motion, citing Bulger.

Whether formally categorized as the decision of an appeal or the disposal of a leave application, the intermediate appellate court's ruling on a plea-convicted defendant's claims provides the first, and likely the only, direct review the defendant's conviction and sentence will receive. Parties like Halbert, however, are disarmed in their endeavor to gain first-tier review. d)
Other Rulings on the Right to Counsel.
Cannot argue ineffective assistance of counsel where there is no right to counsel. Wainwright v. Torna (1982) (defendant’s retained lawyer failed to timely file petition for descretionary review in state supreme court). See also Pennsylvania v. Torna (1987) (no right to counsel in habeas proceedings, so appointed lawyer who deems claims frivolous is not bound to write a brief or make any other effort).

ii)No right to counsel in habeas proceedings for death row inmates. Murray v. Giarratano (1989). Habeas corpus is a civil proceeding, not criminal.

iii)No absolute right to counsel at parole revocation hearings. Such hearings must be fundamentally fair, so this is determined case-by-case. Gagnon v. Scarpelli

iv)Transcripts must be free to indigents, Griffin, even when only fine imposed, Mayer v. Chicago, and filing fees may not be imposed on indigents. Burns v. Ohio.

v)The state must provide to an indigent an expert witness if without the expert he would be deprived of a fair opportunity to present his defense. Ake v. Oklahoma (1985). This has been read narrowly, the expert must be absolutely essential to the defense.
Comment on whether incorporation repeals the text of the 14th A
Incorporation doesn’t repeal the full text of the Fourteenth Amendment. It is still possible to make a fundamental fairness argument where the incorporated right doesn’t occupy the entire field. One might be able to show that in the totality of the circumstances it was fundamentally unfair to impose punishment without counsel. Special circumstances might include extremely complicated charge, extremely high fine, etc.
Comment on the incoporation of the literal text of SC decisions
As against the states, the literal text is not incorporated—it doesn’t apply to all criminal prosecutions. Deprivation of life is covered, serious offenses is covered (Gideon), less serious offenses w/ imprisonment (loss of liberty) is covered, but offenses resulting in only a fine or other deprivation of property is not covered. There may be some chance for a DPC14 fundamental fairness argument here, though.