Criminal Procedure
Class Nine
Today’s Topics: Right to
Counsel
Early Development
 Contemporary Standards

– Felonies
– Misdemeanors

Scope
– Critical Stage
– Post Trial
– Experts
Today’s Topics: Screening
& Charging

Discretion
– Police
– Prosecutors
Non-Prosecution of Crime
 Selective Prosecution

Today’s Topic: Grand Juries
& Preliminary Hearings

Initial Considerations
– Infamous Crimes
– Constitutional Requirements?
Procedures
 Evidence
 Subpoena Power & Appearances
 Preliminary Hearings

CHAPTER FIVE
Right to Counsel
Sixth Amendment

“[I]n all criminal prosecutions, the
accused shall enjoy the right * * *
to have the Assistance of Counsel
for the defence.”
Early Developments

Johnson v. Zerbst
– Held: Sixth Amendment requires
counsel in Federal Court in all
criminal proceeding, unless D waives
– Court viewed as jurisdictional
prerequisite
Early Developments

Powell v. Alabama
– Predates Johnson v. Zerbst
– “Scottsboro” case
– “The right to be heard would be, in
many cases, of little avail if it did not
comprehend the right to be heard by
counsel.”
Query
Why does a person accused of
crime need “the guiding hand of
counsel at every step of the
proceeding against him?”
 If Court has duty to provide
counsel, does D have duty to
request it?

Contemporary Standards:
Felonies

Gideon v. Wainwright
– “Gideon’s Trumpet” by Anthony Lewis
– Rejection of Betts v. Brady
– “Obvious Truth” that in our adversary
system of criminal justice, any person haled
into court, who is too poor to hire a lawyer,
cannot be assured a fair trial unless counsel
is provided for him.
– Why should denial of counsel be considered
“structural error” rather than subject to
harmless error analysis?
Determining Indigency



Gideon requires appointed counsel for
indigents in felony cases
Indigency is not much of an “issue” in
most jurisdictions
Typical mechanisms:
– Pauper’s affidavits
– Demonstrating eligibility for other
government services
– Conditioning probation on repayment of
Court costs and fees to counsel
Contemporary Models:
Delivering Indigent Defense
Public Defender
 Ad Hoc Appointment
 Mixed System


Texas Fair Defense Act, effective 11-02
Exercise

Identify a minimum of three
advantages and disadvantages to
each system
Contemporary Standards:
Misdemeanors
Rule: Defendant may not be
imprisoned for any offense unless
he is represented by or waives a
lawyer
 Applies to Misdemeanors

– Argersinger v. Hamlin
– Scott v. Illinois
Interplay With Right to
Jury Trial



Supreme Court has held there is no right to
jury trial where the maximum potential
imprisonment is six months or less
Query: Why did the Supreme Court not apply a
similar rule to the right to counsel?
Practical considerations: Argersinger and
Scott may require preliminary judgments by a
prosecutor and/or trial judge concerning how
likely a particular defendant is to be
incarcerated if convicted
Exercise

Subsequent classes will discuss
effective assistance of counsel at
trial - - what it means and what its
deprivation does to impact validity
of conviction
Exercise

In terms of Scott, consider:
– How is D supposed to present testimony?
– Assuming D wants to testify, does he give
narrative? Q & A?
– Must D object to questions on cross?
– If so, what is the effect of such objections
likely to be in the event there is a jury?
– If case is bench trail (to the trial court) how
far can defendant go in arguing with the
judge without prejudice in his defense?
Uncounseled Priors as
Enhancement

Enhancement: Increasing the
range of punishment for new
offense, based on prior conviction
Uncounseled Priors as
Enhancement
Illustration: “Three strikes you are
out” statutes
 Issue: Can conviction obtained at
trial conducted without a lawyer
be used to enhance punishment of
person charged as second
offender?

– Nichols v. United States
Scope: “Critical Stage”

Gideon teaches that indigent has right to
court-appointed lawyer at trial
Scope: “Critical Stage”

Issue: Are there other “critical stages”
where right to counsel is required - - either
prior to trial or after?
Scope: “Critical Stage”

Test for “critical stage”: Once there is a
formal charge, D has right to counsel at
any proceeding in court and at virtually
any appearance anywhere
– D may also have right to counsel if necessary to
safeguard an independent constitutional right,
such as in Miranda
Scope: “Critical Stage”

Courts will consider more than merely the
label applied to the proceeding
– Coleman v. Alabama
Scope: “Critical Stage”

CAUTION: Right to counsel has not been
extended to all pretrial phases of criminal
investigation
– Remember, Kirby v. Illinois
Beginning Adversarial
Proceedings
Formal Charge
 Preliminary Hearing
 Indictment
 Information
 Arraignment

Beginning Adversarial
Proceedings

Analytical Key: Filing of some
statement with Court having
appropriate jurisdiction,
expressing prosecutor’s beliefs
that proceedings that will lead to
conviction should begin
Post-Verdict


Principle: Right to counsel extended to
certain stages of criminal prosecution
following trial
Mempa v. Rhay (lawyer must be
provided for revocation of probation or
deferred sentencing) [later modified]
Post-Verdict



Douglas v. California (lawyer must be
provided for first appeal)
Ross v. Moffitt (no counsel for
subsequent, discretionary appeals or
petitions to U.S. Supreme Court)
Murray v. Giarratano (no right to
counsel for collateral attack)
– CAUTION: Some states provide for death
row inmates pursuing post-conviction
habeas corpus
Significance of Finding no
Right to Counsel
If no right to counsel, no right to
effective assistance of counsel
 Example: Errors of lawyers that
occur after the first appeal as a
matter of right create no
constitutional claim

– Pennsylvania v. Finley
Transcripts
Concept: If indigent defendant has
right to appointed lawyer on the
first appeal, she also has
constitutional right to relevant
transcript for purposes of appeal
 Right applies even for conviction
on appeal for ordinance punishable
by fine only

Transcripts
Indigents cannot be require to pay
appellate filing fee
 Indigent entitled to preliminary
hearing transcript free of charge

Probation and Parole Hearings
Despite Mempa, no absolute right
to counsel
 Only constitutional protection is
due process right to proceeding
that is fundamentally fair

Probation and Parole Hearings
Supreme Court requires case by
case approach in probation
revocation hearings
 Rationale: Parole and probation
hearings are more flexible
proceedings than criminal trials

– Gagnon v. Scarpelli
– Morrissey v. Brewer
Juveniles



In Re Gault: Due process requires
appointment of counsel in juvenile
proceedings
Note: Labeling a proceeding “criminal”,
“non-criminal” or “juvenile” will not
always be dispositive
Possible analytical key: Adjudication of
guilt
Experts



Court has treated access to experts
similarly to access to free
transcripts
Ake v. Oklahoma
Possible analytical key: Will D be
deprived of fair opportunity to
present defense if denied expert
Chapter Six
Screening and Charging
Federal Prosecutors




United States attorneys for each district
are responsible to the Attorney General
of the United States
United States attorneys are appointed
by President and confirmed by Senate
Decision about whether to appeal
rulings by trial court may be also
controlled by Solicitor General, who
decides when to seek certiorari in
Supreme Court
Process is somewhat centralized
State Prosecutors
Many states have systems that
place enormous power in local
prosecutor
 Common for these prosecutors to
be elected

State Prosecutors
Consequently, incentives of
particular prosecutors’ office may
be determined by voting
preferences of community
 In many states, the state Attorney
General has very little power over
the typical criminal case

Common Prosecutorial
Themes



Vast differences among jurisdictions in
allocation of prosecutorial authority
Vast differences among jurisdictions in
how prosecutors are selected
Common Characteristics
– Chief Prosecuting Official in given jurisdiction
has large discretion to bring or refrain from
bringing charges against particular people and
organizations
– Prosecutorial discretion continues even after
initial charging decision
Discretion
Choices are made at all levels of
criminal justice system
 Some choices are controlled by
standards

Discretion
Majority of choices have room for
wide latitude
 To a large extent these choices are
“uncontrolled” in that people who
make them are not bound to follow
specific guidelines

Exercise: Full Enforcement



Query: How many have been stopped by
police officers for traffic violation, prank,
or some other act for which you could
have been cited or arrested - - and were
not?
Why do we have less than full
enforcement of the law?
How do you square concept of
individualized justice with theory of
equal justice under law? Shouldn’t
similar cases be treated alike?
Police Officer Discretion
Decision not to arrest is essentially
unreviewable
 Exercise: Scenario One, page 808.
Question: Should office arrest?

Prosecutors

Consequence of decision to charge
suspect with crime is greater than
consequence of deciding whether
to arrest
Prosecutors

Factors generally considered by
prosecutor:
– Suspect is guilty
– Enough evidence to secure conviction
– Community’s best interest served by
prosecuting

ABA Standards recognize that
prosecutors are not obligated to
present all charges
Reality Check

Key factor in deciding whether to
prosecute is a determination whether
case can be won

Identify a minimum of three reasons
influencing this factor
Special Prosecutors
Can private attorneys be appointed as
special prosecutors?
 Can a party benefiting from a court
order serve as special prosecutor?
 Can victim’s family hire “big gun”
litigator as special prosecutor?

Non-Prosecution

Is prosecutor’s decision not to
prosecute subject to judicial review?

What constitutional limitations are
implicated in this query?
Selective Prosecution

Context: Who is selected, for what
crime, in which jurisdiction

Background
– Wayte v. United States
– U.S. v. Armstrong (supplement)
Choice of Venue

Query: Why do prosecutors care so
much where charges are brought?
EXERCISE
D is investigated by Houston Police
Department for possession of cocaine
with intent to deliver. Pursuant to valid
arrest/search warrant, police go to D’s
home. More drugs are found there.
 At police station D is given Miranda
warnings.

Exercise, Con’t
D agrees to give oral statement but
won’t write anything down or sign
anything.
 Recording equipment doesn’t work, so
it appears confession will be out the
window under Texas Oral Confession
statute (Art. 38.22)

Exercise, Con’t

Is it permissible for
HPD to turn case
over to federal
prosecutors to
pursue under federal
drug laws?
Selection of Charges

Issue: Is there an equal protection or
due process violation in prosecutor’s
decision to charge the most serious
(highest punishment range) crime that
the facts can support?

U.S. v. Batchelder
Practical Considerations

Query: Why would prosecutor, as a
practical matter, want to go for the
greatest (highest) possible charge?
GRAND JURIES
Initial Considerations

Text of Fifth Amendment requires
indictment in “capital, or otherwise
infamous crime …”
Initial Considerations

What is an infamous crime?
– Are Texas misdemeanors infamous crimes?

Has 5th Amd requirement of grand jury
indictments been incorporated to the
states under 14th Amd?
Initial Considerations

Does Texas require grand jury
indictments?

Generally states considered either
indictment or information states
Indictment/Information

Indictment

Information

Grand Jury Foreman

Prosecutor
Common Characteristics





Who
What
When
Served on D
Filed in Court
Procedures
Selection & Qualifications
 Oath & Duties
 Secrecy
 Presence
 Appearance
 Attorneys

Evidence Considered
Issue: What constitutional limits are
placed on types of evidence that grand
jury may hear
 Hearsay?
 Rules of Evidence?
 Illegally seized evidence?
 Impact on subsequent trial?

Exculpatory Evidence

Issue: Does prosecutor have duty to
present favorable or exculpatory
evidence to Grand Jury?
– United States v. Williams

Related Concern: What ethical
considerations might apply?
Subpoena Power &
Appearances
Federal Grand Juries: nationwide scope
 Questions

– Is it permissible to call witnesses who will
add nothing new to knowledge of Gr Jy?
– Does it matter if these people will suffer as
result of being called to testify?
– Is subpoena & request for documents a 4th
Amd seizure
Subpoena Power &
Appearances

Questions, con’t
– Can defense attorneys be subpoenaed &
asked fee-related information? Impact of
attorney-client privilege?
– Does Gr Jy need probable cause to justify
subpoena?
– Following indictment can D be subpoenaed
in order to gather additional information?
– Is witness entitled to Miranda warnings?
PRELIMINARY HEARINGS
Basics

Principle substitute for Grand Jury
– Texas: Examining Trial

No right to post-indictment examining
trial
– Rationale: Probable cause is validly
established by indictment itself
Exercise

As defense lawyer, why would you want
examining trial? Why not?

As prosecutor, why would you want
examining trial? Why not?