WEEK 4 - UNIT 4
Criminal Procedure
Professor Ann Marie Lampariello-Perez
Wrap Up - Unit 3/Week 3
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We learned about the grand jury.
We went through the
procedures/process
We discussed the alternative
Preliminary Hearing
We discussed the difference
between a grand jury and a trial jury
We touched upon double jeopardy.
Seminar Question:
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Examine the three amendments to the US
Constitution that specifically deal with a
defendant’s rights:
– 4th amendment
– 5th amendment
– 6th amendment
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Special focus will center on the purpose of
the right to remain silent and the right to
counsel and to confront witnesses and to
a speedy trial.
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, 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.
5th Amendment (con’t)…
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The text doesn’t really cover the right to
remain silent provision of the 5th Amendment.
But, does anyone know why this provision was
placed into the fifth amendment – what is it’s
purpose?
The framers of the Constitution had seen
confessions forced through atrocious means,
including torture. Why are forced confessions
deemed to be inherently unreliable?
5th Amendment…answers
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The excessive, intensive government conduct is what compelled the people to forge
both a new government and its framework, which continues to define the basics of
today’s governmental authority. As you are probably beginning to notice, all of the
Amendments are designed to limit government power.
The test of whether a confession has been forced is whether or not it was obtained
voluntarily.
The first confession case decided by the Supreme Court was Brown v. Mississippi in
1936, when the Court held that confessions obtained through brutality and torture by
law enforcement officials are violations of due process rights. (5th). When Brown
denied a murder the sheriff hung him from a tree and whipped him. He maintained his
innocence, but after days of several more beatings he finally confessed.
For many more years the Supreme Court heard cases related to whether a confession
was voluntary, designing different tests to determine voluntariness. It wasn’t until 1964
that the Court began to move away from a case-by-case voluntariness analyses and
forged a new standard. Two cases in 1964, Massiah v. United States and Escobedo v.
Illinois considered a single occurrence: When the process shifts from investigatory to
accusatory - when its focus is on the accused and its purpose is to elicit a confession,
the accused must be permitted to consult with his lawyer. The court saw interrogation
to elicit a confession as a critical stage in the judicial process. Two years later the Court
decided Miranda.
Miranda extended the Escobedo decision and shifted the area of inquiry to the Fifth
Amendment. Prior to Escobedo, the right to counsel didn’t exist until the trial began.
Escobedo brought the right to counsel to the police station before trial; Miranda brought
the right to counsel into the street if an interrogation is to take place.
5th Amendment Questions>>
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Why is it harder for the defense to claim
that a confession wasn’t voluntary if
Miranda was given before the confession
was made?
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Why, then does Miranda lessen the
burden on the State and shift the burden
to the defendant?
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
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.
 What rights do you see here?
RIGHT TO A SPEEDY TRIAL
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Why is it important to the prosecution that there be no unnecessary
delay?
(witnesses harder to find; memories fade, any public sentiment mellows,
evidence may disappear; only way society might be protected against a serious
offender; delay generally weakens the prosecution’s case; society may need to
pick up tab to support offender’s family if pre-trial detention is lengthy.)
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Why is it important to the defense that there be no unnecessary delay?
(From the Barker v. Wingo case: Delay can be detrimental to any rehabilitation
if the offender is subject to a lengthy pre-trial detention; it often means loss of a
a job, it disrupts family life, enforces idleness. Most jails offer little or no
recreational or rehabilitative programs; if a defendant is locked up he is
hindered in his ability to gather evidence, contact witnesses and otherwise
prepare his defense. Imposing those consequences on anyone who has not
yet been convicted is serious. Even if he is not incarcerated he will live under a
cloud of anxiety, suspicion and often hostility).
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What does speedy mean?
(Delay alone doesn’t justify dismissal)
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What four factors did the Barker v. Wingo case establish to determine
whether there has been a speedy trial?
– 1. Length of delay 2. The reason for the delay 3. The
defendant’s assertion of his right 4. Prejudice to the defendant.
6th amdmt-speedy trial (cont)
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Barker v. Wingo did not establish a definitive answer to what is
speedy! No specific length of time was set by the case. In response,
Congress decided to pass legislation called the Speedy Trial Act of
1974. It applies only to federal courts, but it sets specific time limits,
requiring indictment within 30 days of arrest, arraignment within 10
days after indictment, and trial 60 days after arraignment. This
stringent set of protections goes beyond what the Supreme Court
thinks is fair. Most states passed their own version of the federal
Speedy Trial Act, the most common time period being 90 days from
arrest to trial. Because of court backlogs, most states and even the
federal government have enacted exceptions to their Speedy Trial
Acts. The most common exception is whether or not delay is caused
by the defendant's motions.
Can the right to a speedy trial be waived by the defendant?
(Yes, it’s done through a Motion for Continuance)
What does “public” mean in the right to a speedy and public trial?
(Not secret. To prevent the abuses that could occur in private, the public is
allowed to be present at all trials unless there is a compelling government
interest such as national security or unless closed by statute such as in
juvenile cases. Hopefully, you have addressed this issue in your answer to
the DB questions.)
6th Amendment - Public Trial
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The next right is to an impartial jury.
What does impartial mean?
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--- Is there anything in the Sixth
Amendment that says jury of one’s
peers? Where does that phrase come
from?
Jury of Peers (6th Amdmt)
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From Glasser v. United States: Jury
must be drawn from a fair cross section of
the community
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From Fay v. New York: persons with
varying degrees of training and intelligence
and with varying economic and social
positions. The jury should represent all
qualified classes of persons. Various cases
have concluded that as long as there has
been no systematic exclusion of any class of
persons, the cross-section requirement is
fulfilled.
RIGHT TO COUNSEL (6th)
Does the Sixth Amendment say anything
about how that attorney will be paid?
LIGHTNING ROUND
 What case (and what year) established that
a defendant charged with a capital crime
(murder) must be provided with an
attorney?
(Powell v. Alabama – 1932)
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What case (and what year) established that
a defendant charged with a felony must be
provided with an attorney? (Gideon v.
Wainwright – 1963)
LIGHTENING ROUND…
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What case (and what year) established that a
defendant charged with a misdemeanor that
holds the potential for jail time, must be provided
with an attorney? (Argersinger v. Hamlin – 1972)
What case (and what year) held that the accused
had a right to an attorney during any custodial
interrogation? (Escobedo v. Illinois- 1964)
What case ( and what year) held that law
enforcement had to advise the defendant of his
constitutional right to an attorney and to remain
silent? (Miranda v. Arizona – 1966)
Why does a defendant have the right to counsel?
(government has the power and resources they will
bring to bear against the defendant. The defendant
will never be able to match that power)
Waive Your Right to an Atty?
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What case first established that the
defendant can waive his right to an
attorney?(Adams v. United States)
What case held that, in fact, there is a
Constitutional right to self-representation?
(Faretta v. California)
What must the Judge determine about the
defendant before allowing the defendant to
waive his right to an attorney?
(That waiver is knowingly and intelligently
made – Language from Faretta: literate,
competent, and understanding and that he was
voluntarily exercising his informed free will)
Housekeeping…
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This week there is a paper due.
Again, it is a shorter paper…only three
pages.
Make sure it is in proper format…check
the DocSharing tab for an example of
format.
In this paper, you will take a criminal arrest
and apply the facts from that arrest to
what you have learned in this class.
For example, miranda, bond, grand jury
and preliminary hearing and arraignment.
Housekeeping (con’t)…
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Next week (not this one, but the next
one) is mid term week. You have a
50 question exam. It is multiple
choice or true/false.
The topic in inclusive of all that you
have learned so far.
There is no other assignment that
week…no reading, no discussion
board, no paper and NO SEMINAR!
Questions????
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Does anyone have any questions?
Feel free to email me at:
alampariello-perez@kaplan.edu
Thanks for a great class!
Good night and good learning this
week.
Professor Ann Marie Perez