CRJ 432 Exam 1
What are the decision points in the CRJ process?
(1) Initial Contact (2) Investigation (3) Arrest (4) Custody (5) Charging (6) Preliminary Hearing (7) Arraignment (8) Bail/Detention (9) Plea Bargaining (10) Trial (11) Sentencing (12) Appeal (13) Prison (14) Release (15) Post-release
Describe the following. What are the differences? a. pro bono counsel b. retained counsel c. appointed counsel d. public defender
(a) pro bono counsel: work undertaken voluntarily and without payment. Unlike traditional volunteering, it uses the specific skills of professionals to provide services to those who are unable to afford them. (b) retained counsel: members of the bar working in the private sector, either individually or in law firms, who are retained by a contractor or defendant (c) appointed counsel: a private attorney who is appointed by a court to represent an indigent defendant. Being indigent means that he or she can't afford an attorney. (d) public defender: a lawyer employed at public expense in a criminal trial to represent a defendant who is unable to afford legal assistance.
What refers to the "due process revolution"?
-The Warren court from 1961 to 1969 has been the most liberal supreme court. The "selective incorporation" doctrine laid the foundation for the Warren Court's "criminal procedure revolution." Many of its decisions applied the criminal procedure guarantees of the 4th, 5th and 6th Amendments to the states. -Supreme Court's expansion of individual rights in the 1960s.
What are the sources of American criminal procedure?
-U.S constitution -Judicial decisions -State constitutions -Common Law -Legislative statutes -Court rules -Agency regulations -Model codes
A criminal defendant has the right to retain counsel of his/her choice.
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A defendant does not have the right to be represented by a lawyer who has a conflict of interest.
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A defendant does not have the right to be represented by a person who is not a member of the bar.
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Court presumes that the counsel's conduct falls within the wide range of reasonable professional assistance. The defendant must overcome this presumption and prove "on a balance of probability" (preponderance of evidence) prove both prongs of the Strickland test in order to prove ineffective assistance?
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Criminal defendants not only have the right to counsel, but also the right to effective assistance of counsel.
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Every decision point in the CRJ process involves discretionary decision making by both the citizens and the officials.
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Generally, the clearance rate refers to the arrest rate.
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Rules and code of conduct enacted by Bar associations and widely accepted practices/traditions form the basis of reasonable conduct of counsel.
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What are the constitutional provisions that guarantee the right to counsel to the criminal defendants in state courts?
6th amendment
What is the constitutional provision that guarantees the right to counsel to the criminal defendants in federal courts?
6th amendment
Describe Total incorporation
All provisions were incorporate under the due process clause.
Who has the burden of proving that the counsel's performance was ineffective? What is the standard of proof of ineffectiveness?
An accused who claims ineffective assistance must demonstrate a deficient performance by a lawyer and a reasonable probability that but for the deficiency that the result of the proceeding would have been different.
Describe Powell, J.'s selective incorporation approach in Apodaca.
Apodaca v. Oregon, 406 U.S. 404, was a United States Supreme Court case in which the Court held that state juries may convict a defendant by a less-than-unanimous verdict in a felony criminal case.
Betts v. Brady Gideon v. Wainwright Argesinger v. Hamlin Scott v. Illinois Alabama v. Shelton Nichols v. U.S.
Betts v. Brady: States are not required in felony cases that do not involve life or death to furnish a defendant a lawyer. Gideon v. Wainwright: established the sixth amendment right of individuals charged with both misdemeanors and felonies to be represented by a lawyer at trial. Argesinger v. Hamlin: The right to counsel applies in a misdemeanor casethat carries the possibility of imprisonment. Scott v. Illinois: There is no right to counsel when a monetary fine is imposed. Alabama v. Shelton: the Court upheld the Alabama Supreme Court's ruling that counsel must be provided for the accused in order to impose a suspended prison sentence. Nichols v. US: Uncounseled convictions can be used to enhance the sentence on a later criminal conviction.
What are the different methods that the government can use under criminal procedure?
Discretion Detecting and investigating offenses Recording info on arresteeds
What is a "motion for discovery"?
Filed by the defense, asks the court to allow the defendant's lawyers to view the evidence that the prosecution intends to present at trial.
What rights are guaranteed by the 1st, 4th, 5th, 6th and 8th Amendments? Have the rights guaranteed by these provisions of the Federal constitution been available to criminal defendants in the states since the enactment of the Bill of Rights?
First Amendment: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." 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, 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 defence. 8th Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted. No, they only applied to the states after the Incorporation Doctrine and the 14th amendment
Which case allowed the right to counsel for "indigent" defendants charged with felonies in state courts?
Gideon v. Wainwright
Which case allowed the right to counsel for "indigent" defendants charged with misdemeanors in state courts?
Gideon v. Wainwright Maybe...Argesinger v. Hamlin
Review Hurtado v. California
Hurtado v. California, 110 U.S. 516 (19884). Establishes the fundamental fairness test to determine rights incorporated into the Due Process Clause of the Fourteenth Amendment. Grand juries are not required for death penalty prosecutions in state courts.
According to the FBI Uniform Crime Reports:
In the nation in 2017, 45.6 percent of violent crimes and 17.6 percent of property crimes were cleared by arrest or exceptional means. When considering clearances of violent crimes, 61.6 percent of murder offenses, 53.3 percent of aggravated assault offenses, 34.5 percent of rape offenses, and 29.7 percent of robbery offenses were cleared. Among property crimes, 19.2 percent of larceny-theft offenses, 13.7 percent of motor vehicle theft offenses, and 13.5 percent of burglary offenses were cleared. In 2017, 21.7 percent of arson offenses were cleared by arrest or exceptional means.
Review Palko v. Connecticut
Justice Cardozo writing for the majority rejected the blanket incorporation thesis. He noted that some Bill of Rights guarantees — such as freedom of thought and speech — are fundamental, and that the 14th Amendment's due process clause absorbed these fundamental rights and applied them to the states. Protection against double jeopardy was not a fundamental right, and therefore not protected by the 14th Amendment. The Court rejected the Hurtado Doctrine/Reasoning Protection against double jeopardy is not a fundamental right and thus falls outside constitutional protection
Does the CRJ process begin when a crime is committed?
Many crimes go unreported or undetected. Thus, the CRJ process begins only when the police are led to believe that a crime has been, is being or is about to be committed.
Is it true to say that the provisions of the Bill of Rights that relate to the CRJ process have always applied to the states?
No
When did the liberalization of the due process occur?
No clue
Assume that despite the defense counsel's deficient performance, the defendant is found guilty based on other evidence that is not affected by the counsel's performance, evidence that overwhelmingly prove the guilt of the defendant. Can the defendant prevail on a claim "ineffective" assistance of counsel?
No, because the goal is to identify whether or not the lawyers actions could have swayed the case one way or the other. Therefore, if absent the lawyers mistakes, if the verdict would have remained the same, they could not claim ineffective assistance of counsel.
Assume that the strategic choice adopted by the defense counsel during the trial or sentencing process fails to achieve an acquittal. Does this amount to "deficient performance"?
No. It only applies when the lawyer falls short of "reasonably effective competence expected of an attorney in a criminal case.
Does this mean that the indigent defendants have the right to be provided the best possible attorney of their choice by the state?
No. They are entitled to the attorney the state gives them
Who is an "indigent" defendant?
One who cannot afford an attorney
Review Powell v. Alabama
Powell v. Alabama, 287 U.S. 45 (1932). Prosecution for capital offense without effective legal representation violates Due Process Clause of the Fourteenth Amendment.
According to Strickland v. Washington what amounts to "deficient performance" and "prejudice"?
Proving that their lawyer was ineffective at trial is a way for convicts to get their convictions overturned, and therefore ineffective assistance is a common habeas corpus claim. To prove ineffective assistance, a defendant must show (1) that their trial lawyer's performance fell below an "objective standard of reasonableness" and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668 (1984).
Strickland v. Washington - what is the two-prong test adopted by the Supreme Court to evaluate the effective assistance of counsel?
Proving that their lawyer was ineffective at trial is a way for convicts to get their convictions overturned, and therefore ineffective assistance is a common habeas corpus claim. To prove ineffective assistance, a defendant must show (1) that their trial lawyer's performance fell below an "objective standard of reasonableness" and (2) "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668 (1984).
Review Rochin v. California
Rochin v. California, 342 U.S. 165 (1952). Evidence obtained in a manner that "shocks the conscience" violates Due Process Clause of the Fourteenth Amendment.
Which particular approach to due process has prevailed over time, and is dominant today?
Selective incorporation
Describe Selective incorporation
Some judges favored this approach as it went towards selecting certain rights and then applying them to the states.
Define an "indigent defendant"
Someone who is unable to afford counsel
Describe Fundamental fairness
State have to provide 2 basics of a fair trial.1.) Notice to defendants of the charges against them2.) A hearing on the facts before convicting and punishing defendants
How is criminal procedure different from criminal law?
Substantive criminal law defines the factual elements of criminal offenses, while criminal procedure address the procedures involved in the investigation, detection and prosecution of criminal offenses. The enforcement of criminal law is influenced by criminal procedure Criminal procedure regulates the authority of the policea
Describe Incorporation
The 14th Amendment due process clause incorporates the provisions of the BOR and apply them to state criminal procedure. The Incorporation Doctrine ... []Focuses on specific procedures [] Due process absorbed specific rights listed in the Bill of Rights []States have to apply the procedures outlined in the Bill of Rights
Kimmelman v. Morrison
The restriction on federal habeas review of exclusionary rule claims does not extend to ineffective assistance of counsel claims based on the attorney's failure to utilize the exclusionary rule.
Describe Total 'plus' incorporation
This approach includes the entire Bill of Rights plus additional rights outside of the Bill of rights.
Describe and compare the conservative and liberal approaches to the concept of due process.
Total Incorporation Approach: The total approach talks about how the entirety of the Bill of Rights is incorporated into the Due Process Clause (14th Amendment). LIBERAL Total Incorporation plus: This approach includes the entire Bill of Rights plus additional rights outside of the Bill of rights. LIBERAL Selective Incorporation: Some judges favored this approach as it went towards selecting certain rights and then applying them to the states. CONSERVATIVE Selective Incorporation Plus: This approach selects specific Bill of Rights and outside rights and applies them to the states. To add onto this, only a small portion of judges advocated for this approach. CONSERVSTIVE
Criminal defendants have the right to counsel at trial and during the pretrial process.
True
Are the U.S. Supreme Court's decisions on the U.S. Constitution binding upon the rest of the courts?
Yes (pp. 8 in text)
According to the FBI, law enforcement may clear a case when they:
a.Identify the offender. b.Gather enough evidence to support an arrest, make a charge, and turn over the offender to the court for prosecution. c.Identify the offender's exact location so that the suspect could be taken into custody immediately. d.Encounter a circumstance outside the control of law enforcement that prohibits the agency from arresting, charging, and prosecuting the offender.
The Supreme Courts approach to due process has been mostly "conservative" or liberal" over time?
conservative
According to Strickland v. Washington, does the right to effective assistance of counsel apply to both the trial process and the sentencing process?
defendant has a Sixth Amendment right to "effective assistance of counsel."An accused who claims ineffective assistance must demonstrate a deficient performance by a lawyer and a reasonable probability that but for the deficiency that the result of the proceeding would have been different.
In the early years immediately following the adoption of the Sixth Amendment guaranteeing the right to counsel, courts interpreted the right to counsel mean what?
defendants have a right to counsel at trial provided they can afford one.
Examples of exceptional clearances include, but are not limited to:
he death of the offender (e.g., suicide or justifiably killed by police or citizen); the victim's refusal to cooperate with the prosecution after the offender has been identified; or the denial of extradition because the offender committed a crime in another jurisdiction and is being prosecuted for that offense.
Nix v. Whiteside
issue over whether or not the 6th amendment right of a criminal to assistance of counsel is violated when an attorney refuses to cooperate with the defendant in presenting perjured testimony during trial Before his trial for murder, the defendant, Whiteside, discussed his planned testimony with his attorney, and said that he had seen "something metallic in [the victim's] hand", in contradiction to earlier statements that he had not seen a gun in the victim's hand. Whiteside's attorney, Robinson, had warned that he (Robinson) would have an ethical obligation to report perjured testimony to the court. Whiteside, on the stand, admitted that while he believed the victim had a gun, he did not actually see a gun in the victim's hand. Whiteside was convicted, and subsequently applied for a Federal writ of habeas corpus, on the grounds that his conviction was tainted under the Sixth Amendment in that his attorney's threat to disclose the perjury had deprived Whiteside of effective assistance of counsel. The court ruled unanimously that Whiteside had not been deprived of his Sixth Amendment rights. The majority opinion, written by Chief Justice Burger, stated that an attorney's duty to his client's cause is "limited to legitimate, lawful conduct compatible with the very nature of a trial as a search for truth"; and that "the right to counsel includes no right to have a lawyer who will cooperate with planned perjury". Attorney must feel like they are not assiting perjury
What are the arguments for and against each approach?
pp. 23-24 in text
2017 clearance figure
shows the percentages of violent and property crimes cleared by arrest or exceptional means in 2017. Among violent crimes, the individual offenses and their respective clearance percentages are murder and nonnegligent manslaughter, 61.6 percent; rape (revised definition), 34.5 percent; robbery, 29.7 percent; and aggravated assault, 53.3 percent. Of property crimes, the individual offenses and their respective clearance percentages are burglary, 13.5 percent; larceny-theft, 19.2 percent; and motor vehicle theft, 13.7 percent. These figures show the impact of discretionary decision making in the investigative process.
Identify the decision points of the CRJ process from the time when a crime is committed until the end.
to report/not to report a crime, ton investigate or not, search/no search, interrogation/no interrogation, to arrest or not, bail/no bail, charge/no charge, what charges are appropriate, indictment/no indictment, counsel/no counsel, discovery/no discovery, to present or not to present evidence, to call or not to call a witness, what questions to ask, plea bargain/ no plea bargain, guilty/not guilty, prison/no prison, minimum security/maximums security, probation/parole and so on.
Has the Supreme Court adopted a unified (single) approach with respect to the Fourteenth Amendment due process clause?
yes, selective incorporation
McClure v. Thompson.
• Where an attorney's or a client's omission to act could result in imminent death or substantial bodily harm constituting a separate and more severe crime from the one already committed, the exception to the duty of confidentiality may be triggered. Model Rules of Prof'l Conduct R. 1.6(b)(1). This exception, however, requires that an attorney reveal confidences only to the extent that he reasonably believes necessary to prevent those criminal acts and imminent harms.
