Criminal Procedure- Heiny 2006

Criminal Procedure- Heiny 2006 - CRIM PRO OUTLINE 3...

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CRIM PRO OUTLINE 3 Questions that must be used to analysis each proposition 1. What does the Constitution say a. And has the right been incorporated to the states through the 14 th DP clause (piecemeal incorporation) i. The court has incorporated the bill of rights “jot for jot” thus the baggage of the federal protection is also applied to the states 1. this ensures uniformity but stifles experimentation a. if the right is incorporated against the state they grant more expansive protections but not less i. however the SCt has dropped dicta that if the states give more expansive protections must have an independent and adequate state grounds – Michigan v Long 2. What does the case law say 3. is there a rule 1
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RIGHT TO COUNSEL BASIC RULE: all Ds facing possible jail time have the right to counsel; Gideon; Hamlin; Scott (you don’t have a right to counsel if you don’t go to jail); in the real world a D is appointed counsel if there is any possibility of jail the 6 th right to counsel attaches at the initiation of formal proceedings— Christian Burial Speech WHAT DOES THE C SAY? the 6 th guarantees in all criminal prosecutions the right to counsel WHAT DOES THE CASE LAW SAY? it is a denial of DP to try a capitol defendant (state or feds) without counsel— Powell v Ala. o the right to counsel for all indigent Ds in federal court was 1 st established in Johnson v. Zerbst initially SCt required special circumstances to appoint counsel to indigent Ds Betts v Brady o literacy o ignorance o age o mental illness o complexity of the case o prosecutorial conduct o the 6 th right to counsel was incorporated against the states in Gideon v Wainwright; this overruled Betts v Brady you cannot be jailed for an offense unless you were represented by counsel – Scott; Hamlin however there is no right to counsel if the statute doesn’t provide for, or the prosecutor states on the record he is not seeking jail – Scott o The SCt never articulated a C standard on how counsel should be provided (could be public defender office, appointed counsel, K etc…) IS THERE A RULE A D has the right to counsel from the 1 st appearance through appeal unless the D waives this right –R. 44 RIGHT TO PROCEED PRO SE BASIC RULE: a criminal D has the right to proceed pro se –Faretta WHAT DOES THE C SAY there is nothing in the C which guarantees the right to proceed pro se Faretta WHAT DOES THE CASE LAW SAY there is a basic right rooted in the history of Anglo-American justice to refuse a court appointed lawyer and proceed pro se – Faretta o however this must be after the right to counsel was waived a valid waiver of the right to counsel must be knowing and intelligent -- Faretta o in determining if waiver of right to counsel look to age education 2
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language (ESL?) advise that courtroom procedures must be adhered to by pro se D understand the charges and possible penalties warnings o evidentiary access might be reduced
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This note was uploaded on 02/12/2008 for the course LAW 7045 taught by Professor Dutton during the Fall '06 term at Colorado.

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Criminal Procedure- Heiny 2006 - CRIM PRO OUTLINE 3...

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