WEEK 4 - UNIT 4 Criminal Procedure Professor Ann Marie Lampariello-Perez

Wrap Up - Unit 3/Week 3 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: Examine the three amendments to the US Constitution that specifically deal with a defendant’s rights: –4th amendment –5th amendment –6th amendment 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)… The text doesn’t really cover the right to remain silent provision of the 5 th 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 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. (5 th ). 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, t he 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>> Why is it harder for the defense to claim that a confession wasn’t voluntary if Miranda was given before the confession was made? 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 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.) 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). What does speedy mean? (Delay alone doesn’t justify dismissal) 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) 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 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 The next right is to an impartial jury. What does impartial mean? --- 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) From Glasser v. United States : Jury must be drawn from a fair cross section of the community 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) 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… 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? 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… 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)… 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???? Does anyone have any questions? Feel free to me at: Thanks for a great class! Good night and good learning this week. Professor Ann Marie Perez