Criminal Procedure - Outline Part 28

8. Police Lineups & Eyewitness Identification

1. Four Types:
   1. In-Court ID during Trial
   2. Show-Up ID
   3. Lineup
   4. Photo Array
2. Legal Rules RE: Eyewitness Identifications
   1. Due Process
   2. 6A Right to Counsel

9. Due Process and Eyewitness Identifications

1. Violates Due Process If:
   1. Procedure was unnecessarily suggestive, AND
   2. Unreliable
      1. FACTORS:
         1. Opportunity to view suspect at time of crime
         2. Degree of attention
         3. Accuracy of prior description
         4. Level of certainty
         5. Time gap
2. Show-Ups: Unnecessarily suggestive → Only admissible if exigent circumstances (about to die)
   1. Police still frequently do these, but just NOT allowed to use at Trial

10. 6A Right to Counsel with Identifications

1. Post-Indictment Lineup: Considered to be a “critical stage” in the adversarial process, so if lineup, 6A attaches
   1. Rule: A witness identification of a criminal suspect conducted in the absence of legal representation violates the Sixth Amendment right to the assistance of counsel.
2. IN-Court ID: If prosecution can prove by clear and convincing evidence that the in-court ID was not the product of the police lineup, might not be excluded
   1. FACTORS:
      1. Prior opportunity to observe alleged criminal act
      2. Existence of any discrepancy between any pre-lineup description and the D’s actual description
      3. Any ID prior to lineup of another person
      4. ID by picture of the D prior to lineup
      5. Failure to ID the D on a prior occasion
      6. Lapse of time between alleged act and the lineup ID
      7. Those facts which, despite the absence of counsel, are disclosed concerning the conduct of the lineup
3. Photo Array: There is NO 6A right to counsel at a photo lineup, even if such a procedure occurs after formal criminal proceedings have commenced (D is not present)
4. Only time 6A Violation: Post-6A Attachment / In-Person Lineup

11. Right to Appointed Counsel

1. RULE: States are required to appoint a government-funded attorney for indigent criminal D’s for all felony criminal cases (Gideon)
2. Three Main Systems (State):
   1. Public Defenders
   2. Contract Lawyers
   3. Appointed Lawyers
3. Felony vs. Misdemeanor
   1. Felony: ALWAYS appointed counsel
   2. Misdemeanor: If convicted of a misdemeanor and the D’s request for appointed counsel is denied, the judge may NOT sentence D to any jail time
      1. An ACTUAL sentence of imprisonment is required for appointed counsel in misdemeanor cases
4. Which 6A right is more fundamental?
   1. Jury Trial Right: Offenses punishable by 6 MONTHS OR MORE → Right to jury trial
      1. Authorized → D can have this right and NO right to appointed counsel (Actual)
5. First Appeal: D has a right to counsel on FIRST appeal
   1. Not right given in Constitution, but every state by statute has provided right to an appeal

12. Pro Se D’s (Right to Decide Whether to Have Counsel)

1. RULE: D’s have a Constitutional right to represent themselves in court OR to waive assistance of counsel (same result) → Technical knowledge of law does not matter
   1. WAIVER:
      1. Knowing
      2. Intelligent
      3. Voluntary
      4. Advised of Dangers → Judge must advise D of dangers of representing himself and to make certain that this is his final decision, because once it’s done, it’s done
   2. History: Originally, D’s were required to represent themselves
   3. Implied Within 6A Text: “Right” implies the option to have assistance of counsel (Attorney is assistant, NOT master)
2. Standby Counsel: Counsel appointed to sit in court with D and answer any Q’s he has
   1. Technical Advisor → Not actually representing the D
   2. D may reject standby counsel, but the judge may force it

13. Ineffective Assistance of Counsel

1. Two-Part Test: Strickland
   1. Deficient performance AND
      1. Objective Standard of Reasonableness: Whether counsel’s representation fell below the objective standard of reasonableness → D must identify with precision the acts or omissions that he claims were constitutionally unreasonable
      2. Court: Evaluates from lawyer perspective at time of act or omission → Highly deferential to counsel
      3. Presumption: Effective representation (rebuttable)
   2. Prejudice as a result of deficient performance
      1. Standard: “But for” the lawyer’s deficient performance, the outcome would have been different (reasonable probability)
2. Strategy Decision: If strategy decision, virtually unchallengeable by D
3. Challengeable Deficient Conduct:
   1. Legally mistaken understanding of law of certain area of law
   2. Failing to prepare for trial
   3. Failure to uncover extensive evidence
   4. Failure to submit timely motions → TIMELINESS in general
   5. Being completely unaware of relevant law
   6. Drinking and Sleeping → Can still be hard to prove; Must be able to show that the reason for missing a particular important piece of info was the direct result of the drinking or sleeping
4. Factually Guilty D Test: In a situation where D plead guilty, but later discovered particularly important info that could have led lawyer to not advise D to plead guilty, D must satisfy BOTH
   1. That he would NOT have plead guilty, AND
   2. There was a reasonable probability of acquittal at trial
5. Order of Prongs: May address prejudice question first if doing so would make disposition of the case easier (if D cannot prove prejudice, then proving deficiency doesn’t matter)

4^th 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.

5^th 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 (Self Incrimination), 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.

6^th 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 defense. (Right to Counsel)