Chapter 12

1. Chapter 12 Initiation of the Legal Process, Bail, and the Right to Counsel

2. Prosecutorial Discretion to Charge • responsibility shifts to prosecution after arrest • Justice Jackson: the prosecutor is perhaps the most powerful person in the criminal justice system • Wayte v. United States • prosecutors retain “broad discretion” as to whether to prosecute • “so long as the prosecution has probable cause to believe that the accused has committed an offense defined by statutes, the decision whether or not to prosecute, and what charge . . . generally rests entirely in his discretion” • presumption of regularity

3. Selective Prosecution • Equal Protection Clause of the Fifth and Fourteenth Amendments • Wayte v. United States • required to demonstrate that the prosecutor’s decision had a “discriminatory effect” and that “it was motivated by a discriminatory purpose” • two-prong test • whether individuals are singled out for prosecution who are members of a particular race, gender, or religion or who have engaged in the exercise of a fundamental freedom while other “similarly situated” individuals who do not fall within the group are not prosecuted • whether the prosecutorial policy is based on an intent to discriminate against the members of the group

4. Vindictive Prosecution • a prosecutor retaliates against a defendant who asserts his or her rights by bringing a more serious charge against the defendant • Blackledge v. Perry: an individual convicted of an offense is “entitled to pursue his statutory right to a trial de novo without apprehension that the State will retaliate by substituting a more serous charge from the original one” • United States v. Goodwin: prosecutors have many reasons for changing the charges against an individual and as such cannot automatically be assumed to be vindictive

5. Probable Cause to Detain • Gerstein v. Pugh • probable cause hearing • nonadversarial • must be held promptly following an arrest

6. First Appearance • a.k.a. initial appearance • triggered by the filing of a complaint • to be conducted “without unnecessary delay” • four primary purposes • informing the defendant of the criminal charges • informing the defendant of the right to counsel and other rights • setting of bail • assigning counsel for indigent defendants

7. Pretrial Release • bail • Eighth Amendment • Schlib v. Kuebel • Stack v. Boyle: the primary purpose of bail is to ensure that the defendant appears for trial • Bail Clause • denial of bail in capital cases • reasons bail is important • limited pretrial detention • limited personal hardship • better preparation for trial

8. Types of Bail • money bail • surety bond • release on recognizance

9. Pretrial Detention • detained in a short-term correctional facility • Bell v. Wolfish • while these detainees retain their constitutional rights, they are subject to reasonable regulations intended to ensure order and security in the institution • these detainees have not been convicted of a crime and may not be subjected to “arbitrary or purposeless” conditions that constitute punishment

10. Indigency and the Right to Counsel • Sixth Amendment • English common law • Powell v. Alabama • Gideon v. Wainright

11. Critical Stages • right to counsel not limited to the trial only • two-part test to determine when the Sixth Amendment right to counsel attaches • Kirby v. Illinois • critical stages of the prosecution: any phase of the prosecution that may negatively impact the defendant’s ability to present a defense at trial and at which the presence of an attorney would safeguard the defendant

12. “All Criminal Prosecutions” • Argersinger v. Hamlin • “absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel” • a trial for an offense punishable by even the smallest amount of incarceration is likely to be as complex as a case involving a crime punishable by one year or more in prison • Scott v. Illinois • “no indigent criminal defendant [is to] be sentenced to a term of imprisonment unless the State has afforded him the right to assistance of appointed counsel in his defense” • unless a defendant is provided with a lawyer, a judge may not sentence a defendant to imprisonment • Alabama v. Shelton

13. Determining Indigency • determination varies by state • individuals who do not meet the standard in a state may apply to the court to be recognized as an indigent on the grounds that they have significant health costs, child support, or other extraordinary financial circumstances

14. Right to Select a Counselor • a defendant has no right to be represented by a specific appointed counsel • Morris v. Slappy • a nonindigent defendant possesses the Sixth Amendment right to be represented by the lawyer of his or her choice • a defendant does not have the right to be represented by an individual who is not a member of the bar, by a lawyer who has a conflict of interest, or by a lawyer whom he/she cannot afford to hire

15. Right to EffectiveLegal Representation • Strickland v. Washington: a defense attorney possesses the “overarching duty to advocate the defendant’s cause” and to “bring to bear such skill and knowledge as will render the trial a reliable adversarial testing process” • two pronged test for ineffective assistance of counsel • deficient performance • prejudice • ignorance of the law • failure to investigate capital offenses • attorney not required to help his/her client break the law • closing arguments can be considered • conflicts of interest

16. Right to Self-Representation • prose • Faretta v. California • considerations • personal choice • consequences • respect for the law • strategy

17. Limitations on Self-Representation • notice • competence • disruptiveness • McKaskle v. Wiggins: standby counsel