Law Commons^™

Shrinking Gideon And Expanding Alternatives To Lawyers, Stephanos Bibas

All Faculty Scholarship

This essay, written as part of a symposium at Washington and Lee Law School entitled Gideon at 50: Reassessing the Right to Counsel, argues that the standard academic dream of expanding the right to counsel to all criminal and major civil cases has proven to be an unattainable mirage. We have been spreading resources too thin, in the process slighting the core cases such as capital and other serious felonies that are the most complex and need the most time and money. Moreover, our legal system is overengineered, making the law too complex and legal services too expensive for …

Beyond “Life And Liberty”: The Evolving Right To Counsel, John D. King

Scholarly Articles

The majority of Americans, if they have contact with the criminal justice system at all, will experience it through misdemeanor courtrooms. More than ever before, the criminal justice system is used to sort, justify, and reify a separate underclass. And as the system of misdemeanor adjudication continues to be flooded with new cases, the value that is exalted over all others is efficiency. The result is a system that can make it virtually painless to plead guilty (which has always been true for low-level offenses), but that is now overlaid with a new system of increasingly harsh collateral consequences. The …

Sections 9, 10 And 11 Of The Canadian Charter, Steve Coughlan, Robert Currie

Articles, Book Chapters, & Popular Press

Section 9 of the Charter guarantees freedom from arbitrary detention, section 10 provides certain rights on arrest, and section 11 guarantees various rights to those charged with an offence. In this chapter the authors consider the aspects of these rights which have been authoritatively determined, as well as pointing to the areas which remain unsettled and discussing the areas of lingering controversy.

Effective Remedies For Ineffective Assistance, Jenia I. Turner

Faculty Journal Articles and Book Chapters

In two recent cases, Missouri v. Frye and Lafler v. Cooper, the Supreme Court affirmed that criminal defendants have a right to competent counsel during plea bargaining. The Court also established that the injury caused by ineffective assistance is not mooted by the subsequent conviction of the defendant at trial. The cases were broadly celebrated for clarifying that the Sixth Amendment applies fully to plea bargaining — the standard process by which our justice system resolves criminal cases today.

The most significant and surprising part of Lafler, however, was the Court’s holding concerning remedies. The Court held that trial courts …

Justice Kennedy's Sixth Amendment Pragmatism, Stephanos Bibas

All Faculty Scholarship

This essay, written as part of a symposium on the evolution of Justice Kennedy’s jurisprudence, surveys three areas of criminal procedure under the Sixth Amendment: sentence enhancements, the admissibility of hearsay, and the regulation of defense counsel’s responsibilities. In each area, Justice Kennedy has been a notable voice of pragmatism, focusing not on bygone analogies to the eighteenth century but on a hard-headed appreciation of the twenty-first. He has shown sensitivity to modern criminal practice, prevailing professional norms, and practical constraints, as befits a Justice who came to the bench with many years of private-practice experience. His touchstone is not …

A Rejoinder To Professor Schauer's Commentary, Yale Kamisar

Articles

It is quite a treat to have Professor Frederick Schauer comment on my Miranda article.1 Professor Schauer is a renowned authority on freedom of speech and the author of many thoughtful, probing articles in other areas as well, especially jurisprudence. I am pleased that in large measure, Schauer, too, laments the erosion of Miranda in the last four-and-a-half decades2 and that he, too, was unhappy with the pre-Miranda due process/“totality of circumstances”/“voluntariness” test.3 I also like what Schauer had to say about “prophylactic rules,” a term that has sometimes been used to disparage the Miranda rules.4 As Schauer observes, the …