'Waiving' Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation
Jane Campbell Moriarty
Duquesne University - School of Law
Marisa E Main
affiliation not provided to SSRN
April 19, 2011
Hastings Constitutional Law Quarterly, Vol. 38, No. 4, 2011
Duquesne University School of Law Research Paper No. 2012-23
The proposed amendments to the ABA Criminal Justice Standards for Prosecutors and Defense Lawyers ("Proposed Standards") address a number of problematic issues related to the roles of both prosecutors and defense attorneys. This Symposium Article considers waiver of rights in the context of the Standards, focusing on guilty pleas and the so-called "preconditions" that prosecutors generally require before even entertaining the defendant’s proffer, colloquially termed "Queen for a Day" agreements It reviews the development in the law since 1993, the changes in the practice since that time, and the proposed changes to the Standards. The article focuses on the complex obligations of criminal defense attorneys to investigate their cases and give competent advice to their clients in the shadow of proffers and pleas. It concludes that attorneys in this role face an almost insoluble dilemma and hopes that the Proposed Standards provide an important first step to resolving it.
Number of Pages in PDF File: 25
Keywords: ABA Criminal Justice Standards for Prosecutors and Defense Lawyers, Queen for a day agreements, waiver of rights, presumption of waivability
JEL Classification: K10, K14, K40Accepted Paper Series
Date posted: April 20, 2011 ; Last revised: April 27, 2012
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