Embracing a New Era of Ineffective Assistance of Counsel

Abstract:     
The recent decisions in Missouri v. Frye and Lafler v. Cooper represent a seismic shift in the Court’s right to counsel jurisprudence. No longer is the right to counsel limited to protecting the
fairness and adequacy of the trial. Although these two cases arose in the plea bargaining context, the doctrinal shift may have its greatest impact in cases where plea bargaining is not at issue.

This Article identifies the salient features of this new — non-trial oriented — conception of the right to counsel and explains its far-reaching impacts on the day-to-day practice of criminal law.

Specifically, this Article explains the import of the newly minted right to effective assistance as it relates to a variety of procedural constitutional rights, including speedy trial, pretrial detention, double jeopardy, and jury selection rights. The explicit recognition that the right to counsel is not only, or even primarily a trial or truth protecting right promises to be a staggeringly important constitutional event.

Number of Pages in PDF File: 59

working papers series