'Waiving' Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation

25 Pages Posted: 20 Apr 2011 Last revised: 27 Apr 2012

Jane Campbell Moriarty

Duquesne University - School of Law

Marisa E Main

affiliation not provided to SSRN

Date Written: April 19, 2011

Abstract

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.

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, K40

Suggested Citation

Moriarty, Jane Campbell and Main, Marisa E, 'Waiving' Goodbye to Rights: Plea Bargaining and the Defense Dilemma of Competent Representation (April 19, 2011). Hastings Constitutional Law Quarterly, Vol. 38, No. 4, 2011; Duquesne University School of Law Research Paper No. 2012-23. Available at SSRN: https://ssrn.com/abstract=1815385

Jane C. Moriarty (Contact Author)

Duquesne University - School of Law ( email )

600 Forbes Avenue
Pittsburgh, PA 15282
United States

Marisa E Main

affiliation not provided to SSRN

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