Remedying Pretrial Ineffective Assistance

Abstract

This Article explores a particular example of the right-remedy gap identified by leading federal courts scholars, the problem of remedying pretrial ineffective assistance of counsel. Specifically, the question is what form of federal constitutional remediation is available (and ought to be available) when defense counsel provides incompetent representation resulting in the discovery of inculpatory evidence against the defendant. Although instances of pretrial errors of counsel resulting in the discovery of materially incriminating evidence are numerically rare in the published case law, when they arise defense lawyers and judges are without any guidance for how to proceed. In addition, these cases provide a useful lens for understanding, more generally, the scope and nature of Sixth Amendment remedies in federal court.