Representative Defendants

Abstract

Everyone except the defendant in a criminal proceeding somehow represents "the people." Prosecutors, judges, and juries are all considered public agents. Defendants in contrast are thought of as parochial, interested in nothing more than saving their own skins. This broadly shared understanding of criminal court actors was not historically fated nor is it legally accurate today. The Constitution tasks criminal defendants with significant public responsibility. They frequently represent the interests of third parties who have no direct stake in defendants' criminal cases. Defendants vindicate the participatory rights of excluded jurors, they deter unconstitutional searches and seizures that could harm innocent civilians in the future, and they help ensure the transparent and expeditious functioning of the criminal justice system for the public's benefit. Neither courts nor commentators recognize these representative actions as part of a coherent account of defendants' role in the legal system. But representative defendants serve some of the same functions that representative plaintiffs do in the civil setting: overcoming information deficits, low-dollar-value harms, and resource scarcity, all of which make it unlikely that individual harm bearers will seek recourse in court. Courts, commentators, and the public should be clear-eyed about the role defendants play in our legal system. Doing so would help modulate criminal justice policy and enable defense counsel to more effectively challenge the systematic, third-party harms that criminal justice institutions generate.

Keywords: criminal procedure, defendants, criminal justice, criminal justice system

JEL Classification: K14, K42