Certain decisions during the course of a criminal case are so important, so personal, that only the defendant is allowed to make them. Not even defense counsel may tread on this hallowed ground. These decisions include whether to waive the jury in favor of a bench trial, whether to testify or remain silent, and whether to plead guilty and accept a plea deal.
But while the law jealously guards the defendant's decision-making authority against intrusion by his or her own lawyer -- the trained professional who is advocating for the defendant -- the law allows government agents, i.e., prosecutors and judges, to run roughshod over those decisions. Sometimes the governmental intrusion is blatant and obvious, as in the case of trumping the defendant's attempted jury waiver, other times the prosecutors and judges have to be really sneaky -- for example, when silencing the defendant "by instruction."
Read all about it in my newest law review article, scheduled for publication next year in the 112th volume our nation's tenth oldest, continuously-published law review, the Kentucky Law Journal. You can find a pre-publication draft of the article here, or read the abstract after the jump. (You can find all of my law review articles, organized by topic, here, and you can find my books here.) Enjoy!