Saturday, March 4, 2023

The Myth of Fundamental Decisions, 112 Kentucky L.J. __ (forthcoming 2024)

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!

Friday, March 3, 2023

Follow the Science?

In recent years we’ve heard cries of “follow the science” in support of all kinds of agendas and political movements.  But science is a methodology and, in many cases, has exposed those agendas as unsupported by, and sometimes even contradicted by, the science.

Claiming a word as your own and attaching that word to your agenda is a neat trick, if you can pull it off.  (Prosecutors do it all the time with the word truth.)  But despite the recent flurry of creativity surrounding the word science, this tactic is as old as the hills.  A brief look at the history of science-misuse is instructive.

In Mathew Stewart’s book The Management Myth, he explains that various groups have historically used the word science to promote their own agendas, regardless of whether there was any actual science involved: