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!

Abstract

Criminal defendants have numerous fundamental rights, some of which are so important or personal that only the defendant, not defense counsel, may make decisions regarding those rights. These so-called “fundamental decisions” include whether to: (1) accept a plea bargain and plead guilty; (2) waive the jury in favor of a bench trial; and (3) testify at trial instead of remaining silent.

While the law jealously guards a defendant’s fundamental decisions against intrusion by his or her own defense lawyer, it surprisingly offers no protection against intrusion by government agents. Specifically: (1) prosecutors may use illusory promises to induce defendants to plead guilty, thus rendering the decision to do so involuntary; (2) prosecutors may block defendants’ attempted jury waivers without any reason or justification; and (3) while judges and prosecutors cannot literally stop defendants from testifying, they often instruct the jury, or argue to the jury, that it should disregard the defendant’s testimony because he or she has an interest in the outcome of the case and, therefore, a motive to lie.

All three of the above tactics undermine the defendant’s fundamental decisions. Because it is absurd to protect the defendant’s decision-making from intrusion by his or her own lawyer while offering no protection from government agents, this Article advocates for simple legal reform. In addition, because reform proposals are rarely implemented, this Article makes a far more valuable contribution: it provides strategies for the defense lawyer to use now, within the current system, to protect the defendant’s fundamental decisions against interference by judges and prosecutors.