Strengthening the Criminal Defendant’s Right to Counsel
The final version of this article is to be published in 28 Cardozo L. Rev. (forthcoming 2007).
Abstract
This article argues that the courts should recognize that defense counsel’s role is pivotal in criminal cases and take specific steps to strengthen the defendant’s right to counsel. The article first examines the courts’ view of the criminal defendant’s role in four situations: when addressing questions of competency to stand trial, when addressing the propriety of excluding the defendant from various proceedings, when considering the allocation of decision-making authority between the defendant and counsel, and when discussing the responsibility of the pro se defendant. In each of these contexts, the courts generally ascribe a limited role to the represented defendant, relying on counsel to protect and enforce the defendant’s rights.
The article then argues that the courts should take four steps to strengthen the defendant’s right to counsel. First, the courts should recognize a constitutionally protected interest in continuity of representation. Second, the courts should be more receptive to motions for substitute counsel. Third, courts should assure that the defendant is present at all discussions related to whether counsel will continue in the case. Finally, the courts should recognize the unusual responsibility assumed by a pro se defendant and enforce rules disfavoring the decision to proceed pro se. These procedural changes would enhance the fairness of the criminal process by strengthening the defendant’s right to counsel.