Au Revoir, Voir Dire
looking towards a major increase in the use of court-appointed expertwitnesses.
There’s another old saying: “If you can’t do the time, don’t do thecrime.” I would like to coin another version that reads, “If you didn’t dothe crime, don’t do the time.” It is axiomatic that every virtue suffers fromthe defects of its vices. In the case of plea-bargaining, there are few virtues but many vices.
Gideon v. Wainwright
decision requiring adequate legalassistance in all criminal proceedings was justifiably applauded.
It should be recalled that
was a reconsideration and reversal of the 1942 caseof
Betts v. Brady
Court cited extensive precedent from whichthe
was an extraordinary step in thecriminal judicial process and some of the Court’s dicta is worth repeatinghere, insofar as it speaks to the themes of this article:
[I]n our adversary system of criminal justice, any person haledinto court, who is too poor to hire a lawyer, cannot be assured afair trial unless counsel is provided for him. . . . From the very beginning, our state and national constitutions and laws havelaid great emphasis on procedural and substantive safeguardsdesigned to assure fair trials before impartial tribunals in whichevery defendant stands equal before the law. This noble idealcannot be realized if the poor man charged with crime has to facehis accusers without a lawyer to assist him.
Court did not foresee the aftermath. We know, of course,that one problem lies in the ambiguity of the phrase “right to counsel” andthat all too often defendants do not receive defense attorneys of the highestcaliber, leading to dire consequences for indigent defendants.
The history of plea-bargaining, believe it or not, is an interesting one. It all began inMassachusetts. For a very thorough history of plea-bargaining, see George Fisher,
, 109 Y
L.J. 857, 859-61 (2000).
372 U.S. 335 (1963).
, Ellen S. Podgor, Gideon
at 40: Facing the Crisis, Fulfilling the Promise
, 41 A
. 131, 133 (2004).
316 U.S. 455, 473 (1942),
overruled by Gideon
, 372 U.S. at 339.
, 372 U.S. at 342-44.
at 344. The
decision criticized the
holding that the Sixth Amendment wasnot fundamental to a fair trial; therefore, the Fourteenth Amendment would not impose thefederal requirement for counsel onto the state courts.
State Bar-Association Panel Urges Public-Defense Reforms
(May 11, 2004),