Criminal Trials, Negotiated Pleas, and the Effective Assistance of Counsel: Notes about and Toward a Theory of the Attorney’s Role in Case Resolution


In his essay “Effective Assistance on the Assembly Line,” Professor Stephen Schulhofer of the University of Pennsylvania Law School advances two themes. According to Schulhofer, these themes are inextricably entwined, but for my purposes here I will address them separately. The first theme concerns the duties that formal doctrine imposes or should impose on attorneys with respect to the representation of their clients. The second reveals Schulhofer’s admiration for adversary proceedings, and results in his advocacy of a “new model”-criminal trials-as the procedure for attorneys to follow in order to effectively represent their clients’ interests. In this world, according to Schulhofer, justice flourishes only in adversary contests, and is, in fact, flourishing in only one place in this country-in his own backyard, Philadelphia. A bleak picture of doctrinal requirements as contrasted to the effective representation that he believes defendants receive from adversary proceedings inPhiladelphia links his two themes.

In the sections that follow, I will neither attempt an exhaustive review of Schulhofer’s arguments nor undertake a systematic examination of the many and varied issues implicated by his two themes. I will not, for example, explore in detail the range of obligations attorneys assume in criminal defense work, nor attempt to contrast these in any step-by-step way for pleas and trials. Instead I will try to clarify some of the details of the arguments he advances and raise some general questions about his themes, particularly his second. In so doing, I hope to flesh out the theory that lurks not so far be-neath the surface of his essay, and suggest competing theoretical propositions that are in need of the proverbial “further study.”

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