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November 1, 2012

"The Sixth Amendment Rights to Fairness: The Touchstones of Effectiveness and Pragmatism"

The title of this post is the title of this paper by Robert Mosteller now available via SSRN. Here is the abstract: <
P>The Sixth Amendment is aptly described by Akhil Amar as the “heartland of constitutional criminal procedure.”  It is a major part of the Framers’ designed to ensure a fair trial and provides the opportunity for the accused to challenge the prosecution’s case and to demonstrate innocence.  However, as woeful inadequate funding for indigent defense undercuts the reality of the constitutional right to counsel and as trials become more and more rare, a broader focus is needed.

In a time in which it is painfully obvious that we have limited resources available to meet public needs and a reticence to extend legal doctrines, those interested in progressive reform should look beyond developing new legal doctrine.  The fundamental Sixth Amendment interest in fairness can be furthered by administrative mechanisms and aided by actors in the criminal justice system beyond defense attorneys.  The victories may not be stirring or draw public note, but for the individuals not prosecuted or incarcerated erroneously, they can be extraordinarily significant and fulfill the basic promise of the Sixth Amendment.

November 1, 2012 at 03:28 PM | Permalink


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Because the sole tool of the criminal law is physical punishment, it is inherently dangerous in its ordinary use. Public safety is the justification for allowing the police to detain, the prosecutor to accuse, and the judge to place people in cages. All would be crimes themselves if others did those acts.

The remedy is in torts and ending all lawless self-dealt immunities for the above parties. The lawyer immunity applies only to guilty defendants. In order to avoid the devastating yet deserved consequences of strict liability, a professional standard of due care should apply, allowing for some self-regulation. Nor should the taxpayer be liable, since false prosecutions are not part of the job descriptions. Each party should be made to carry a personal liability policy before the first case to compensate the victims of their carelessness.

This self-evident remedy is beyond the conception of the lawyer. He wants to sue everyone else into bankruptcy, but suggest tort liability apply to his own profession, and one has started to speak an incomprehensible foreign language. "Huh? No speak the English."

Posted by: Supremacy Claus | Nov 1, 2012 6:58:38 PM

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