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May 29, 2019

"Representative Defendants"

The title of this post is the title of this notable new paper authored by Nirej Sekhon now available via SSRN.  Here is its abstract:

Everyone except the defendant in a criminal proceeding somehow represents "the people."  Prosecutors, judges, and juries are all considered public agents.  Defendants in contrast are thought of as parochial, interested in nothing more than saving their own skins.  This broadly shared understanding of criminal court actors was not historically fated nor is it legally accurate today.  The Constitution tasks criminal defendants with significant public responsibility.  They frequently represent the interests of third parties who have no direct stake in defendants' criminal cases.  Defendants vindicate the participatory rights of excluded jurors, they deter unconstitutional searches and seizures that could harm innocent civilians in the future, and they help ensure the transparent and expeditious functioning of the criminal justice system for the public's benefit.

Neither courts nor commentators recognize these representative actions as part of a coherent account of defendants' role in the legal system.  But representative defendants serve some of the same functions that representative plaintiffs do in the civil setting: overcoming information deficits, low-dollar-value harms, and resource scarcity, all of which make it unlikely that individual harm bearers will seek recourse in court.  Courts, commentators, and the public should be clear-eyed about the role defendants play in our legal system. Doing so would help modulate criminal justice policy and enable defense counsel to more effectively challenge the systematic, third-party harms that criminal justice institutions generate.

May 29, 2019 at 03:21 PM | Permalink


Bravo! As a criminal defense attorney, the first time I saw an episode of "Law and Order" I was shocked. At the beginning — when the narrator says "the people are represented by two parties" — I naturally expected him to continue by identifying the two parties as "the prosecution and the defense." When he said instead the people are represented by "the prosecution and the police" I snorted out loud. Without the defense there is no due process for any accused citizen. Without the defense the promise of the presumption of innocence means nothing. Without the defense, the accused — whatever sort of defendant he or she may be — has no champion against the might and majesty of the state. Defense lawyers are also public agents AND officers of the court and the folks we represent span every facet of "the people."

Posted by: Shaun McCrea | May 29, 2019 5:00:01 PM

Our Judicial System has created hysteria and greed. There is no restitution, no justice for either side, just profit and punishment instead of corrections.

Posted by: LC in Texas | May 30, 2019 3:03:38 PM

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