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Cardozo Journal of Conflict Resolution





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The Sixth Amendment guarantees "[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense." In 1984, the Supreme Court in Strickland v. Washington established the standard for ineffective assistance of counsel that is a violation of this right. In a pair of decisions handed down in 2012, Lafler v. Cooper and Missouri v. Frye the Supreme Court extended the holding in Strickland to cover ineffective assistance by defense counsel in the plea-bargaining phase. Recognizing that pleas account for ninety-five percent of all criminal convictions, the court stated that "the negotiation of a plea bargain . . . is almost always the critical point for a defendant" and "defense counsel have responsibilities in the plea bargain process, responsibilities that must be met to render the adequate assistance of counsel that the Sixth Amendment requires."

What might these responsibilities be, and how might we determine them? This paper argues that by holding that there is a constitutional minimum standard for counsel in the plea-bargaining context, the court has effectively created a negotiation competency bar for criminal defense attorneys. This paper will look to existing and potential sources of standards for negotiation competency in plea-bargaining to determine how lower courts can and should shape the scope of this right in the future.

Part II of the paper examines the Frye and Lafler decisions in light of the Supreme Court's previous rulings on ineffective assistance of counsel claims and in particular the assistance of counsel during the plea-bargaining stage. It shows that the Court went further than just considering the individual errors by defense counsel in each case to make a broader ruling that extends ineffective assistance jurisprudence to the larger negotiation context of plea bargains.

It asserts that while the Court has been reluctant to establish exact standards for defense counsel's role in the plea-bargaining process,' establishing these standards will be critical for lower state and federal courts to define the scope of the right and address the multiple ills of plea-bargaining caused by counsel's bad incentives.

As previous cases state that the “proper standard for [measuring] attorney performance is that of reasonably effective assistance,” as guided by 'prevailing professional norms' and consideration of 'all the circumstances' relevant to counsel's performance" this paper then explores what sort of prevailing professional norms and circumstances can provide guidance in this area. Part III looks to existing standards of professional practice, such as the ABA's Model Rules of Professional Conduct, as a first source of guidance for plea negotiators. This part also looks to other ABA Standards such as the ABA Standards for Criminal Justice, as courts have adopted these standards in defining ineffective assistance in other areas, and concludes that these provide guidance for plea bargain negotiations as well. It also looks at other types of behavior that have been determined to be ineffective assistance of counsel in the trial context and draws analogies to behavior in the negotiation context. Just as counsel at trial need to prepare to a reasonable standard, we can analogize to the amount of preparation required in the context of a negotiation of a plea bargain. Part III concludes with a brief overview of popular and scholarly literature on negotiation theory, and pulls common threads, such as the need to for legitimate standards and knowledge of alternatives that may be helpful in the plea context.

Recommended Citation

Rishi Batra, Lafler and Frye: A New Constitutional Standard for Negotiation, 14 Cardozo J. Conflict Resol. 309 (2013).



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