Monday, November 5, 2012
Robert P. Mosteller (University of North Carolina (UNC) at Chapel Hill - School of Law) has posted The Sixth Amendment Rights to Fairness: The Touchstones of Effectiveness and Pragmatism (45 Texas Tech Law Review, Volume 1, 2012) on SSRN. Here is the abstract:
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.