Friday, April 22, 2016
Daniel J. Capra and Joseph Tartakovsky (Fordham University School of Law and Gibson, Dunn & Crutcher LLP) has posted Why Strickland is the Wrong Test for Violations of the Right to Testify (Washington and Lee Law Review, Vol. 70, No. 95, 2013) on SSRN. Here is the abstract:
A criminal accused has a constitutional right to testify in his own defense. The right has an undisputed place alongside the most important "personal" rights, like the right to remain silent or the right to represent oneself. But in the 1990s, courts began to apply the ineffective-assistance test of Strickland v. Washington to evaluate claims by a defendant that his right to testify was abridged. In practice this nullifies the right. Moreover, the Strickland test is inapposite because it focuses on counsel and not the defendant's right to testify. This Article proposes a new test to better secure and enforce the right, without subjecting courts to burdensome post-trial motions.