Why the Supreme Court Will Not Take Pretrial Right to Counsel Seriously

Date

2012

Authors

Loewy, Arnold H.

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Volume Title

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Abstract

The author begins with the premise that the Supreme Court does not treat the pretrial right to counsel with any weight and then walks through an analysis of the history and jurisprudence surrounding the Fifth and Sixth Amendments to deduce why. Based on recent decisions, the Court currently believes, though has not always done so, that “as a matter of policy, ‘voluntary’ confessions are an unmitigated good,” whether or not adversary proceedings have begun, and that “counsel can do no more good for an indicted defendant than a mere arrestee.” The author discusses these recent decisions, comparing them to conflicting earlier decisions, and states his opinion that these recent decisions are normatively wrong.

Description

Keywords

Supreme Court, Constitutional law, Fifth Amendment, Sixth Amendment, Criminal law, Right to counsel

Citation

45 Tex. Tech L. Rev. 267