Sara R. Faber


Built into the foundation of the U.S. criminal justice system is the idea that defendants must be able to participate in the trials against them. The right not to stand trial unless competent is premised on the idea that it is fundamentally unfair for defendants to stand trial unless they are able to participate in their trial in at least some capacity. Likewise, the right to counsel is based on a conception of defendants controlling at least some decisions in their case. These rights express an ideal that is foundational to our criminal system: defendant participation must be protected.

Ultimately, though, the criminal system does not do a sufficient job of protecting that ideal throughout the criminal process. Instead, the criminal system is punctuated with procedural rules and constitutional standards that actually erode defendants’ ability to participate in the trials that affect their lives. In accordance with the ideal evident in the competency standard and the right to counsel, we should build a criminal justice system that allows for defendants to participate in meaningful and impactful ways.

This Note first seeks out the doctrines that reveal the underlying ideal of defendant participation, and then examines the procedural rules and constitutional standards that prevent the actualization of that ideal. Ultimately, it concludes that these rules and standards must be changed to preserve the ideal of defendant participation throughout the criminal process.

It has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.

The right to defend is given directly to the accused; for it is he who suffers the consequences if the defense fails. The counsel provision supplements this design. It speaks of the assistance of counsel, and an assistant, however expert, is still an assistant.

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