There are a range of opinions about the potential impact of the Supreme Court's latest opinions. My view of the potential of these cases to create some meaningful limit on the presently unregulated world of plea bargaining is probably the most optimistic, or radical, of anyone who participated in this conference. Missouri v. Frye and Lafler v. Cooper, in my view, hold the potential to improve the quality of representation defendants receive in the negotiation process and may lead judges to create a set of advisory guidelines for the exercise of prosecutorial discretion. The direct impact of these opinions is not, however, likely to be dramatic. It is improbable that any large number of convictions will be overturned as a result of these decisions, just as few convictions are reversed for ineffective assistance of counsel at trial or on appeal. The indirect effects of these opinions could, however, fundamentally change plea bargaining. Defense lawyers may come to value their skills as negotiators just as they currently evaluate themselves on the basis of their trial and appellate abilities. And in crafting remedies for violations of ineffective assistance of counsel during the plea bargaining phase, judges will have an opportunity to explain the appropriate exercise of prosecutorial discretion. The impact of these decisions could therefore be enormous.
Wesley M. Oliver,
The Indirect Potential of Lafler and Frye,
Duq. L. Rev.
Available at: https://dsc.duq.edu/dlr/vol51/iss3/8