by Rona Li1

Cap­i­tal cas­es present a unique set of con­sid­er­a­tions for defense attor­neys. In cer­tain sit­u­a­tions in which the prosecution’s evi­dence is over­whelm­ing, the defen­dant may choose to admit his guilt to the jury in the hopes of main­tain­ing cred­i­bil­i­ty and con­vinc­ing the jury to for­go a death sen­tence at the sen­tenc­ing phase. The Supreme Court has ruled that it is per­mis­si­ble for coun­sel to pur­sue such a con­ces­sion strat­e­gy with­out his client’s express con­sent when doing so may be the best chance of avoid­ing a death sen­tence.2 How­ev­er, the Court has not ruled on whether coun­sel can con­cede his client’s guilt against his client’s express objec­tion.3

This Con­tri­bu­tion will argue that when a defense attor­ney admits his client’s guilt to the jury over his client’s unequiv­o­cal objec­tion, he vio­lates the defendant’s Sixth Amend­ment right to con­duct his own defense and to make fun­da­men­tal deci­sions about his case. Fur­ther, such con­duct by an attor­ney con­sti­tutes inef­fec­tive assis­tance of coun­sel under the test out­lined in Unit­ed States v. Cron­ic.4

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The Sixth Amend­ment of the Unit­ed States Con­sti­tu­tion guar­an­tees to a defen­dant the right to con­duct his own defense.5 The Supreme Court has explained that this right is based on “the fun­da­men­tal legal prin­ci­ple that a defen­dant must be allowed to make his own choic­es about the prop­er way to pro­tect his own lib­er­ty.”6 A defendant’s right to direct his own defense is so robust that he has the pow­er “to super­sede his lawyers” entire­ly and “con­duct the tri­al him­self.”7

The Sixth Amend­ment also guar­an­tees the accused in a crim­i­nal pro­ceed­ing the right to assis­tance of coun­sel.8 A defendant’s right to assis­tance of coun­sel in no way dimin­ish­es his right to con­duct his own defense; rather, the right to assis­tance of coun­sel “was intend­ed to sup­ple­ment the oth­er rights of the defen­dant, and not to impair the absolute and pri­ma­ry right to con­duct one’s own defense.”9 Indeed, a defen­dant can­not be required to relin­quish one con­sti­tu­tion­al right for anoth­er.10 The lan­guage of the Sixth Amend­ment makes clear that coun­sel should play an ancil­lary role and respect defendant’s ulti­mate author­i­ty to con­trol his own defense: “an assis­tant, how­ev­er expert, is still an assis­tant.”11 A defendant’s right to con­duct his own defense and his right to assis­tance of coun­sel are not, and can­not be, mutu­al­ly exclu­sive. Rather, they oper­ate in uni­son to afford a defen­dant his full pro­tec­tions under the Sixth Amendment.

An attor­ney can make cer­tain strate­gic deci­sions with­out his client’s express con­sent, but the defen­dant alone has the author­i­ty to make fun­da­men­tal deci­sions about his case.12 Attor­neys are per­mit­ted to make strate­gic choic­es of how to con­duct the tri­al, “includ­ing the objec­tions to make, the wit­ness­es to call, and the argu­ments to advance.”13 Such mat­ters “can be dif­fi­cult to explain to a layper­son,” and draw upon an attorney’s exper­tise and expe­ri­ence.14 In oth­er words, coun­sel is grant­ed the lat­i­tude to man­age tri­al strat­e­gy because “in most instances the attor­ney will have a bet­ter under­stand­ing of the pro­ce­dur­al choic­es than the client.”15 Indeed, requir­ing a client’s con­sent for each of the many strate­gic and pro­ce­dur­al choic­es coun­sel is required to make would be imprac­ti­cal.16

The Supreme Court has set forth two tests to assess claims of inef­fec­tive assis­tance of coun­sel. Typ­i­cal­ly, such claims are assessed under the test out­lined in Strick­land v. Wash­ing­ton, which asks whether counsel’s per­for­mance was defi­cient, and if so, whether that defi­cient per­for­mance was unfair­ly prej­u­di­cial to the defen­dant.17 Cron­ic carves out an excep­tion to the Strick­land test for three sce­nar­ios in which prej­u­dice is pre­sumed.18 One of those sce­nar­ios is where coun­sel fails to sub­ject the prosecution’s case to mean­ing­ful adver­sar­i­al test­ing.19 The Court explained in Cron­ic that mean­ing­ful adver­sar­i­al test­ing requires that defense coun­sel acts as his client’s advo­cate.20

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An attorney’s admis­sion of his client’s guilt to the jury over his client’s express objec­tion should be deemed uncon­sti­tu­tion­al. When a defen­dant decides to main­tain his inno­cence and gives his attor­ney clear direc­tions to not admit his guilt to the jury, his choice must be respect­ed under his Sixth Amend­ment right to con­duct his own defense. Tak­ing advan­tage of assis­tance of coun­sel does not dimin­ish this right. The Supreme Court has held that coun­sel “shall be an aid to a will­ing defendant—not an organ of the State inter­posed between an unwill­ing defen­dant and his right to defend him­self per­son­al­ly.”21 More­over, lawyers are often accu­rate­ly char­ac­ter­ized as agents who have a duty to serve their client as prin­ci­ple.22 When an attor­ney admits his client’s guilt over his client’s express objec­tion, he fails to act as his client’s agent. Thus, when an attor­ney pro­ceeds with a con­ces­sion strat­e­gy against the defendant’s artic­u­lat­ed wish­es, he trans­gress­es his author­i­ty under the coun­sel clause rather than pro­vid­ing defen­dant “with assis­tance at what, after all, is his, not counsel’s tri­al.”23

Fur­ther, admit­ting guilt in a mur­der tri­al is not one of the strate­gic deci­sions that an attor­ney can uni­lat­er­al­ly make. Admit­ting guilt is hard­ly an eso­teric pro­ce­dur­al choice that the defen­dant is inca­pable of under­stand­ing. Unlike mat­ters that depend on the rules of evi­dence and pro­ce­dure and thus “reflect[] con­sid­er­a­tions more sig­nif­i­cant to the realm of the attor­ney than to the accused,”24 the deci­sion to admit guilt to the jury and its cor­re­spond­ing impli­ca­tions are eas­i­ly com­pre­hen­si­ble to a layper­son. Nor would pro­hibit­ing coun­sel from uni­lat­er­al­ly decid­ing to exe­cute a con­ces­sion strat­e­gy under­mine the effi­cien­cy goals under­ly­ing counsel’s author­i­ty to make tri­al strat­e­gy deci­sions. Obtain­ing a client’s con­sent to advance a con­ces­sion strat­e­gy can be done in a sin­gle con­ver­sa­tion and is there­fore not imprac­ti­cal or undu­ly bur­den­some to the tri­al process.

More­over, the deci­sion to main­tain inno­cence or admit guilt in a cap­i­tal case involves a val­ue judg­ment per­son­al to the defen­dant. Cap­i­tal offens­es are reserved for the most seri­ous crimes, and the deci­sion of whether to admit guilt to such a crime should belong to the defen­dant alone.25 To allow defense coun­sel to over­ride his client’s deci­sion to main­tain inno­cence in a cap­i­tal case would be to con­done a brand of pater­nal­ism repug­nant to the val­ues of defen­dant auton­o­my enshrined by the Sixth Amend­ment. The Supreme Court long held that the accused retains “the ulti­mate author­i­ty to make cer­tain fun­da­men­tal deci­sions regard­ing the case.”26 In a cap­i­tal mur­der tri­al, a defendant’s deci­sion that his attor­ney may not affir­ma­tive­ly declare his guilt to the jury could hard­ly be more fun­da­men­tal to the case. Grant­i­ng a defen­dant the author­i­ty to make this sig­nif­i­cant deci­sion under­scores “the fun­da­men­tal legal prin­ci­ple that a defen­dant must be allowed to make his own choic­es about the prop­er way to pro­tect his own lib­er­ty.”27

Whether an attor­ney believes that his con­ces­sion strat­e­gy will ben­e­fit the defen­dant is of no import. The Supreme Court has held that “although [the defen­dant] may con­duct his own defense ulti­mate­ly to his own detri­ment, his choice must be hon­ored out of that respect for the indi­vid­ual which is the lifeblood of the law.”28 The issue is not whether con­ced­ing guilt was the strat­e­gy least like­ly to result in exe­cu­tion; it is whether a defendant’s deci­sion to reject a con­ces­sion strat­e­gy must be respect­ed under the Sixth Amendment.

Flori­da v. Nixon 29  is inap­po­site and does not mod­i­fy the analy­sis here. Nixon held that when the defen­dant is informed of counsel’s strat­e­gy to admit guilt in order to lessen defendant’s chance of receiv­ing a death sen­tence, “and the defen­dant is unre­spon­sive, counsel’s strate­gic choice is not imped­ed by any blan­ket rule demand­ing the defendant’s explic­it con­sent.”30 In that case, Nixon’s lawyer attempt­ed to explain his strat­e­gy of con­ced­ing guilt at least three times, but Nixon “nev­er ver­bal­ly approved or protest­ed [counsel’s] pro­posed strat­e­gy” and “was gen­er­al­ly unre­spon­sive.”[31] Nixon’s lawyer sub­se­quent­ly explained that he only pur­sued his con­ces­sion strat­e­gy after “fail­ing to elic­it a defin­i­tive response from Nixon.”32 The tri­al court found that Nixon con­sent­ed to the con­ces­sion strat­e­gy through his pat­tern of “pas­sive­ly receiv­ing infor­ma­tion;” this Court agreed, not­ing that Nixon’s coun­sel was “not addi­tion­al­ly required to gain express con­sent.”33 How­ev­er, when a defen­dant explic­it­ly and repeat­ed­ly com­mu­ni­cates that he dis­agrees with his attorney’s con­ces­sions strat­e­gy, he can­not be deemed unre­spon­sive. Such con­duct could not be fur­ther from Nixon’s “char­ac­ter­is­tic silence” that per­mit­ted his coun­sel to pur­sue a con­ces­sion strat­e­gy.34 As a result, an attor­ney can­not rely on Nixon to jus­ti­fy admit­ting his client’s guilt when his client has unequiv­o­cal­ly opposed such a decision.

This con­clu­sion coheres with the ABA Mod­el Rules of Pro­fes­sion­al Con­duct. An attorney’s eth­i­cal and pro­fes­sion­al oblig­a­tions require him to “abide by a client’s deci­sions con­cern­ing the objec­tives of the rep­re­sen­ta­tion” and to “con­sult with the client as to the means by which they are to be pur­sued.”35 Accord­ing­ly, when a defen­dant informs his coun­sel that he intends to main­tain his inno­cence to the jury, counsel’s eth­i­cal oblig­a­tions com­pel him to respect the defendant’s tri­al objec­tives. Thus, when coun­sel fails to uphold his client’s objec­tive to main­tain his inno­cence by declar­ing his guilt to the jury, coun­sel vio­lates both his client’s Sixth Amend­ment rights and his own eth­i­cal obligations.

Final­ly, when an attor­ney pur­sues a con­ces­sion strat­e­gy against his client’s objec­tion, he pro­vides inef­fec­tive assis­tance of coun­sel under the test out­lined in Cron­ic. The adver­sar­i­al process requires defense coun­sel to hold the pros­e­cu­tion to its bur­den of proof.36 When coun­sel admits his client’s guilt, he relieves pros­e­cu­tion of its bur­den of proof, result­ing in a break­down of the adver­sar­i­al process. More­over, when the attor­ney ques­tions his client on the stand, there is a fur­ther break­down of the adver­sar­i­al process because they present incon­sis­tent nar­ra­tives to the jury. When the defen­dant and his attor­ney have oppos­ing nar­ra­tives, ques­tion­ing resem­bles cross-exam­i­na­tion with the attor­ney play­ing the role of pros­e­cu­tor rather than the role of defense attorney.

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In sum, when a defense attor­ney pur­sues a con­ces­sion strat­e­gy over his client’s unequiv­o­cal objec­tion, he vio­lates the defendant’s Sixth Amend­ment right to con­duct his own defense and to make fun­da­men­tal deci­sions about his case. Addi­tion­al­ly, this con­duct con­sti­tutes inef­fec­tive assis­tance of coun­sel. The Supreme Court should hold such to safe­guard the integri­ty of defen­dants’ Sixth Amend­ment rights.


1. Rona Li is a 2L at New York Uni­ver­si­ty School of Law. This piece is a com­men­tary on a prob­lem writ­ten for the 2018 John J. Gib­bons Crim­i­nal Pro­ce­dure Moot Court Com­pe­ti­tion at Seton Hall Uni­ver­si­ty School of Law. The views expressed in this arti­cle do not nec­es­sar­i­ly rep­re­sent the views of the author on this point. Rather, this arti­cle is a dis­til­la­tion of one side of an argu­ment assigned to the team.
2. Flori­da v. Nixon, 543 U.S. 175, 190–193 (2004).
3. This issue is set to be decid­ed by the Supreme Court in McCoy v. Louisiana (2018).
4. 466 U.S. 648 (1984).
5. McK­askle v. Wig­gins, 465 U.S. 168, 174 (1984). See also Faret­ta v. Cal­i­for­nia, 422 U.S.806, 819–20 (1975) (“The right to defend is giv­en direct­ly to the accused; for it is he who suf­fers the con­se­quences if the defense fails”).
6. Weaver v. Mass­a­chu­setts, 137 S.Ct. 1899, 1908 (2017).
7. Sny­der v. Mass­a­chu­setts, 291 U.S. 97, 106 (1934).
8. U.S. Con­st. amend. VI. (“In all crim­i­nal pros­e­cu­tions, the accused shall enjoy the right…to have the assis­tance of coun­sel for his defense.”).
9. Faret­ta, 422 U.S. at 816 (inter­nal cita­tions omit­ted) (empha­sis added).
10. See Sim­mons v. Unit­ed States, 390 U.S. 377, 394 (1968) (“[W]e find it intol­er­a­ble that one con­sti­tu­tion­al right should have to be sur­ren­dered in order to assert another.”).
11. Faret­ta, 422 U.S. at 820.
12. See Gon­za­lez v. Unit­ed States, 553 U.S. 242, 249 (2008); Jones v. Barnes, 463 U.S. 745, 751 (1983).
13. Gon­za­lez, 553 U.S. at 249.
14. Id.; see also Pow­ell v. Alaba­ma, 287 U.S. 45, 69 (1932) (“Even the intel­li­gent and edu­cat­ed layman…lacks both the skill and knowl­edge ade­quate­ly to pre­pare his defense.”).
15. Gon­za­lez, 553 U.S. at 249–50.
16. See Tay­lor v. Illi­nois, 484 U.S. 400, 418 (1988) (“The adver­sary process could not func­tion effec­tive­ly if every tac­ti­cal deci­sion required client approval.”).
17. 466 U.S. 668, 687 (1984).
18. Unit­ed States v. Cron­ic, 466 U.S. 648, 658 (1984) (hold­ing when the cir­cum­stances “are so like­ly to prej­u­dice the accused that the cost of lit­i­gat­ing their effect in a par­tic­u­lar case is unjus­ti­fied,” the court must pre­sume prej­u­dice and need not inquire into counsel’s actu­al per­for­mance at trial).
19. Cron­ic, 466 U.S. at 656. The oth­er two sce­nar­ios are where there is a com­plete denial of coun­sel and where the sur­round­ing cir­cum­stances make it extreme­ly unlike­ly that any lawyer could pro­vide effec­tive assis­tance. Id.
20. Id. at 656 (“[T]he adver­sar­i­al process pro­tect­ed by the Sixth Amend­ment requires that the accused have coun­sel act­ing in the role of an advo­cate.”) (inter­nal cita­tions omit­ted); see also Flori­da v. Nixon, 543 U.S. 175, 189 (2004) (hold­ing there is inef­fec­tive assis­tance of coun­sel where “coun­sel has entire­ly failed to func­tion as the client’s advocate.”).
21. Faret­ta v. Cal­i­for­nia, 422 U.S.806, 820 (1975).
22. See, e.g., Deb­o­rah A. DeMott, The Lawyer as Agent, 67 Ford­ham L. Rev. 301, 301 (1998) (“the lawyer-client rela­tion­ship is a com­mon­sen­si­cal illus­tra­tion of agency”).
23. McK­askle v. Wig­gins, 465 U.S. 168, 170 (1984).
24. Gon­za­lez v. Unit­ed States, 553 U.S. 242, 253 (2008).
25. See Kennedy v. Louisiana, 554 U.S. 407, 420 (2008).
26. Jones v. Barnes, 463 U.S. 745, 751 (1983). In Jones the Supreme Court enu­mer­at­ed cer­tain rights—to plead guilty, waive a jury, tes­ti­fy on the defendant’s own behalf, or take an appeal—that may be waived only with the client’s con­sent. 463 U.S. at 751. But pro­ceed­ing absent a client’s explic­it con­sent is dis­tinct from pro­ceed­ing against a client’s express objections.
27. Weaver v. Mass­a­chu­setts, 137 S.Ct. 1899, 1908 (2017).
28. Faret­ta v. Cal­i­for­nia, 422 U.S.806, 834 (1975). Cf. Lee v. Unit­ed States, 137 S. Ct. 1958, 1968–69 (2017) (rec­og­niz­ing that a defen­dant might pre­fer to reject a guilty plea and pro­ceed to tri­al despite almost cer­tain conviction).
29. 543 U.S. 175 (2004).
30. 543 U.S. at 192 (empha­sis added).
31. Id. at 180.
32. Id. at 186.
33. Id. at 186–89.
34. Id. at 189.
35. Mod­el Rules of Prof’l Con­duct r. 1.2(a) (Am. Bar Ass’n 2014).
36. See Unit­ed States v. Cron­ic, 466 U.S. 648, 656 n.19 (1984) (“[E]ven when no the­o­ry of defense is avail­able, if the deci­sion to stand tri­al has been made, coun­sel must hold the pros­e­cu­tion to its heavy bur­den of proof beyond rea­son­able doubt.”).