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- Title
RETHINKING THE RIGHT-TO-COUNSEL-OF-CHOICE BALANCING TEST: AN ORIGINALIST APPROACH.
- Authors
CAPOBIANCO, JOSEPH M.
- Abstract
Although balancing tests are common in criminal procedure, the United States Supreme Court has grown skeptical of them. In fact, in Ramos v. Louisiana, decided in the 2020 term, the Court replaced one of the last remaining balancing tests for the core of a criminal procedure right. This replacement follows on the heels of other similar replacements in recent decades. Legitimacy concerns drive the Court's slow elimination of balancing tests. The Court appears concerned that many of these balancing tests are unjustified and unexplained and therefore raise the specter of injustice and abuse. The only balancing tests remaining-for such rights as the speedy trial right-rest on substantial, explicit justifications. Indeed, these few remaining balancing tests for the core of criminal procedure rights are explained at length by the Court. The right-to-counsel-of-choice balancing test is not explained, however. It therefore raises many of the concerns for legitimacy expressed by the Court. To remedy these concerns, this article seeks to fortify the justifications for the balancing test, lest it suffer the same fate as the one in Ramos. But this article finds these justifications to be incomplete: they are only persuasive in conflict-of interest cases. In all others, the justifications collapse. This article therefore rethinks the balancing test and proposes an alternate way to apply the right to counsel of choice. This article proposes adopting an originalist approach to the right to counsel of choice and seeks to explain how an originalist approach would supplant the current test. This article concludes that an originalist approach would be a workable and effective way to apply the right to counsel of choice.
- Subjects
RIGHT to counsel; BALANCING test doctrine (Law); CRIMINAL procedure; UNITED States. Supreme Court; ACTIONS &; defenses (Law)
- Publication
South Dakota Law Review, 2023, Vol 68, Issue 1, p1
- ISSN
0038-3325
- Publication type
Article