Why Strickland Is the Wrong Test for Assessing Violations of the Right to Testify

Authors

Daniel J. Capra, Fordham University School of LawFollow
Joseph Tartakovsky, Claremont Institute for the Study of Statesmanship and Political PhilosophyFollow

Document Type

Article

Publication Title

Washington and Lee Law Review

Volume

70

Publication Date

2013

Keywords

Strickland; criminal procedure

Abstract

A criminal accused has a constitutional right to testify in his own defense. The right has an undisputed place alongside the most important "personal" rights, like the right to remain silent or the right to represent oneself. But in the 1990s, courts began to apply the ineffective-assistance test of Strickland v. Washington to evaluate claims by a defendant that his right to testify was abridged. In practice this nullifies the right. Moreover, the Strickland test is inapposite because it focuses on counsel and not the defendant's right to testify. This Article proposes a new test to better secure and enforce the right, without subjecting courts to burdensome post-trial motions.

Recommended Citation

Daniel J. Capra and Joseph Tartakovsky, Why Strickland Is the Wrong Test for Assessing Violations of the Right to Testify, 70 Wash. & Lee L. Rev. 95 (2013)
Available at: https://ir.lawnet.fordham.edu/faculty_scholarship/646