Colin Miller


Defense counsel, and not the defendant, has the power to make most decisions in a criminal case. Until recently, there were only four decisions reserved for the defendant: whether to (1) plead guilty, (2) waive the right to a jury trial, (3) testify, and (4) forgo an appeal. In McCoy v. Louisiana, the United States Supreme Court recently added a fifth decision reserved for the client: the right to autonomy, i.e., the right to decide on the objective of her defense. Under this right, a defendant can prevent her attorney from admitting her legal guilt at trial by preemptively objecting to this course of conduct. But what if the defendant didn't (and couldn't) object because defense counsel never ran the decision to admit guilt by her client? And what if, without the defendant's consent, defense counsel admitted that her client committed an element of the crime but not all of the elements (e.g., actus reus but not mens rea)? Would McCoy be inapposite because the client did not object and/or her attorney did not admit full legal guilt? Courts have split on both issues, leading to the question of what constitutes the real McCoy. This Article argues that the right to autonomy is broad and precludes a defense attorney from admitting any opprobrious element of the crime(s) charged without first disclosing that decision to his client.

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