Do Prosecutors Really Matter?: A Proposal to Ban One-Sided Bail Hearings

 In Articles, Symposium

The inspiring story of Gideon v. Wainwright gives lawyers and law students alike the impression that indigent people will be provided with defense counsel when they are charged with a crime. What few people realize, however, is that in about half the local jurisdictions in this country arrested individuals appear at a pivotal hearing—the probable cause and bail hearing—and face a judge and, in many cases, a prosecutor but with no defense counsel to speak on their behalf. In those jurisdictions, prosecutors present the government’s evidence of probable cause, and judges make both probable cause and bail determinations for a person who stands alone before the judge and the representative for the State. What must defendants think of this proceeding? If they suspect that process is not designed to protect them, they would be right. One empirical study entitled Do Attorneys Really Matter? The Empirical and Legal Case for the Right of Counsel at Bail made perfectly clear that people tend not to fare well at hearings where they appear without counsel, as compared to defendants in the same jurisdiction who had the assistance of counsel.

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