Lafler and Frye: Constitutionalizing Plea Bargaining

With the Lafler and Frye decisions, the U.S. Supreme Court has widened the Sixth Amendment beyond its precedents, continuing the Court’s expansive approach to that amendment. When an attorney is ineffective regarding the critical decision to enter a guilty plea or go to trial, the Sixth Amendment is implicated. Donna Lee Elm discusses five scenarios: (1) bad advice on the law concerning sentencing, (2) bad advice on the law regarding trial, (3) failure to communicate plea negotiations, (4) bad advice arising from incompetent investigation, and (5) bad advice from prosecutors and judges.