The Champion

August 2012 , Page 30 

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Lafler and Frye: Constitutionalizing Plea Bargaining

By Donna Lee Elm

On March 21, 2012, the Supreme Court handed down opinions in Missouri v.Frye and Lafler v. Cooper,1precedent that is remarkable. Justice Scalia lamented in dissent, “The Court today opens a whole new field of criminal procedure: plea-bargaining law.”2 He was right. The effect these two cases can have on federal as well as state criminal practice is substantial.

Expansion of the Sixth Amendment

The past decade has seen significant growth in constitutional protections afforded under the Sixth Amendment to the U.S. Constitution. Ten years ago, the Court handed down Ring v. Arizona,3 extending the Sixth Amendment jury right to capital sentencing. That same rationale was the basis for its subsequent decision in Blakely v. Washington,4 providing the right to a jury determination for noncapital fact-based sentencing issues. A few months later, the Court handed down its watershed decision of Crawford v. Washington,5 extending the Sixth Amendment’s confrontation right to hearsay that is “testimon

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