By: Ofer Raban
The story of New York’s “derivative right to counsel” is the
story of an intellectual failure, and possibly an ethical failure,
on the part of New York’s highest court. The “derivative right to
counsel”—which extended the right to counsel to defendants who were
represented by counsel on one offense, and were then questioned
about another, utterly unrelated crime—was born out of a clearly
mistaken interpretation of a 1979 case. The mistake was eventually
recognized, and the doctrine overruled in 1990; but the derivative
right was soon reintroduced through a series of cases purporting to
apply the very case which sought to eliminate it. The story is, at
best, one of recurring bungles, both on the part of majority
opinions and on the part of the opposing dissents. The result today
is a legal regime that excludes reliable confessions from trials
for no good reason, and favors dangerous recidivists over first
time arrestees or people accused of minor crimes. It is an
often-heard accusation, and for the most part a wholly unfounded
one, that the criminal justice system coddles criminals; yet, in
the derivative right to counsel, New York constitutional law does
just that, and for no justifiable reason. It is high time for a
re-examination of this area of our law, and for the final abolition
of this unjustified and convoluted constitutional doctrine.