The Psychology of Conflicts of Interest in Criminal Cases

Abstract

This article demonstrates that current Sixth Amendment jurisprudence fails to account for how defense lawyers respond to conflicts of interest in criminal cases. Too often, the Supreme Court has made assumptions about the behavior of defense lawyers without empirical support. The result has been a confusing doctrinal landscape, which both relies upon and questions the ability of defense lawyers to address and resolve conflicts of interest. This article fills the gap in existing literature by viewing conflicts of interest in criminal cases through the prism of behavioral economics. The research reveals that defense lawyers are subject to psychological biases that undermine their ability to be objective when balancing self-interest with duties to others. The result is a systematic error of judgment that favors self-interest when conflicts are present. This article proposes a new approach to the Sixth Amendment that better aligns legal rules with how lawyers actually respond to conflicts of interest. Instead of the current test for ineffective assistance of counsel -- which requires proof that a conflict of interest adversely affected the representation provided -- the proposed test focuses on the degree of risk that a conflict existed before conviction. This test will reduce the importance of the testimony of the lawyer whose conduct is under scrutiny when a conflict is alleged.