As a general rule, some decisions in the course of a criminal trial are made by the defendant and others are made by defense counsel. A defendant decides, for example, whether to testify and whether to plead guilty. Counsel typically decides strategy issues, such as which jurors to strike, which witnesses to call, and whether and how to conduct cross-examination. However, in North Carolina, the doctrine of absolute impasse affects these rules. Under this doctrine, when defense counsel and a fully informed criminal defendant reach an absolute impasse as to tactical decisions, the client's wishes must control. The seminal North Carolina case on absolute impasse is State v. Ali, 329 N.C. 304, 404 (1991), which grounded the rule on the principal-agent nature of the attorney-client relationship. In this post I’ll address some frequently asked questions about the absolute impasse rule. Are there any limitations on the rule? Yes. The absolute impasse rule applies only when the defendant’s wishes with regard to trial strategy are lawful. State v. Williams, 191 N.C. App. 96, 104-05 (2008) (even if there was an absolute impasse as to jury selection tactics, defense counsel could not defer to the defendant’s wishes to engage in racially discriminatory jury selection). What exactly is an absolute impasse? In order for an absolute impasse to occur, the defendant and defense counsel must be locked in controversy regarding a matter of trial strategy, such as whether to strike a prospective juror. However, not all disagreements between a defendant and defense counsel rise [...]
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