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Denials are a basic and often automatic response to an allegation that we have committed some wrong. Every parent has heard not me more times than he or she wants to acknowledge. The not me response is instinctive in young children, but as we mature, we learn that not me is often followed by the question: If not you, then who? Accordingly, we discover that denial is not nearly as effective unless we shift the blame to someone else. This phenomenon of childhood applies with equal force in criminal cases, where a defendant has been accused of wrongdoing. Where that defendant denies responsibility, says not me, and attempts to introduce evidence to address the then who question, what, if any, responsibilities does defense counsel have before engaging in blame-shifting behavior? Are there specific rules or considerations that apply in such situations? This Article addresses those questions, examining both ethical considerations and evidentiary rules, and concludes with proposals for change to address the apparent disjunction between the perceived ethical obligations of reasonably zealous criminal defense attorneys and evidentiary rules that improperly restrict that zeal.

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Fordham Law Review





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