NCJ Number
51001
Journal
American Criminal Law Review Volume: 16 Issue: 1 Dated: (SUMMER 1978) Pages: 67-78
Date Published
1978
Length
12 pages
Annotation
THE FAILURE OF THE U.S. SUPREME COURT TO BETTER DEFINE WHAT CONSTITUTES EFFECTIVE ASSISTANCE OF COUNSEL IS CRITICIZED. SUGGESTIONS ARE PROVIDED FOR RECTIFYING THE SITUATION THROUGH JUDICIAL REVIEW OF SELECTED CASES.
Abstract
IN MCMANN VERSUS RICHARDSON (1970), THE SUPREME COURT HELD THAT THE SIXTH AMENDMENT RIGHT TO ASSISTANCE OF COUNSEL IS THE RIGHT TO EFFECTIVE ASSISTANCE: TRIAL JUDGES SHOULD STRIVE TO MAINTAIN PROPER STANDARDS OF PERFORMANCE BY ATTORNEYS WHO ARE REPRESENTING DEFENDANTS IN CRIMINAL CASES IN THEIR COURTS. THE COURT STATED THAT A DEFENSE ATTORNEY MUST ACT WITHIN THE RANGE OF COMPETENCE DEMANDED OF ATTORNEYS IN CRIMINAL CASES BUT DID NOT EXPLAIN WHAT THAT RANGE OF COMPETENCE WAS. SUBSEQUENTLY THE COURT HAS REFUSED TO DEFINE THE CONSTITUTIONAL REQUIREMENT OF EFFECTIVENESS MORE FULLY, AND ALTHOUGH MANY JUSTIFICATIONS FOR REVIEW EXIST, THE COURT CONSISTENTLY DENIES CERTIORARI TO CASES RAISING EFFECTIVE ASSISTANCE ISSUES. GROUNDS FOR GRANTING CERTIORARI ARE SUGGESTED, INCLUDING THE NEED TO STANDARDIZE THE CONFLICTING TESTS OF EFFECTIVE ASSISTANCE USED BY STATE AND FEDERAL COURTS, THE NEED TO DETERMINE WHETHER CERTAIN TYPES OF ERRORS ARE MORE LIKELY TO BE OF CONSTITUTIONAL SIGNIFICANCE THAN OTHERS, AND THE NEED TO DETERMINE WHAT PROCEDURES CAN BE USED TO PRESERVE EFFECTIVE ASSISTANCE CLAIMS. RECENT (1970-78) SUPREME COURT DECISIONS WHICH HAVE AVOIDED THE QUESTION OF EFFECTIVE ASSISTANCE ARE NOTED AND DISCUSSED, WITH ATTENTION TO THE USE OF INCONSISTENT STANDARDS TO DECIDE EFFECTIVENESS CLAIMS, THE TYPE AND TIMING OF ERRORS, PROCEDURAL QUESTIONS, AND THE SUPREME COURT'S INDIRECT TREATMENT OF EFFECTIVE REPRESENTATION ISSUES. IT IS CONCLUDED THAT THE DENIAL OF CERTIORARI IS, AS A MATTER OF LAW, MEANINGLESS. HOWEVER, THE CONSISTENT DENIAL OF REVIEW TO CASES DIRECTLY RAISING THE ISSUE OF EFFECTIVE ASSISTANCE AND THE AVOIDANCE OF THE ISSUE IN SUPREME COURT DECISIONS DEMONSTRATES THE EXISTENCE OF A POLICY NOT TO DECIDE WHAT CONSTITUTES A CONSTITUTIONALLY ADEQUATE LEVEL OF REPRESENTATION. REFERENCES ARE FOOTNOTED. (KBL)