NCJ Number
38558
Journal
Valparaiso University Law Review Volume: 10 Issue: 3 Dated: (SPRING 1976) Pages: 509-555
Editor(s)
J S BORK
Date Published
1976
Length
47 pages
Annotation
THIS NOTE EXPLORES THE JUDICIAL TREND TOWARDS VIEWING THE RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL AS DERIVED NOT ONLY FROM THE DUE PROCESS CLAUSE, BUT FROM THE SIXTH AMENDMENT ASSISTANCE OF COUNSEL CLAUSE.
Abstract
FROM ITS INCEPTION IN POWELL V. ALABAMA (1932), THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL HAS BEEN PROTECTED BY DUE PROCESS PRINCIPLES. A CONVICTED DEFENDANT HAD TO DEMONSTRATE THAT HIS LAWYER'S INEPITITUDE REDUCED HIS TRIAL TO A MOCKERY OF JUSTICE, AND HENCE WAS VIOLATIVE OF DUE PROCESS, IF HE WOULD SUCCESSFULLY ASSERT THAT HIS COUNSEL WAS INEFFECTIVE. HOWEVER, THE TREND TOWARDS VIEWING THE SIXTH AMENDMENT AS A BASIS FOR THIS RIGHT HAS LED SOME CIRCUITS TO ADOPT NEW TESTS FOR MEASURING INEFFECTIVENESS CLAIMS. FEDERAL COURTS DIFFER ON THE BURDEN AND QUANTUM OF PROOF AND THE DEGREE OF PREJUDICE, IF ANY, REQUIRED TO SHOW INEFFECTIVENESS OF COUNSEL. THIS NOTE EXAMINES CONTEMPORARY APPROACHES TO THE INEFFECTIVENESS ISSUE AND THE HISTORICAL DEVELOPMENT OF THIS RIGHT. THE PRACTICAL ARGUMENTS FOR CONTINUED APPLICATION OF THE SUBJECTIVE MOCKERY OF JUSTICE STANDARD ARE ANALYZED AND WEIGHED AGAINST THE MORE IDEALISTIC ARGUMENTS FOR AN OBJECTIVE STANDARD OF REASONABLE COMPETENCY WHICH CONCEIVABLY WOULD MORE STRICTLY PROTECT A DEFENDANT'S SIXTH AMENDMENT RIGHTS. THE AUTHOR CONCLUDES THAT UNTIL PERMANENT SOLUTIONS TO THE INEFFECTIVENESS PROBLEM CAN BE FOUND A WORKABLE REMEDY FOR ATTORNEY INEFFECTIVENESS SHOULD INCLUDE AN OBJECTIVE STANDARD OF COMPETENCY. (AUTHOR ABSTRACT)