NCJ Number
64630
Journal
American Criminal Law Review Volume: 17 Issue: 2 Dated: (FALL 1979) Pages: 233-252
Date Published
1979
Length
20 pages
Annotation
THE NEED FOR JUDICIAL STANDARDS TO GAUGE THE COMPETENCY OF DEFENSE COUNSEL IN CRIMINAL CASES IS HIGHLIGHTED IN A REVIEW OF CONFLICTING STANDARDS APPLIED BY FEDERAL AND STATE COURTS TO DETERMINE COMPETENCE.
Abstract
THE CONSTITUTION REQUIRES THAT ACCUSED PERSONS HAVE THE RIGHT TO COUNSEL BUT DOES NOT SPECIFY WHETHER COURTS MUST PROVIDE COUNSEL TO INDIGENTS OF WHAT THE LEVEL OF COMPETENCE REQUIRED OF SUCH COUNSEL SHOULD BE. NUMEROUS COURTS HAVE SUPPLEMENTED THEIR TESTS FOR MEASURING ATTORNEY CONDUCT AGAINST CONSTITUTIONAL REQUIREMENTS WITH SPECIFIC STATEMENTS OF COUNSEL DUTIES. SOME OF THE AMERICAN BAR ASSOCIATION STANDARDS RELAING TO THE DEFENSE FUNCTION EXPRESS SELF-EVIDENT CONCEPTS OF PROFESSIONAL ETHICS, ALTHOUGH MANY FOCUS ON SPECIFIC PROCEDURES TO FACILITATE THE AD HOC RESOLUTION OF DIFFICULT JUDICIAL PROBLEMS AND TO PROVIDE NOTICE TO ATTORNEYS OF WHAT IS EXPECTED OF THEM. THE CALIFORNIA SUPREME COURT HAS ENUMERATED BASIC DUTIES REQUIRED OF DEFENSE COUNSEL BY THE CONSTITUTION. COUNSEL MUST ACTIVELY PARTICIPATE IN THE FULL AND EFFECTIVE PREPARATION OF THE CLIENT'S CASE; CAREFULLY INVESTIGATE ALL DEFENSES OF FACT AND LAW THAT MAY BE AVAILABLE TO THE DEFENDANT; CONFER WITH THE CLIENTS AS OFTEN AS NECESSARY TO ELICIT INFORMATION PERTINENT TO THE DEFENSE; ADVISE THE CLIENT OF HIS OR HER RIGHTS AND TAKE ALL NECESSARY ACTIONS TO PRESERVE THEM; AND BE CONCERNED WITH THE ACCUSED'S RIGHT TO BE RELEASED FROM CUSTODY PENDING TRIAL AND BE PREPARED WHEN APPROPRIATE TO MAKE MOTIONS FOR A PRETRIAL PSYCHIATRIC EXAMINATION OR THE SUPPRESSION OF EVIDENCE. DIVERGENT TESTS SET OUT IN PLURALITY AND DISSENTING OPINIONS IN THE DECOSTER III CASE INVOLVING THE U.S. COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA TYPIFY THE CONFUSION SURROUNDING THE ISSUE OF DEFENSE COUNSEL COMPETENCE. THE 'FARCE AND MOCKERY' STANDARD, EMPLOYED AS A SHORTHAND RECOGNITION OF THE JUDICIARY'S RELUCTANCE TO EXAMINE THE CONDUCT OF DEFENSE COUNSEL, AND THE 'REASONABLE LAWYER' OR 'COMMUNITY STANDARDS' APPROACH ARE DISCUSSED. CASE LAW IS REVIEWED. (DEP)