Publication Type: Conference Paper/Unpublished Manuscript
Review Method: Peer Reviewed
Abstract: This paper will provide a discussion of the history and scholarship concerning the right to counsel in criminal cases, with particular focus on the right to effective assistance of counsel in capital cases. The review covers the English judicial doctrine, the codification of the right in the early colonial charters and state constitutions, and the modern interpretation and application of the sixth amendment. It discusses the evolution of the right from consultation with private counsel to appointment of counsel for indigents. It addresses principles of federalism and state autonomy, covering landmark cases. The paper will address corollaries of the right to counsel in capital cases; counsel’s effective assistance, performance standards, appointment and compensation, and conflict of interest issues, which go to the heart of the fair administration of the death penalty. Good representation, performance standards and compensation may lead to fewer death sentences. Capital cases involve unique procedures, requiring specialized experience with juries in guilt and penalty phases. While the sixth amendment standards for effective assistance of counsel in criminal cases differ analytically from "death is different standard" applied in eighth amendment capital cases, recent cases show that the Court is sensitive to capital counsel’s special duties regarding mitigation evidence.