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NCJRS Abstract

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NCJ Number: 40486 Find in a Library
Title: INEFFECTIVE ASSISTANCE OF COUNSEL - WHO BEARS THE BURDEN OF PROOF?
Journal: BAYLOR LAW REVIEW  Volume:29  Issue:1  Dated:(WINTER 1977)  Pages:29-55
Author(s): D C KENT
Corporate Author: Baylor University
Law School
United States of America
Date Published: 1977
Page Count: 27
Sponsoring Agency: Baylor University
Waco, TX 76798
Format: Article
Language: English
Country: United States of America
Annotation: ANALYSIS OF CASES DEALING WITH THE SIXTH AMENDMENT RIGHT TO THE EFFECTIVE ASSISTANCE OF COUNSEL FOR INDIGENT DEFENDANTS WITH FOCUS ON THE U.S. COURT OF APPEALS FOR DISTRICT OF COLUMBIA DECISION (1976) OF U.S. V. DECOSTER.
Abstract: THE DECOSTER DECISION HELD THAT IN CASES WHERE DEFENSE COUNSEL SUBSTANTIALLY VIOLATES HIS DUTY TO HIS CLIENT BY RENDERING INEFFECTIVE ASSISTANCE, THE GOVERNMENT MUST DEMONSTRATE A LACK OF PREJUDICE THEREFROM. THE DECOSTER RULE PRESUMES THE EXISTENCE OF A PREJUDICIAL EFFECT IN SUCH CASES WHICH MUST BE DISPROVED BY THE GOVERNMENT IF THE VERDICT IS TO STAND. PREVIOUS DECISIONS DEALING WITH INEFFECTIVE ASSISTANCE OF COUNSEL PLACED THE BURDEN OF PROVING PREJUDICE ON THE DEFENDANT. THIS ARTICLE ANALYZES THE MAJORITY AND DISSENTING OPINIONS OF THE DECOSTER DECISION AND REVIEWS THE PRECEDENTS FOR, AND IMPLICATIONS OF, THE CASE. PERTINENT SUPREME COURT CASES AS WELL AS THE BURDEN OF PROOF DOCTRINE IN OTHER FEDERAL CIRCUITS ARE DISCUSSED IN COMPARISON TO DECOSTER. THE AUTHOR CONCLUDES THAT THE DECOSTER RULE PENALIZES THE PROSECUTION FOR MATTERS OVER WHICH IT HAS NO CONTROL. THE RULE EVEN ENCOURAGES INEFFECTIVE ASSISTANCE OF COUNSEL BY REWARDING IT. A MORE FLEXIBLE RULE OF PROVING PREJUDICE IS RECOMMENDED....MSP
Index Term(s): Analysis; Appellate courts; Burden of proof; District of Columbia; Federal courts; Judicial decisions; Right to counsel; US Supreme Court
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=40486

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