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NCJ Number: 42663 Find in a Library
Title: CRIMINAL LAW - DISTRICT OF COLUMBIA CIRCUIT EXAMINES THE BURDEN OF PROVING PREJUDICE IN INADEQUATE COUNSEL CASES
Journal: FORDHAM LAW REVIEW  Volume:45  Issue:6  Dated:(MAY 1977)  Pages:1543-1552
Author(s): R W LYNN
Corporate Author: Fordham University
Urban Law Journal
School of Law
United States of America
Date Published: 1977
Page Count: 10
Sponsoring Agency: Fordham University
New York, NY 10023-7485
Format: Article
Language: English
Country: United States of America
Annotation: IN UNITED STATES V. DECOSTER (1976), THE DISTRICT COURT HELD ON APPEAL THAT SINCE THE DEFENSE ATTORNEY HAD FAILED TO UNDERTAKE A FACTUAL INVESTIGATION, THE DEFENDANT HAD BEEN DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL.
Abstract: FURTHER, IT MAINTAINED THAT THE GOVERNMENT WAS UNABLE TO SUSTAIN ITS BURDEN OF PROOF THAT THE DEFENDANT WAS NOT PREJUDICED BY ITS INADEQUATE COUNSEL. THIS ARTICLE CONSIDERS THE ISSUE OF WHO SHOULD BEAR THE BURDEN OF PROVING THAT SUCH INEFFECTIVE COUNSEL WAS IN SOME WAY PREJUDICIAL TO THE DEFENDANT. HIGHLIGHTED IS THE 1967 SUPREME COURT DECISION IN CHAPMAN V. CALIFORNIA THAT CONSTITUTIONAL ERROR IN ILLEGALLY ADMITTING HIGHLY PREJUDICIAL EVIDENCE OR COMMENTS, CASTS ON SOMEONE OTHER THAN THE PERSON PREJUDICED BY IT A BURDEN TO SHOW THAT IT WAS HARMLESS. THE AUTHOR SUGGESTS A FLEXIBLE APPROACH WHICH WOULD DECIDE THE ISSUE ON AN AD HOC BASIS. FOR EXAMPLE, IF THE EXISTENCE OF EVIDENCE THAT WENT UNDISCOVERED DUE TO ACTION OF DEFENDANT'S COUNSEL IS MORE READILY AVAILABLE TO THE ACCUSED, OR EVEN EQUALLY ASCERTAINABLE TO BOTH PARTIES, THEN THE COURT SHOULD NOT INTERVENE IN THE CRIMINAL PROCESS UNTIL THE DEFENDANT CAN PROVE THAT THE ABSENCE OF THIS INFORMATION SOMEHOW PREJUDICED HIS DEFENSE. FURTHER, A DEFENDANT CLAIMING TO BE PREJUDICED BY THE FAILURE OF HIS COUNSEL TO CONDUCT A FACTUAL INVESTIGATION SHOULD HAVE THE BURDEN OF PROVING THAT SUCH AN INVESTIGATION COULD HAVE PRODUCED BENEFICIAL ADMISSIBLE EVIDENCE. LASTLY, IF NO SPECIAL CIRCUMSTANCES EXIST JUSTIFYING PLACING THE BURDEN ON EITHER PARTY, IT WOULD SEEM FAIR TO PLACE IT ON THE STATE AND GRANT A NEW TRIAL, SINCE THE DEFENDANT'S LIBERTY IS AT STAKE. THUS, IF THE RECORD CLEARLY INDICATES THAT THERE WERE SERIOUS FLAWS IN THE PRESENTATION OF THE DEFENDANT'S CASE, BUT THE PREJUDICIAL EFFECT IS NOT EASILY DETERMINABLE, THE STATE SHOULD HAVE THE BURDEN OF DEMONSTRATING LACK OF PREJUDICE. (AUTHOR ABSTRACT MODIFIED)...EW
Index Term(s): Burden of proof; Defense counsel; District of Columbia; Judicial decisions; Post-conviction remedies; Right to counsel; Rights of the accused
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http://www.ncjrs.gov/App/publications/abstract.aspx?ID=42663

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