Standards for the Appointment and Performance of Counsel in Death Penalty Cases (1988)

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Introduction to the 1988 Edition

The National Legal Aid & Defender Association (NLADA) is a private, non profit, national membership organization dedicated to the provision of quality legal services for poor people.  NLADA, along with other organizations and individuals, has recognized that poor defendants in this country who face the ultimate criminal sanction - death - frequently do not receive adequate representation from their government-supplied lawyers.

Capital defendants eligible for the appointment of counsel are often provided the services of attorneys who are inexperienced or otherwise unqualified to handle the high-stakes, complex litigation involved in a death penalty case.  Attorneys who do have adequate experience and personal skills are often not provided the resources to adequately assist their clients.

These Standards constitute an attempt to improve the quality of representation afforded to poor defendants charged with capital offenses.  Some national standards have been written for appointment of counsel for eligible defendants generally, general standards for defense counsel have been established, and specific Performance Guidelines for Criminal Defense Representation exist in draft form.  White some local standards may exist for capital representation, national standards on the assignment and performance of counsel in capital cases did not exist prior to these Standards.

Each of these Standards is followed by a commentary which sets out the rationale for the Standard.  Primary and secondary authorities are included.  "Should" is used as a mandatory term - what counsel "should" do is intended as a standard to be met now, not an ideal to be attained at a later time.

The "black letter" text of these standards is available here for free. NLADA members have access to the full versions of standards, including commentary, related standards, and legal sources. Printed versions of standards are also available in our store.

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Standard 1.1 Objective

Standard 2.1 Number of Attorneys Per Case

Standard 3.1 The Legal Representation Plan

Standard 4.1 Selection of Counsel

Standard 5.1 Attorney Eligibility

Standard 6.1 Workload

Standard 7.1 Monitoring; Removal

Standard 9.1 Training

Standard 10.1 Compensation

Standard 11.1 Establishment of Performance Standards
Standard 11.2 Minimum Standards Not Sufficient
Standard 11.3 Determining that the Death Penalty is Being Sought

Standard 11.4.1 Investigation
Standard 11.4.2 Client Contact

Standard 11.5.1 The Decision to File Pretrial Motions

Standard 11.6.1 The Plea Negotiations Process
Standard 11.6.2 The Contents of Plea Negotiations
Standard 11.6.3 The Decision to Enter a Plea of Guilty
Standard 11.6.4 Entry of the Plea Before the Court

Standard 11.7.1 General Trial Preparation
Standard 11.7.2 Voir dire and Jury Selection
Standard 11.7.3 Objection to Error and Preservation of Issues for Post Judgment Review

Standard 11.8.1 Obligation of Counsel at the Sentencing Phase of Death Penalty Cases
Standard 11.8.2 Duties of Counsel Regarding Sentencing Options, Consequences and Procedures
Standard 11.8.3 Preparation for the Sentencing Phase
Standard 11.8.4 The Official Presentence Report
Standard 11.8.5 The Prosecutor's Case at the Sentencing Phase
Standard 11.8.6 The Defense Case at the Sentencing Phase

Standard 11.9.1 Duties of Trial Counsel in Post Judgment Proceedings
Standard 11.9.2 Duties of Appellate Counsel
Standard 11.9.3 Duties of Post Conviction Counsel
Standard 11.9.4 Duties of Clemency Counsel
Standard 11.9.5 Duties Common to All Post Judment Counsel