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10 Crim. Just. 1 (1982-1983)

handle is hein.journals/crijust10 and id is 1 raw text is: 


      IUST] CCE M

Justice White Speaks on Criminal
Trial   Lawyer Competency
Says matters must be and will be
threshed out, in time

  LdXUI  HU uyd l I Inlt   1y, YUUI  LU tIJIK  H It-  oUI I  yt ml.UIUy Ul
the Profession, is all-embracing; and your trisection of the
subject into teaching, practicing and judging is an apt one
whether we deal with competence in the courtroom or out
of it and whether we address the civil or criminal practice.
The law schools educate lawyers of all kinds, and all
lawyers have standards they must satisfy whatever their
practice may be. So too, judges become involved
whenever a disbarment, suspension or reprimand for
neglect or incompetence is challenged in the courts as it
frequently is. But because this is a program of the Section
of Criminal Justice, perhaps I should confine my remarks
primarily to the competence of those who prepare for and
participate in the trial of criminal cases.
  The goal of providing competent counsel in criminal
cases has been ever-evolving, at least as a matter of
federal constitutional and statutory law. Prior to the adop-
tion of the first ten amendments on December 15, 1791,
Congress had provided that 'in all the courts of the United
States, the parties may plead and manage their own
causes personally or by the assistance of such counsel or
attorneys at law as provided by the rules of said courts. It
had also provided for a special right to counsel in capital
cases. The Sixth Amendment, proposed on September 25,
1789, 1 Stat. 79, in relevant part provides that in all criminal
prosecutions, the accused shall enjoy the right  . to have
the Assistance of Counsel for his defense.
  None  of these provisions was in terms applicable to the
states, and none in terms referred to furnishing counsel in
non-capital felonies to those who could not afford to hire
counsel. It was not until the Scottsboro case in 1932 that
the Supreme Court held that a defendant in a capital case
in state court was entitled by virtue of the Due Process

(Continued On Page 4)

6th   Amendment Program in San
Francisco - A Shield, and a Sword for Defendant
  A continuing legal education program on The Sixth
Amendment   and the Future of the Adversary Process,
featuring Irving Younger and a host of other prominent
practitioners and experts, will be held Feb. 18-19, 1983 at
the Westin-St. Francis Hotel in San Francisco.
   In making this announcement, CJS Programs and In-
stitutes Committee Chairperson Edward J. Imwinkelried
of Washington University in St. Louis, said the program will
provide a forum to school lawyers in the multi-purpose ap-
plication and use of the sixth amendment.
  'Recent developments in this field,' he said - 'new
legislation, case law and prosecutorial tactics - are pro-
foundly affecting the defense bar's ability to adequately
represent defendants within the adversary system. The
fourth and fifth amendments have become less formidable
barriers for prosecutors, and criminal defense lawyers will
find themselves relying more and more heavily upon sixth
amendment  provisions to stay on a more equal footing with
aggressive prosecutorial practices in the 1980s.
  The program is designed for defense lawyers and pro-
secutors. Among topics will be a discussion of the confron-
tation clause and prosecution hearsay; hypnotically
enhanced testimony; restrictions imposed by the counsel
clause on confessions and confidentiality; prosecutorial
                               (Continued On Page 2)


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