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American Ineffective Assistance Of Counsel Doctrine And Its Use For Reference

Posted on:2015-11-17Degree:MasterType:Thesis
Country:ChinaCandidate:Y ShenFull Text:PDF
GTID:2296330467966286Subject:Procedural Law
Abstract/Summary:PDF Full Text Request
Ineffective assistance of counsel doctrine is a system to protect the right of the defendantto effective assistance of counsel. The court may reverse and remand the case on the conditionthat defendant’s counsel is substantially incompetent to protect the defendant’s right to fairtrial. Different from the external guarantee of the right to defense, such as improving lawyer’sprocedural rights and practical environment, ineffective assistance of counsel doctrine is aform of internal impetus to the development of the right of defense. The measures to solve theproblems of wrongful conviction or sentencing in China are insufficient, though the penaltyon counsel’s misconduct and negligence of duty do exist. Therefore, based on the experienceof American ineffective assistance of counsel doctrine, this article proposes to establish anineffective assistance of counsel doctrine in China with the purpose to supervise the counsel’spractice and ensure the remedy to those defendants whose right of defense have beeninfringed. The whole article is divided into four parts and includes30,000words.Part I is the introduction of ineffective assistance of counsel doctrine including thedefinition, the relationship between ineffective assistance of counsel doctrine and the right toeffective assistance of counsel—the former is the guarantee of the latter, which places theroles of both ex post facto sanction and precaution, and the theory basis of ineffectiveassistance of counsel doctrine.Part II depicts American ineffective assistance of counsel doctrine and analyzes its prosand cons on criminal judicial system. In United States, three reasons should be accountable:improper interference of government or judicial branch, conflicts of interests and theincompetence of counsels. Generally, defendant should file an petition for ineffectiveassistance of counsel in indirect judicial review stage and bear corresponding burden of proof.And the standard of burden of proof already changed from “farce and mockery test” to“reasonable competence test”. However, since Strickland(1984),“two-prong test” has beenapplied by Federal court as the uniform standard for ineffective assistance of counsel cases.This doctrine, since its establishment is contributory and controversial in American criminallegal system, the filing method and “two-prong test” of which are especially debatable. Thusthe author will analyze above aspects in detail to help the establishment of Chinese ineffectiveassistance of counsel doctrine. Part III will analyze the necessities of ineffective assistance of counsel doctrine. Alongwith the trial reform, defendant becomes increasingly dependent on counsel, thus effectiveassistance of counsel become more and more important. On the contrary, inadequacy ofqualified criminal defense, legislative remedies and due attention are still serious problems inChinese criminal defense system. Therefore, ineffective assistance of counsel doctrine isnecessity for criminal procedure to the extent of proving criminal defense and ensuring fairtrial.As the Gordian Knot and final foothold, part IV specifies the measures to developinefficient assistance of counsel in China. As a whole, we should balance two kinds ofrelationships: first, the relationship between American ineffective assistance of counseldoctrine and Chinese judicial conditions; second, the relationship between defendant’sdefense right and the independence of lawyer. Then this article will predict the obstaclesduring the process of the establishment of ineffective assistance of counsel—the limitation ofcriminal defense counsel and the low rate of criminal defense. Based on analysis of aboveobstacles, the author will discuss the applicable procedures of ineffective assistance ofcounsel doctrine in detail, including the scope of application, the filing method, the burdenand standard of proof, the remedies of rejecting petition judgment and the role of legalpractice regulation in the application of ineffective assistance of counsel doctrine.
Keywords/Search Tags:effective assistance of counsel, ineffective assistance of counsel, ineffective assistance of counsel doctrine, reference and creative establishment
PDF Full Text Request
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