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Rule 801 – Qualifications for Defense Counsel in Capital Cases

May 14, 2021 | Criminal Procedure, Pennsylvania

In all cases in which the attorney for the Commonwealth has filed a Notice of Aggravating Circumstances pursuant to Rule 802, before an attorney may participate in any stage of the case either as retained or appointed counsel, the attorney must meet the educational and experiential criteria set forth in this rule.

(1) EXPERIENCE: Counsel shall

(a) be a member in good standing of the Bar of this Commonwealth;
(b) be an active trial practitioner with a minimum of 5 years criminal litigation experience; and
(c) have served as lead or co-counsel in a minimum of 8 significant cases that were given to the jury for deliberations. If representation is to be only in an appellate court, prior appellate or post-conviction representation in a minimum of 8 significant cases shall satisfy this requirement. A “significant case” for purposes of this rule is one that charges murder, manslaughter, vehicular homicide, or a felony for which the maximum penalty is 10 or more years.
(2) EDUCATION:

(a) During the 3-year period immediately preceding the appointment or entry of appearance, counsel shall have completed a minimum of 18 hours of training relevant to representation in capital cases, as approved by the Pennsylvania Continuing Legal Education Board.
(b) Training in capital cases shall include, but not be limited to, training in the following areas:

(i) relevant state, federal, and international law;
(ii) pleading and motion practice;
(iii) pretrial investigation, preparation, strategy, and theory regarding guilt and penalty phases;
(iv) jury selection;
(v) trial preparation and presentation;
(vi) presentation and rebuttal of relevant scientific, forensic, biological, and mental health evidence and experts;
(vii) ethical considerations particular to capital defense representation;
(viii) preservation of the record and issues for post-conviction review;
(ix) post-conviction litigation in state and federal courts;
(x) unique issues relating to those charged with capital offenses when under the age of 18; and
(xi) counsel’s relationship with the client and family.
(c) The Pennsylvania Continuing Legal Educatio n Board shall maintain and make available a list of attorneys who satisfy the educational requirements set forth in this rule.

234 Pa. Code ยง 801

Amended by Pennsylvania Bulletin, Vol 46, No. 05. January 30, 2016, effective 4/1/2016.

Committee Explanatory Reports:

Final Report explaining the April 13, 2007 changes to paragraph (1) (c) published with the Court’s Order at 37 Pa.B. 1961 (April 28, 2007) .

Final Report explaining the October 1, 2012 changes to the first paragraph published with the Court’s Order at 42 Pa.B. 6635 (October 20, 2012) .

Final Report explaining the December 10, 2013 change to the Comment published with the Court’s Order at 43 Pa.B. 7546 (December 28, 2013) .