On The U.S. Doctrine Of Effective Assistance Of Counsel

In order to protect the legitimate rights and interests of the accused, in addition to setting some safeguards the rights of the criminal defense system to ensure that the rights of the accused can be achieved, the United States also established the effective assistance of counsel, thus providing procedural relief for the defendant. Given that the US has effective assistance of counsel to promote a fair trial, protect the legitimate rights and interests of the accused, I believe that in order to alleviate the reality of China's inadequate protection of the rights of the defendant, it is necessary to study the effective assistance of counsel. Besides preface and epilogue, this paper is divided into four parts, aims to illustrate the content of the effective assistance of counsel, the operational procedure and in view of the situation of our country, draw lessons from them. The main contents of this paper are as follows:The first part is the concept of the effective assistance of counsel. The effective assistance of counsel is a uniquely American institution, as a legal concept the connotation of the effective assistance of counsel is different from Europe and the effective assistance of counsel of our country. Therefore, to clarify the concept of the effective assistance of counsel and the content, the constituent elements of the effective assistance of counsel, and introduce the value of the effective assistance of counsel, so as to develop the effective assistance of counsel set forth below evaluation criteria, provide evidence supporting evolution.The second part is the legitimacy foundation of the effective assistance of counsel. Firstly, in the aspect of legal foundation, the due process clause and the Sixth Amendment provides constitutional basis to the effective assistance of counsel; Secondly, in terms of institutional basis, the effective assistance of counsel based on the adversary system of justice; Thirdly, in terms of realistic foundation, the expansion of the scope of the case, the quality of the public defenders and the Supreme Court to limit the use of habeas corpus and other judicial practice are inseparable.The third part is the basic content of the effective assistance of counsel. The effective assistance of counsel evaluation criteria is the most core part of effective assistance of counsel. The evaluation criteria of the effective assistance of counsel evolved from "farce" standard for "reasonable diligence" standard, finally the Supreme Court in Strickland case established a unified "double standards". After the determined of the evaluation criteria of effective assistance of counsel, the defendant can seek for procedural relief- lawsuits to remedy their own legal rights for failing to get the lawyer's effective help, this part also introduces in detail the specific procedural relief ways, and the burden of proof in the lawsuit and the court applicable on the situationThe fourth part is the basic position of the author to draw lessons from the effective assistance of counsel of the United States. According to the existing judicial system and judicial practice in our country, transplant the effective assistance of counsel of American is not good way to solve our real dilemma; the reference to the effective assistance of counsel against the United States shall be basis for the judicial status quo of China. However, in face of the low level of the defense lawyers, the relative lack of prosecution of human rights protection, and therefore lead to the situation that occurs when injustice, the introduction of the concept of effective assistance of counsel against the United States is necessary. Therefore, in the reference, it must be based on China's national conditions, in order to effectively defend philosophy as a guide, in line with our established judicial practice uniform minimum standards of defense, and to provide the defendant procedural remedies when the lawyer does not meet this standard.