Supreme Court Sets New Standards for Counsel in Capital Criminal Cases

On June 4, 2004, the Supreme Court adopted a new rule setting standards for experience and continuing legal education required of all criminal defense counsel representing defendants in proceedings involving possible capital punishment.

The Court adopted new Rule 801 to the Pennsylvania Rules of Criminal Procedure. This rule applies to all cases in which the district attorney has filed a Notice of Aggravating Circumstances pursuant to Rule 802 (formerly Rule 801), which means that the prosecution may seek the death penalty. Before an attorney may participate in a capital case either as retained or appointed counsel, he or she must meet several qualifying standards, including:

  • At least five years of experience in criminal litigation.
  • Service as lead or co-counsel in a minimum of 8 significant cases which were tried to verdict before a jury. Representation in appellate proceedings requires prior appellate or post-conviction representation in a minimum of 8 significant cases. A “significant case” for purposes of this rule shall be a murder, including manslaughter and vehicular homicide, or a felony of the first or second degree.
  • Within the preceding three years, a minimum of 18 hours
    of training relevant to representation in capital cases, as approved by the Pennsylvania Continuing Legal Education Board.

These requirements apply to counsel at all stages of a capital case, including pretrial, trial, post-conviction, and appellate. A court may allow out-of-state counsel to serve pro hac vice if the court finds that the out-of-state attorney has equivalent experience and qualifications.

The restrictions apply only to "first chair" counsel with primary responsibility for the case. Attorneys who do not meet the qualifications may serve as "second chair," and may present "minor or perfunctory evidence or argument," as determined by the court, but cannot have significant responsibility for presentation of significant evidence or argument.

New Rule 801 was published in the Pennsylvania Bulletin on June 19, 2004becomes effective November 1, 2004. The text of the new rule is available online here (beginning at Page 33). The order adopting the rule appears here. The Order sets a schedule for continuing legal education which attorneys must meet in order to qualify as capital defense counsel. Several of the Rules of Criminal Procedure are also renumbered or amended to reflect the new rule.