The Construction of the Ineffective Assistance of Counsel Standard and Remedy

• Main Authors: Yu, Tien-Kai, 余天愷
• Other Authors: Chin, Mong-Hua
• Format: Others
• Language: zh-TW
• Published: 2018
• Online Access: http://ndltd.ncl.edu.tw/handle/s29b9c

碩士 === 國立交通大學 === 科技法律研究所 === 106 === The due process doctrine relies heavily on the idea that substantive rights guaranteed by the Constitution are safeguarded through procedural justice. As the playing field is leveled and rules are complied with, a fair trial is secured. That is the purpose of Criminal Procedure. It follows that the right to defense of a criminal defendant, facing prosecution, must be ensured in order to maintain equality before the law; in this way, the outcome of a judgment can, therefore, be considered fair, just, and valid to observers. Although the State is obliged to appoint lawyers to an indigent defendant, the assistance provided to him must be effective so that his constitutional rights will not be deprived. This thesis explains how the U.S. Supreme Court incorporated the right to counsel through the Due Process Clause, and how the Court interpreted the nature of ineffective assistance of counsel (IAC) with the two-pronged standard it established. Recently, the Judiciary of Taiwan has not only recognized the right to adequate assistance, but also has endeavored to set forth a test to scrutinize IAC claims. Therefore, this thesis also provides evidence, through case analysis, to support the Taiwan Supreme Court’s interpretations of the right to effective assistance of counsel. However, this thesis argues that, while the Taiwan Supreme Court adopted a Strickland-like test, it did not always review IAC claims on a case-by-case basis, thus creating a “checklist” as the standard for IAC. Furthermore, rights come with remedies. This thesis additionally conducts a comparative study on IAC remedies between the United States and Taiwan. Evidence will be presented showing that the structural problems, including the scrutiny standard itself, render a defendant’s claim less viable. Finally, both lower courts and reviewing courts should focus on the fairness of the whole proceeding. This thesis thus proffers that incompetent attorneys should be screened out by courts before criminal proceedings commence, especially those cases requiring expertise in the use of psychiatric and forensic evidence. Also, by adding limited evidence during the appeal process as well as having a different lawyer at the appellate level from the one at the trial level, it provides a possibly feasible solution to the barriers hidden in the current Criminal Procedure.