In Re: Order Amending Rule 801 of the Pennsylvania Rules of Criminal Procedure

RULE 801. QUALIFICATIONS FOR DEFENSE COUNSEL IN CAPITAL CASES.

In all cases in which the [district] 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 Education Board shall maintain
and make available a list of attorneys who satisfy the educational
requirements set forth in this rule.

COMMENT: The purpose of this rule is to provide minimum
uniform statewide standards for the experience and
education of appointed and retained counsel in capital
cases, to thus ensure such counsel possess the ability,
knowledge, and experience to provide representation in the
most competent and professional manner possible. These
requirements apply to counsel at all stages of a capital case,
including pretrial, trial, post-conviction, and appellate.

The educational and experience requirements of the rule
may not be waived by the trial or appellate court. A court
may allow representation by an out-of-state attorney pro hac
vice, if satisfied the attorney has equivalent experience and
educational qualifications, and is a member in good standing
of the Bar of the attorney’s home jurisdiction. See Pa.B.A.R.
301.

For purposes of the requirements of paragraph (1),
experience in the role of either prosecutor or defense
counsel should be considered.

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An attorney may serve as “second chair” in a capital case
without meeting the educational or experience requirements
of this rule. “Second chair” attorneys may not have primary
responsibility for the presentation of significant evidence or
argument, but may present minor or perfunctory evidence or
argument, if deemed appropriate in the discretion of the
court. Service as a “second chair” in a homicide case will
count as a trial for purposes of evaluating that attorney’s
experience under paragraph (1)(c) of this rule.

Paragraph (1)(c) was amended in 2007 to clarify that (1)
cases that are tried to a verdict or that end with a mistrial
after the case is given to the jury for deliberations satisfy the
requirements of the rule, and (2) all cases charging felonies
for which the term of imprisonment is 10 or more years will
count as “significant cases,” see, e.g., Crimes Code, 18
Pa.C.S. § 106(b), and 35 P.S. § 780-113(f)(1).

The CLE Board may approve entire courses focusing on
capital litigation, or individual portions of other courses
dealing with general areas relevant to capital cases (such as
trial advocacy). It is expected that counsel will attend
training programs encompassing the full range of issues
confronting the capital litigator from the investigative and
pretrial stages through appellate and post-conviction
litigation in the state and federal courts.

Determination of experience will be accomplished by the
appointing or admitting court, by colloquy or otherwise.

For the entry of appearance and withdrawal of counsel
requirements generally, see Rule 120.

For the appointment of trial counsel, see Rule 122.

For the entry of appearance and appointment of counsel in
post-conviction collateral proceedings, see Rule 904.

NOTE: Adopted June 4, 2004, effective November 1, 2004;
amended April 13, 2007, effective immediately; amended
October 1, 2012, effective November 1, 2012; amended

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 December 10, 2013, effective February 10, 2014 [.] ;
amended January 11, 2016, effective April 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. 1960 (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. 7545
(December 28, 2013).

Final Report explaining the January 11, 2016 amendments
correcting a reference to the prosecutor and clarifying the
experiential requirements of the rule published with the Court’s
Order at 46 Pa.B. ( , 2016).

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