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;
2

(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. 
3

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 
4

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).