6.3.4 Ineffective Assistance of Counsel

• Library: Criminal Procedure in Practice (ABA) (2018 Ed.)

6.3.4 Ineffective Assistance of Counsel

The Sixth Amendment would essentially be nullified if it did not ensure some level of quality of counsel. The right to counsel has been interpreted to stand for the effective assistance of counsel. The question here is whether "counsel's representation fell below an objective standard of reasonableness" and altered the result at trial.⁸⁷ The two-pronged test requires a showing that the trial lawyer's performance was deficient⁸⁸ and that the "errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable."⁸⁹

A claim of ineffective assistance of counsel typically can be demonstrated only by pointing to specific errors of trial counsel. It cannot be based on an inference drawn from the trial counsel's inexperience, lack of time to prepare, gravity of the charges, complexity of the defenses, or accessibility of witnesses to counsel.⁹⁰ The particular errors must be evaluated before Sixth Amendment violations will be found. Still, the trial record is to be scrutinized carefully. As the Supreme Court has written, "While a criminal trial is not a game in which the participants are expected to enter the ring with a near match in skills, neither is it a sacrifice of unarmed prisoners to gladiators."⁹¹

The courts have generally been loath to find incompetent counsel, as explained later in this chapter.⁹² Moreover, not all situations where defense counsel acted improperly will result in reversal.

Technique

In trying any case, difficult decisions must be made, often in a very short time frame. If there is the possibility of future questions as to why a particular witness was not called, whether the defendant should have testified, or why some other tactical decision was made, document the process used to reach the decision. Prepare a memo to the file as soon as possible outlining what factors were considered, who was present for the discussion, what options were considered, and why the decision was reached. The defendant must "affirmatively prove prejudice,"⁹³ a difficult task.⁹⁴ If such a showing can be made, however, the rule is applicable to ineffective assistance challenges for both appointed counsel and retained counsel.⁹⁵ But there is no ineffective assistance challenge to a conviction in instances where there is no right to counsel. For instance, an attorney's broken promise to file an appeal will not support an ineffective assistance claim where the appeal is discretionary.⁹⁶

Tactic

Ineffective assistance of counsel claims rarely can be raised on direct appeal because a record is needed to review the claim...