Shifting the Burden: Presuming Prejudice for Failing to Contact an Alibi Witness.

Date22 June 2021
AuthorAsad, Aziza

"The right to counsel plays a crucial role in the adversarial system embodied in the Sixth Amendment, since access to counsel's skill and knowledge is necessary to accord defendants the 'ample opportunity to meet the case of the prosecution' to 'which they are entitled." (1)


    The U.S. Constitution affords criminal defendants the right to representation by counsel at every critical stage of the proceedings against them. (2) The Sixth Amendment provides:

    [T]he right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence. (3) The Due Process Clause also grants defendants the right to effective assistance of counsel. (4) Throughout the course of client representation, "[a] lawyer shall act with reasonable diligence and promptness." (5)

    To ensure due process, a court must do more than merely appoint counsel to represent a defendant--that representation must also be effective. (6) In cases where ineffective assistance of counsel has occurred, the defendant may have grounds to seek an entirely new trial. (7) To establish that they received ineffective assistance of counsel, the defendant must show that their counsel's performance was deficient and that the deficient performance prejudiced them. (8)

    One important aspect of an effective criminal defense is an alternate theory of events, which defense attorneys often present to the factfinder through an alibi witness. (9) An alibi demonstrates that the defendant was somewhere else at the time the crime was committed, forcing the prosecution to present evidence to overcome this theory. (10) An alibi witness is a tool defense counsel can use to illuminate reasonable doubt in the prosecution's case. (11) Failing to contact an alibi witness can be grounds for a defendant's successful ineffective assistance of counsel claim. (12)

    This Note will analyze the difficulty defendants face to win ineffective assistance of counsel claims for failure to contact an alibi witness. (13) Part II of this Note will explain the history of criminal defendants' due process rights, including the right to counsel, and how courts have interpreted the right to counsel and ineffective assistance of counsel claims. (14) Part II will also discuss the significance of alibi witnesses, particularly how the failure to contact an alibi witness can support a claim of ineffective assistance of counsel. (15) This Note will then analyze the steep burden defendants must satisfy to show they faced prejudice and argue that failure to contact an alibi witness should amount to a constructive denial of counsel that creates a presumption of prejudice and shifts the burden to the prosecution to rebut that presumption. (16) This Note concludes that the defendant's burden of proving prejudice, as it stands, is too onerous because proving that an uncontacted alibi witness would have changed the outcome at trial is extremely difficult, and creating a presumption of prejudice would appropriately temper this high bar and ensure that defendants receive their constitutionally-protected right to effective assistance of counsel. (17)


    1. Due Process

      The concept of due process of law is deeply rooted in American history and guaranteed under the Fifth and Fourteenth Amendments. (18) Defendants receive due process when the criminal justice system honors their rights under the Sixth Amendment. (19) While the Sixth Amendment once applied exclusively to federal cases, the Supreme Court has interpreted the Fourteenth Amendment to incorporate almost all of its guarantees and make them applicable to the states. (20)

      The right to a public trial, the right to know the nature and basis of the accusations, and the right to confront the witnesses against them--all rights guaranteed under the Sixth Amendment--help ensure due process for the defendant. (21) The Due Process Clause has always applied to defendants in both criminal and civil trials, although it does not apply to each area in the same way. (22) Because the Sixth Amendment explicitly provides for the right to counsel, due process has become a standard basis for ineffective assistance of counsel claims. (23)

    2. Right to Counsel

      According to the Sixth Amendment and subsequent interpretations, a person facing criminal charges with the potential for imprisonment as a penalty has the right to have counsel represent them in both state and federal cases. (24) The "right to counsel" means a defendant has the right to hire private counsel at their own expense or to have the court appoint counsel free of charge if they are indigent. (25) This right carries through automatic appeals, where courts must honor an indigent person's request for counsel regardless of the court's judgment of the merits of the appeal. (26) Nevertheless, this right does not extend to discretionary appeals--where the court has discretion to review a decision or deny review--because they are not considered critical stages of the proceedings against the defendant. (27) The defendant also has the right to counsel during the sentencing phase of a trial. (28) The attorney ultimately hired or appointed can result in major differences in trial strategy, potentially leading to divergent outcomes for a defendant. (29)

      Although British common law did not afford citizens the right to counsel in felony cases, it was a significant part of American principles of criminal justice by the time the Constitution was ratified. (30) The right to counsel was included in the Bill of Rights. (31) In Powell v. Alabama, the Supreme Court held that the right to counsel is a fundamental constitutional right. (32) The Court explained that the right to counsel is important for uneducated and highly-educated people alike because most laypeople have a limited understanding of the law and how it operates. (33) Without counsel, a defendant may face a trial even though the prosecution lacks proper evidence to support conviction. (34) A defendant may be convicted not because of their guilt, but because they did not know how to properly present evidence of their innocence. (35)

      The constitutional right to counsel is not absolute, and there are some criminal proceedings where a defendant is not entitled to an attorney. (36) The Supreme Court has recognized a major difference between a trial and an appeal; thus, a defendant has different rights during each. (37) A defendant is not entitled to counsel during discretionary appeals because the Constitution simply requires the State to afford the convicted an opportunity to fairly present their claims when challenging their conviction, not to provide the same defense that a private attorney could offer. (38) The lack of a right to counsel in these circumstances has important implications: With no right to counsel, an indigent defendant cannot appeal a conviction on the grounds of ineffective assistance of counsel. (39) Consequently, even if a defendant's counsel represents them ineffectively, the defendant has no remedy because their representation on appeal is not always guaranteed by the Sixth Amendment's right to counsel. (40)

      While the right to counsel includes the right to have that counsel be competent, there is no guarantee that counsel will actually perform competently and effectively. (41) Historically, in cases where defense counsel's incompetence was an issue, courts based the availability of relief on whether the defendant or the government should bear the risk of counsel performing incompetently. (42) Today, in ineffective assistance of counsel claims, it is necessary to establish prejudice to the defendant as a result of their counsel's incompetence. (43) Prejudice exists when there is a reasonable probability that the outcome of the trial would have been different if the defendant had competent counsel. (44) Allowing defendants to assert an ineffective assistance of counsel claim without a showing of prejudice would simply give defendants a "second bite at the apple"--allowing defendants a chance at a second trial without having shown their counsel's incompetence unfairly affected their original trial. (45) A defendant who is unable to show prejudice is not entitled to any remedy, even when their rights have technically been infringed. (46)

    3. Ineffective Assistance of Counsel

      The Supreme Court has held that "[t]he right to the effective assistance of counsel at trial is a bedrock principle in our justice system." (47) In the landmark case Strickland v. Washington, the Court set out the framework for determining whether a defendant should receive a new trial because of their ineffective assistance of counsel. (48) Reviewing ineffective assistance of counsel claims requires appellate courts to make determinations of fact and of law. (49) Normally, appellate courts are bound by the trial court's findings of fact, but courts reviewing ineffective assistance of counsel claims are not. (50)

      Strickland requires that defendant's counsel performed deficiently and that the deficiency prejudiced the defendant. (51) This two-part test places the burden on the defendant to prove both prongs; a court need not analyze both prongs if the defendant fails to prove either one. (52) The purpose of this framework is to guide the court's analysis rather than create a bright-line rule, because the court's primary focus is to determine whether the proceeding was reliable. (53)

      Strickland established the proper standard to assess a defendant's ineffective assistance of counsel claim. (54) According to the Strickland Court, "[t]he purpose of the Sixth Amendment guarantee of counsel is to ensure that a defendant has the assistance...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT