Ineffective Assistance of Counsel
Under the Sixth Amendment, every criminal defendant has the right to an attorney and a fair trial.
This means that the defendant has the right to hire a private defense attorney of their choosing, and if they lack the funds to hire one, a public defender will be appointed for them by the court.
The defendant’s lawyer is expected to do everything in their power to create a competent defense for their client during their trial. They are also expected to be present for every critical stage of their defendant’s criminal court process, including:
- Interrogations and questionings
- Preliminary hearings
- Plea Bargaining
- Presenting Motions
- Arraignment
- Post-conviction proceedings
If a defendant feels that their defense attorney did not represent them in a reasonably adequate manner. This violates their Six Amendment right to effective counsel, hence allowing them to claim ineffective assistance of counsel. If a defendant can successfully prove ineffective assistance of counsel claim. This can enable them to reverse a conviction or vacate a sentence.
However, you should note that the right to claim ineffective assistance of counsel only applies to criminal cases. This is because the right of competent representation only applies to criminal cases. Therefore, the ineffective assistance claim does not extend to civil cases. Therefore, if a defendant in a criminal case considers their representation incompetent. They can simply fire their attorney and can choose to file a malpractice claim.
How Can a Defendant Prove Ineffective Assistance of Counsel?
Since courts usually start with the assumption that the defense attorney was effective, it falls on the defendant to prove whether their representation was incompetent.
No lawyer is perfect, after all, they are only human. Even the greatest of lawyers, at one point or another, are bound to make a mistake, most of which are usually harmless and will rarely have any effect on the defendant’s case. For this reason, courts can grant ineffective assistance of counsel claims to every defendant who declares their lawyer made a bad call. Therefore, to create a more straightforward and fair way for judges to determine whether a defense attorney was incompetent or not. The Supreme Court established a test known as the Strickland test to help prove whether a defense attorney was competent or not.
This test was established during the Stickland v. Washington case in 1984, where the defendant tried to reverse their death sentence by claiming they had incompetent representation. The standards used in the Strickland vs. Washington case to decide if the defendant’s attorney was competent have since then been used to provide a framework to prove whether counsel was effective or not.
Thus, based on the Strickland test, a defendant has to prove two things to establish that their defense attorney was ineffective. They must show that:
Their counsel’s representation was below reasonable based on the circumstances. This means that the defendant must prove that their lawyer made a serious mistake, did something, or made an omission that would be considered deficit based on reasonable standards upheld by professional lawyers, and the attorney cannot adequately explain their actions.
Their attorney’s mistakes prejudiced the case against the defendant. This means that the defendant has to prove that there is a reasonable probability that the lawyer’s failures greatly affected the outcome of the case.
You should know that when trying to decide whether the attorney was actually effective or not. The court usually tries to weigh every fact of the case and focus on fundamental fairness rather than inflict a set of mechanical rules. Here are a couple examples of ineffective counsel:
- Failure to challenge inadmissible evidence
- Failure to challenge mistakes in a presentence report
- Failure to file motions on time
What Happens if Counsel is Proven Ineffective?
If the defendant successfully proves that their lawyer was incompetent, what happens after will depend on what level the criminal process was in.
If the attorney is proven ineffective when the criminal case is still ongoing. The defendant can request a new defense counsel to represent their case. Plus, depending on the conditions of the case, their new representation can request a new trial.
If the incompetence was proven after the defendant’s trial and they got a guilty conviction. The court may choose to reverse the guilty verdict and grant the defendant a new trial. If it occurred during sentencing, the court may vacate the sentence and give the defendant a new sentence.
Therefore, if you are a defendant who feels that you are facing incompetent representation. We highly advise you to exercise your rights and claim ineffective assistance of counsel, allowing you to get your conviction overturned or at least give you grounds for an appeal.
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Seppi Esfandi is an Expert Criminal Defense Attorney who has over 21 years of practice defending a variety of criminal cases.
