“Ineffective Assistance of Counsel” – The Law in California

In California, ineffective assistance of counsel is a claim asserted by a criminal defendant that their defense attorney failed to perform in a reasonably competent manner. This violates the right to effective counsel (and thus a fair trial) as guaranteed by the Sixth Amendment to the U.S. Constitution.

A successful claim of ineffective assistance of counsel can be the grounds to

• overturn a conviction and/or
• vacate a sentence.

The right to a competent lawyer is not limited to a criminal trial. Adequate legal performance is required in every critical stage of the criminal court process. Some of these stages include

• arraignments,
• plea bargaining/entries of plea,
• presenting motions,
• voir dire (jury selection)
• sentencing hearings, appeals, and
• post-conviction proceedings.

California law states that attorneys perform ineffectively if:

1. their performance was unreasonable under the circumstances, and
2. the performance prejudiced the defendant.

Examples of a lawyer’s incompetence can include their failure to:

• adequately investigate and prepare for a case,
• raise certain motions (like a motion to suppress evidence),
• object to improper testimony (like hearsay statements), and
• address concerns about potential prosecutorial misconduct or jury misconduct.

Our criminal defense attorneys will highlight the following in this article:

• 1. What is the test for ineffective assistance of counsel in California?
• 2. What is the remedy if the attorney is found to be ineffective?
• 3. Does ineffective assistance of counsel apply in civil cases?
• 4. What is the Strickland rule?
• Additional Resources

“Ineffective assistance of counsel” is when a criminal defense attorney fails to represent their client competently.

1. What is the test for ineffective assistance of counsel in California?

The Sixth Amendment guarantees criminal defendants the right to a fair trial. This right includes the right to the effective assistance of counsel. The law applies no matter if counsel was

• appointed by the court or
• retained by the defendant.

“Ineffective assistance of counsel” describes when a criminal lawyer does not act competently. This is a violation of the defendant’s rights, and it can lead to a conviction getting overturned.

In California, a defendant must prove the following to establish that their attorney was ineffective:

1. the lawyer’s performance fell below an objective standard of reasonableness, and
2. the attorney’s failure to act competently prejudiced the defendant.¹

Reasonableness

In determining reasonableness, California courts will consider things like:

• any ethical duties imposed on the attorney,
• court rules,
• legal strategies that the lawyer used or adopted,
• the behavior and education of the defendant, and
• available evidence.²

In applying this standard, judges rarely second-guess a lawyer’s judgment.³ Further, courts are hesitant in questioning a lawyer’s tactical decisions unless:

1. there is an obvious indiscretion,
2. the attorney cannot explain their conduct, or
3. the defense lawyer cannot offer a satisfactory explanation for their actions.⁴

Prejudicial

Prejudice is shown when there is:

• a reasonable probability that, but for counsel’s errors,
• the result of the proceeding would have been different.⁵

Like reasonableness, California courts will determine “prejudice” by looking at all of the circumstances in a case.⁶

Fairness and examples

Note that the test for ineffectiveness is based upon weighing the facts of every case. As a result, California courts do not impose mechanical rules to determine ineffectiveness.

For this reason, they focus on the fundamental fairness of the ultimate conclusion.⁷

Also note that in evaluating these cases, the court does not:

1. address a case in any particular order, or
2. even conduct both parts of the test if the accused has not shown evidence of each.⁸

Real case examples of ineffective assistance of counsel

• the defense attorney failed to challenge the photographic identification of the accused,⁹
• the defense lawyer failed to file an appeal in a juvenile proceeding,¹⁰
• defense counsel did not object to testimony regarding evidence obtained via an illegal search and seizure,¹¹ and
• counsel failing to file an appeal, even when the accused signed an appeal waiver.¹²

Real case examples where there was no finding of ineffective assistance of counsel

• defense counsel and the defendant disagreed on trial tactics and strategy,¹³
• counsel being intoxicated through trial,¹⁴
• defense attorney being mentally ill during the trial,¹⁵
• defense counsel failed to impeach a witness with his prior statements,¹⁶ and
• defense counsel put on a witness who gave testimony damaging to the accused.¹⁷

Other examples that may qualify as ineffective assistance of counsel

• not explaining to an immigrant defendant the consequences of taking – or rejecting – a plea
• having a conflict an interest¹⁸
• omitting a jury instruction on a potential viable defense
• failing to get an expert witness to study incriminating photographs
• failing to request DNA testing in a murder case
• failing to do sufficient legal research, leading to a failure to file vital motions
• failing to object to a recording of the defendant giving incriminating testimony without an attorney present (called a “Massiah claim”).¹⁹

Note that when California courts determine whether an attorney displayed ineffective assistance, they are “highly deferential” to the attorney. Aggrieved defendants must demonstrate that the lawyer’s representation fell below an objective standard of reasonableness under prevailing professional norms.²⁰

An attorney’s acts or omissions must be prejudicial to qualify as ineffective assistance of counsel.

2. What is the remedy if the attorney is found to be ineffective?

In California, a defendant brings a Marsden motion when they want to fire their court-appointed attorney on the grounds of ineffectiveness. The court considers and rules on the motion at a Marsden Hearing.

The motion can be filed in either misdemeanor or felony cases, before or during trial. Defendants typically ask:

• that a new private attorney substitute in or
• for the judge to appoint a new deputy public defender.²¹

If the court approves a new attorney, they may request a new trial depending on the facts of the case.

If a finding of ineffectiveness comes after a trial, and the defendant was found guilty, then:

1. the court may reverse the guilty verdict, and
2. order a new trial.

If ineffectiveness occurs during sentencing, then the court will:

1. vacate the sentence, and
2. resentence the defendant.

3. Does ineffective assistance of counsel apply in civil cases?

The right to competent representation only applies in the context of a criminal case, not a civil case. The right also only attaches to a defendant.

Similarly, a defendant in a criminal case has the right to be represented by a lawyer.²² However, this right does not extend to parties in civil matters.

The remedy in a civil case would most likely be to bring a legal malpractice claim against a lawyer who performs incompetently.

4. What is the Strickland rule?

The “Strickland rule” is another term for the two-part test that decides whether a counsel is ineffective:

1. the lawyer’s performance was unreasonable under the circumstances, and
2. the accused was prejudiced by this performance.

The rule is labeled “Strickland” because it was established in the Supreme Court case Strickland v. Washington.

At the time of the decision, the Strickland case helped form a compromise between:

1. the varying tests used by federal courts to decide if a lawyer was competent, and
2. the different tests used by state supreme courts.

As discussed above, California adopted a largely identical version of the Strickland rule by its own choosing.²³

Additional Resources

For more in-depth information, refer to these scholarly articles:

• Embracing a New Era of Ineffective Assistance of Counsel – University of Pennsylvania Journal of Constitutional Law.
• The Ineffective Assistance of Counsel Era – South Carolina Law Review.
• Exonerations Change Judicial Views on Ineffective Assistance of Counsel – Criminal Justice.
• Ineffective Assistance of Counsel: A Call for a Stricter Test in Civil Commitments – Journal of the Legal Profession.
• The United States Supreme Court (Mostly) Gives up Its Review Role with Ineffective Assistance of Counsel Cases – Minnesota Law Review.

Legal References: