Ineffective Assistance of Counsel – Meaning, Determination and Remedies

Ineffective assistance of counsel is a claim asserted by a criminal defendant that his or her 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.

The 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 his/her 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.

There are three remedies if a court finds that a counsel was ineffective. Depending on when the ineffectiveness occurs in a case, a court may:

1. appoint a new defense counsel,
2. if a trial concluded, reverse any guilty verdict and order a new trial, or
3. vacate a sentence and resentence the defendant.

Note that the right to competent representation only applies in criminal cases. The right does not extend to defendants in civil matters.

California’s laws on ineffective assistance of counsel follow the two-part test stated above.

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

• 1. What is the test for ineffective assistance of counsel?
  • 1.1. Reasonableness
  • 1.2. Prejudicial
  • 1.3. Fairness and examples
• 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?
• 5. What is the law in California?

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

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” is a term used to describe 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.

A defendant must prove the following to establish that his/her attorney was ineffective:

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

1.1. Reasonableness

The first question in determining ineffectiveness is to decide if the lawyer performed reasonably. Note that “reasonable” does not mean that the lawyer did a perfect job.

A lawyer performs reasonably if he/she was reasonably effective considering all the applicable circumstances. In determining reasonableness, 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. They most often presume that an attorney’s conduct was reasonable.³

Further, courts are hesitant in questioning a lawyer’s tactical decisions unless:

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

1.2. Prejudicial

The next test is to decide if the lawyer’s ineffectiveness prejudiced the defendant.

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

1.3. Fairness and examples

Note that the test for ineffectiveness is based upon weighing the facts of every case. As a result, 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 are:

• defense counsel not objecting to the use of the defendant’s incriminating statement,⁹
• defense lawyer not objecting to errors in a presentence report,¹⁰
• defense attorney failing to object to the excessive length of the defendant’s sentence,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 are:

• defense attorney falling asleep during the prosecutor’s cross-examination of the defendant,¹³
• counsel being intoxicated through trial,¹⁴
• defense attorney being mentally ill during the trial,¹⁵ and
• defense counsel representing a client while also being a convicted felon.¹⁶

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

There are three remedies if a court finds that a counsel was ineffective.

If a case is pending, the defendant can request a new defense counsel. The court may then approve one. Depending on the facts of the case, the new attorney may request a new trial.

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?

Ineffective assistance of counsel does not apply in civil cases. The right to competent representation only applies in the context of a criminal case. The right also only attaches to a defendant.

Note that this is similar to a person’s right to an attorney. A defendant in a criminal case has the right to be represented by a lawyer.¹⁷ However, this right does not extend to parties in civil matters.

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

4. What is the Strickland rule?

The “Strickland rule” is another term for the two-part test outlined above. The rule refers to the test that decides whether a counsel is ineffective.

The rule gets the label “Strickland” because it was established in a Supreme Court case. That case was 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.

Note that state courts are free to adopt a slightly different version of the Strickland rule by their own choosing.

5. What is the law in California?

In California, a defendant in the State must prove the following to show that his/her counsel was ineffective:

1. the attorney’s performance fell below an objective standard of reasonableness, and
2. the attorney’s failure to act competently prejudiced the defendant.¹⁸

The following are examples of when a California court denied an ineffectiveness claim:

• defense counsel and the defendant disagreed on trial tactics and strategy,¹⁹
• defense counsel failed to impeach a witness with his prior statements,²⁰ and
• defense counsel put on a witness who gave testimony damaging to the accused.²¹

The following are examples of when a California court upheld an ineffectiveness claim:

• the defense attorney failed to challenge the photographic identification of the accused,²²
• the defense lawyer failed to file an appeal in a juvenile proceeding,²³ and
• defense counsel did not object to testimony regarding evidence obtained via an illegal search and seizure.²⁴

Other examples that may qualify as ineffective assistance include:

• not explaining to an immigrant defendant the consequences of taking – or rejecting – a plea
• having a conflict an interest²⁵
• 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”).²⁶

Note that when 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.²⁷

5.1 Marsden motions

Note that in California, a defendant brings a Marsden motion when he/she:

1. wants to fire his/her court-appointed attorney, and
2. wishes to do so on the grounds of ineffectiveness.

The court considers and rules on the motion at a Marsden Hearing. The name of the motion comes from a real California court case, People v. Marsden.

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.²⁸

For additional help…

For additional guidance or to discuss your case with a criminal defense attorney, we invite you to contact us at Shouse Law Group.

Please see our following articles for ineffective assistance of counsel claims in Nevada and Colorado:

• “What is ineffective assistance of counsel in Las Vegas, Nevada?” and
• “Ineffective Assistance of Counsel in Colorado Criminal Cases.”

Also see our article on federal criminal appeals, including petitions for a writ of certiorari.

Legal References: