Ineffective assistance of counsel occurs when your lawyer does not represent you the way that is expected of a competent attorney.
If it is shown that your Colorado criminal defense attorney failed to represent you competently, your case could be overturned on appeal.
In this article, our Denver criminal defense lawyers will address the following key topics regarding ineffective assistance of counsel (IAC) in Colorado law:
- 1. Ineffective Assistance of Counsel
- 2. Types of IAC
- 3. Proving IAC
- 4. When to Claim IAC
- Additional Reading
Ineffective assistance of counsel occurs when a lawyer does not represent his or her client the way that is expected of a competent attorney.
1. Ineffective Assistance of Counsel
Ineffective assistance of counsel occurs when your lawyer does not represent you the way that is expected of a competent attorney.1
If your attorney’s performance is so flawed that you are deprived of your Sixth Amendment right to a fair trial, you may be granted a new lawyer or new trial.2
2. Types of IAC
Ineffective assistance of counsel can occur in a variety of ways. Your lawyer can fail to represent you competently by:
- failing to investigate your case properly;
- failing to prepare your case competently;
- failing to raise or argue appropriate motions;
- failing to object to evidence or witness testimony properly;
- failing to address concerns about prosecutorial misconduct or jury misconduct;
- failing to present evidence tending to show your innocence.
2.1 Failure to Properly Investigate a Case
Your lawyer fails to investigate your case properly by:
- not fully researching applicable law;
- not reading or analyzing the evidence; or
- not checking if the evidence fits the crime(s) charged.
This failure may prejudice your case, leading to an unjust conviction.3
2.2 Failure to Raise or Argue Appropriate Motions
When a competent lawyer would have raised a motion, but your lawyer failed to do so, it may rise to the level of ineffective assistance of counsel. These motions may include:
- motion to suppress evidence;
- motion to dismiss;
- motion for post-conviction relief;
- motion for bill of particulars;
- motion to reduce or modify bond;
- motion for change of venue;
- motion for mental examination of defendant; or
- motion to suppress prior convictions.
Many other motions may be appropriate to argue. Not every time a motion could have been raised means it should have, however.4
2.3 Failing to Object
When a witness or lawyer at trial does something that violates the criminal rules or the rules of evidence, your lawyer is supposed to object. Failure to do so may rise to the level of ineffective assistance.5
2.4 Failure to Object to Prosecutorial or Jury Misconduct
When a Colorado prosecutor or the jury engages in misconduct in your case, it constitutes a serious violation of your rights. In these types of cases, your lawyer should object to this conduct and do everything in their power to stop it.
When your lawyer fails to do so, it is likely ineffective assistance of counsel, and you should not have to be faced with the consequences of that failure.6
3. Proving IAC
To prove that your attorney’s counsel was ineffective, you must show that:
- your attorney’s performance was deficient; and
- the deficient performance prejudiced your defense.
Both of these have to be proven to win on this claim during an appeal.
What is deficient performance?
Deficient performance means that your lawyer’s representation fell below an objective standard of reasonableness. Lawyers are given a strong presumption that their conduct was effective, but this presumption can be overcome. 7
What is prejudice?
Prejudice means that there was a reasonable possibility that, if it were not for your lawyer’s unprofessional errors or mistakes, the result of your trial or proceeding would have been different.
This is a hard thing to prove in most cases, but with the help of an experienced criminal defense attorney, you can rest assured that your rights are protected.8
4. When to Claim AIC
A claim of ineffective assistance of counsel is usually raised during the appeal of your Colorado conviction.
A successful appeal may reverse the decision of the trial court, which may:
- cause your case to be retried at the trial court level; or
- have the charges against you dismissed.
It may also be raised:
- before trial with the judge, by asking for substitute counsel; or
- after a sentencing hearing but before appeal, possibly resulting in new sentencing.9
Additional Reading
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:
- See People v. Alexander (2005) 129 P.3d 1051. (The test for determining whether a defendant has received ineffective assistance of appellate counsel is the same as the test for ineffective assistance of trial counsel.). See also People v. Cole (1989) ; People v. Melendez (Colo.App. 2024) 549 P.3d 1028.
- See People v. Cole (1989) .
- Dunlap v. People (Colo. 2007) 173 P.3d 1054 (An unreasonable failure to conduct a mitigation investigation can constitute the grounds for ineffective assistance of counsel).
- People v. ex rel. A.G. (Colo. 2011) .
- See note 3.
- People v. Romero (1975) .
- See note 3 (For the performance prong, a defendant must prove that counsel’s representation “fell below an objective standard of reasonableness.” Strickland (1984) 466 U.S. at 688, 104 S.Ct. 2052. In conducting the reasonableness inquiry, a court must make “every effort … to eliminate the distorting effects of hindsight, to reconstruct the circumstances *1063 of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Id. at 689, 104 S.Ct. 2052. In addition, “a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.).
- Ardolino v. People. (Colo. 2003)
- A.R. v. D.R. (Colo. 2020) 456 P.3d 1266.