Ineffective assistance of counsel occurs when a lawyer does not represent his or her client the way that is expected of a competent attorney.
If it is shown that a Colorado criminal defense attorney failed to represent his or her client competently, the case could be overturned on appeal.
What Ineffective Assistance of Counsel Looks Like
Ineffective assistance of counsel can occur in a variety of ways. A lawyer can fail to represent a client competently by:
- failing to investigate a case properly;
- failing to prepare a 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 the client’s innocence.
Definition of Ineffective Assistance under Colorado Law
For a defendant to prove that his or her attorney’s counsel was ineffective, the defendant must show that:
- the attorney’s performance was deficient; and
- the deficient performance prejudiced the defense.
Both of these have to be proven to win on this claim during appeal.
Deficient performance means that the 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.
Prejudice means that there was a reasonable possibility that, if it was not for the lawyer’s unprofessional errors or mistakes, the result of the trial or proceeding would have been different.
When Do I Argue my Defense?
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 a new sentencing.
Below, our Colorado criminal defense lawyers discuss the following frequently asked questions about the ineffective assistance of counsel for Colorado residents:
- 1. What is ineffective assistance of counsel?
- 2. What type of conduct constitutes ineffective assistance of counsel?
- 3. What do I have to prove for ineffective assistance?
- 4. When can I argue ineffective assistance of counsel?
- 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. What is ineffective assistance of counsel?
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
If an attorney’s performance is so flawed that the defendant is deprived of his or her Sixth Amendment right to a fair trial, the defendant may be granted a new lawyer or new trial.2
2. What type of conduct constitutes ineffective assistance of counsel?
Ineffective assistance of counsel can occur in a variety of ways. A lawyer can fail to represent a client competently by:
- failing to investigate a case properly;
- failing to prepare a 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 the client’s innocence.
2.1 Failure to Properly Investigate a Case
A lawyer fails to investigate a 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 the defendant’s case, causing him or her to be convicted when the defendant should not be.3
2.2 Failure to Raise or Argue Appropriate Motions
When a competent lawyer would have raised a motion, but this lawyer failed to do so, it may rise to the level of ineffective assistance of counsel. This 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.
There are many other motions that 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, the 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 engages in misconduct, or the jury does, that is a serious violation of a defendant’s rights. In these types of cases, a lawyer should object to this conduct and do everything in his or her power to stop it.
When a 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. What do I have to prove for ineffective assistance?
For a defendant to prove that his or her attorney’s counsel was ineffective, the defendant must show that:
- the attorney’s performance was deficient; and
- the deficient performance prejudiced the defense.
Both of these have to be proven to win on this claim during an appeal.
What is deficient performance?
Deficient performance means that the 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 the lawyer’s unprofessional errors or mistakes, the result of the 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 can I argue ineffective assistance of counsel?
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.