“Ineffective Assistance of Counsel” – The Law in Nevada

Below our Las Vegas criminal defense attorneys discuss:

• 1. What is IAC?
• 2. Proving IAC
• 3. When can I claim it?
• 4. How To Bring a Claim
• 5. Is IAC ever presumed?
• 6. What if I win?
• 7. Can I waive IAC claims?
• Additional Reading

For information on other methods for challenging convictions and sentences, read our article about post-conviction relief in Nevada.

1. What is IAC?

The Sixth Amendment to the US Constitution guarantees criminal defendants the right to competent and reasonable “assistance of counsel.”¹ If your defense lawyer is ineffective to the point where you are denied your constitutional rights, you can ask the court to reverse your conviction.²

Note that claiming ineffective assistance of counsel will not necessarily help you every time:

• you get convicted, or
• your lawyer makes a minor mistake, or
• you disagreed with your attorney’s tactical choices.

Instead, IAC applies to situations where your defense attorney’s errors were so grave that they deprived you of fair and just case proceedings.

2. Proving IAC

To win a claim for ineffective assistance of counsel in Nevada, you must prove two things:

1. Your attorney’s performance fell below an objective standard of reasonableness, and
2. Your attorney’s performance gives rise to a reasonable probability that if counsel had performed adequately, the result would have been different.³

These “elements” are discussed below.

Your Attorney’s Performance Was Deficient

Courts begin by presuming that a defense attorney acted competently, so the burden is on you to prove that your attorney’s actions were subpar. In general, a Nevada court will consider that a defense attorney was competent if their actions were reasonable and within professional standards.

Every case is different, but examples of “deficient performance” could be the following:

• Your defense attorney did not adequately investigate the available evidence, such as neglecting to find an alibi that any competent attorney would have discovered; or
• Your defense attorney failed to inform you that the prosecutors proposed a plea bargain; or
• Your defense attorney misinformed you about the applicable laws and possible penalties in the case.

Note that it is not considered deficient performance if your defense attorney refuses your wishes to raise a frivolous argument.⁴

You Were Prejudiced by Your Attorney’s Performance

The second prong to prevailing on an ineffective assistance of counsel claim is showing that there is a reasonable probability that your court proceedings would have ended differently but for your defense attorney’s deficient performance. In other words, your attorney’s incompetence caused “actual prejudice.”⁵

Examples of errors that would reasonably make a trial (or other legal proceeding such as a plea bargain or sentencing) unfair are the following:

• Your attorney failed to file a motion to suppress evidence that the police obtained from your home without a search warrant.
• Your attorney failed to tell you about an available plea bargain, and after trial you ended up getting a prison sentence that is significantly longer than the one in the plea bargain.
• Your attorney failed to present a defense (such as insanity or self-defense), and there is ample evidence to support that defense.
• Your attorney did not adequately advise you about the risks of testifying on your own behalf at trial, and the testimony left you vulnerable to a vicious cross-examination.

Therefore, the bar for proving ineffective assistance of counsel is very high in Nevada. Your attorney had to make a significant error in judgment that likely affected the outcome of the case.

3. When can I claim it?

Typically, you make a claim of “ineffective assistance of counsel” after:

• you have been convicted, and/or
• you were sentenced, and/or
• the conviction was affirmed on appeal.⁶

4. How To Bring a Claim

In general, you can claim “ineffective assistance” of counsel either when making a:

• motion to withdraw a plea,
• motion for a new trial, or
• writ of habeas corpus.

As discussed below, each of these legal methods has different processes in Nevada, time frames and possible filing fees.

A Motion to Withdraw a Plea

A motion to withdraw a plea is when you want to back out of a plea agreement and go forward with the trial or a different plea. You must make a plea

• knowingly,
• voluntarily, and
• intelligently

for a plea to be valid.⁷ Therefore, a claim for ineffective assistance of counsel could allege that:

• your defense attorney did not fully advise you of the consequences of the plea and your other options, and
• this caused you to take a deal that you otherwise would not have.⁸

A Motion for a New Trial

Like it sounds, a motion for a new trial is when you were convicted at trial, and you ask the court for a redo.

Ineffective assistance of counsel is just one of many grounds that you may claim when asking the court for a new trial. Others include:

• newly discovered evidence,
• judicial misconduct,
• jury misconduct, and
• prosecutorial misconduct.

Note that judges very rarely grant motions for new trial.⁹

Writ of Habeas Corpus

You typically file a writ of habeas corpus when you have exhausted all other legal avenues to challenge your conviction. A writ of habeas corpus asks that the court hold a hearing to establish whether there is a legal basis to continue incarcerating you.

As with motions for a new trial, ineffective assistance of counsel is just one of many grounds you can claim. Others include:

• trial court mistakes,
• due process violations, and
• violations of your constitutional right against self-incrimination.¹⁰

Note the Nevada Supreme Court typically does not rule on IAC claims in appeals from a conviction.¹¹

5. Is IAC ever presumed?

You always have the burden to prove ineffective assistance of counsel except in rare cases where the attorney clearly provided no meaningful legal counsel. Examples of when Nevada courts can presume IAC include when your attorney:

• slept through the trial,
• is not licensed to practice law,
• is absent when the jury delivers the verdict,
• has a conflict of interest, and/or
• refused your wish to bring an appeal.¹²

6. What if I win?

It depends on the case and what you asked for in the motion or writ. In all probability, the court will reverse and remand the decision for a new trial or sentencing.

7. Can I waive IAC claims?

No. You retain the right to make a claim for ineffective of assistance of counsel. A Nevada plea deal should not include a waiver of your right to bring an IAC claim.¹³

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.

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Legal References