Ineffective Assistance of Counsel

From Criminal Defense Wiki
Jump to navigationJump to search

Background

Poor lawyering contributes to a significant number of wrongful convictions.[1] In absence of waiver by the defendant, effective assistance of counsel requires the presence of a licensed attorney-at law.

United States

Test for Ineffective Assistance of Counsel

In Strickland v. Washington,466 U.S. 668 (1984), the United States Supreme Court held that for a defendant to make out a claim of ineffective assistance of counsel, the defendant must show that 1) counsel's performance was deficient in that it fell below an objective standard of reasonableness and 2) that counsel's deficiencies so prejudiced his case so as to render the outcome of his trial unreliable and therefore unfair.

Generally proof of ineffective assistance of counsel will require the defense attorney to provide additional material to the court that is outside the appeal record. However, in some instances ineffective assistance of counsel may so patently obvious from the record, that it can be raised on direct appeal without any additional proof.

Per Se Ineffective Assistance of Counsel

If a defendant is unknowingly represented by an individual who claims to be a licensed attorney but is in fact not licensed in the jurisdiction, a court may reverse the case without regard for whether the defendant suffered any prejudice as a result of the fraudulent lawyer. Courts have generally recognized two rationales for the per se rule.

"[T]he rationale for [the per se] rule is not only the obvious violation of the right to a duly educated and licensed attorney, but also the danger to the right of effective assistance of counsel posed by the impostor's conflict of interest--he cannot be too zealous in representing defendant due to his fear that his zeal might trigger an inquiry that would disclose his fraud."[2]

This rule may even be invoked when a defendant is represented by two attorneys, only one of which is not actually a licensed attorney.[3]

In certain cases a technical defect, such as failure to pay bar dues or secure admission pro hac vice, will not trigger the per se rule. [4]. In one case, the rule was triggered when an attorney who resigned from the bar represented a client at trial. [5]

New York Test

New York courts have adopted a rule somewhat more favorable to the defendant. The rule, which relies on language in the New York Constitution, "focuses on the fairness of the process as a whole rather than its particular impact on the outcome of the case. . . . [Thus]under our State Constitution, even in the absence of a reasonable probability of a different outcome, inadequacy of counsel will still warrant reversal whenever a defendant is deprived of a fair trial." [6]

Notes

  1. http://www.innocenceproject.org/understand/Bad-Lawyering.php
  2. People v. Leslie, 232 A.D.2d 94, 97 (1st Dep't 1997) but see People v. Jacob, 6 N.Y.3d 188 (2005)
  3. United States v. Novak, 903 F2d 883 (2nd Cir. 1990)
  4. People v. Kieser, 79 N.Y.2d 936 (1992)
  5. In Re Johnson, 1 Cal. 4th 689 (1992)
  6. People v. Caban, 5 N.Y.3d 143 (2005