THE RIGHT TO EFFECTIVE COUNSEL

Today’s we review the accused’s constitutional right to the effective assistance of counsel. This not only encompasses the right to have counsel — but also to have competent legal representation, regardless of whether you hire your lawyer or your lawyer is appointed by the court.  The right to effective assistance of counsel applies at trial as well as to the plea bargain process.

The right to effective counsel comes from the Sixth Amendment which specifically states that:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

One of the seminal cases is Strickland v. Washington, 466 U.S. 668 (1984). This case affirmed that the right to effective counsel exists and is needed to protect an individual’s fundamental right to a fair trial. In Strickland the Supreme Court was asked to determine whether in the death penalty phase the criminal defendant had received effective assistance of counsel. The Supreme Court established a two part test for an ineffective assistance of counsel claim. To be successful on an ineffective assistance of counsel appeal, the defendant must establish the following:

  1. That the attorney’s actions and/or inactions fell below an objective standard of reasonableness; and
  2. That but for the attorney’ ineffective assistance the results would have been different.

In applying this two part test, the Strickland Court explained that an objective standard of reasonableness included undivided loyalty, avoiding conflict of interests, advocating for the defendant, and consulting with and keeping the defendant informed of important developments in the case. However, in reviewing the quality of the representation the attorney is given a high degree of latitude in making tactical decisions and that tactical decisions.

In Strickland, the Court ultimately found that the defense provided did not cause actual prejudice to the defendant. Most ineffective counsel cases are dismissed unless there is a glaring error which caused actual prejudice to the defendant. Therefore, the Strickland case is a cautionary tale in that a criminal defendant must be careful when hiring an attorney. The attorney’s track record needs to be examined very carefully. Also, during litigation it is essential for the criminal defendant to be helpful in constructing and maintaining the defense.

For more information on our firm’s criminal defense practice, click here.

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