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    AMERICAN JUDICIARY INSTITUTE of ATTORNEY OVERSIGHT & REPORTING 

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Ineffective Assistance of Counsel

An ineffective assistance of counsel claim is an allegation that your attorney provided you representation that fell below a constitutionally required level. The Sixth Amendment to the United States Constitution guarantees an attorney to anyone charged with either a felony or misdemeanor. If you are able to establish that your attorney provided ineffective assistance of counsel, you will get a new trial. Ineffective assistance of counsel claims are very common issues raised in direct appeals and post-conviction petitions. 

How Do You Win an Ineffective

Assistance of Counsel Claim? 

Ineffective assistance of counsel claims are based upon the United State’s Supreme Court case of Strickland v. Washington, 466 U.S. 668 (1984). To prove that your attorney provided ineffective assistance of counsel you must show that your trial attorney’s representation fell below an “objective standard of reasonableness” and (2) “a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”


The Strickland standard is very difficult to prove. Essentially, you are required to prove after the fact that your attorney’s representation was so bad that it denied you a fair trial. However, even if you show that your attorney’s representation was awful and below a constitutionally required level, your claim will lose if the error didn’t affect the outcome of the trial.

What Kind of Acts Amount to

Ineffective Assistance of Counsel? 

Most ineffective assistance of counsel claims arise when an attorney takes on a case that he or she probably shouldn’t have because the requisite experience was lacking. Whether your attorney provided you ineffective assistance of counsel can only be decided based upon your particular facts. That said, ineffective assistance of counsel might occur if your attorney fails to interview alibi witnesses, fails to call an expert on your behalf, fails to conduct an investigation into potential defenses, or causes you to lose a plea agreement. 

Why Do So Many Ineffective

Assistance of Counsel Claims Fail? 

A 2010 report by the Innocence Project found that out of 255 exonerations based upon DNA, 81% of those exonerations unsuccessfully raised an ineffective assistance of counsel claim. The reason for the lack of success is simple and can be attributed to two reasons. First, establishing prejudice is next to impossible especially considering that it is very likely that your bad lawyer did not do an adequate job of finding impeachment evidence against the State’s witness; your ineffective lawyer likely did not conduct his or her own investigation into the crime; and your bad lawyer likely didn’t have the experience necessary to handle your case in the first place.


The second reason why the success rate for ineffective assistance of counsel claims is so low is because the doctrine of trial strategy protects bad attorneys. The courts have held that being an attorney is more art than science and the decisions and actions that an attorney makes during a criminal prosecution that fall under the “art” side of being a lawyer are not subject to an ineffective assistance of counsel claim. Decisions such as what type of defense to raise at trial, which motions are filed in court, what questions are asked to the witnesses, and the manner in which to conduct a trial all fall under the trial strategy umbrella. As a result, all these decisions even if bad and unreasonable will not support an ineffective assistance of counsel claim. 

Jaleel Law P.C., “Ineffective Assistance of Counsel, Now What?” (Omer Jaleel) August 13th, 2014. Article
http://www.defenseadvocates.com/ineffective-assistance-of-counsel/

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