Amdt6.6.5.6 Prejudice Resulting from Deficient Representation Under Strickland

Sixth Amendment:

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 defence.

For deficient representation to constitute a constitutional violation, the Court established in Strickland v. Washington that there must be (1) deficient representation and (2) resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question.1 Meeting the second requirement of Strickland—whether the deficient representation resulted in prejudice—can be challenging. The touchstone of “prejudice” under Strickland is that the defendant “must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” 2 Defendants frequently fall short on the prejudice requirement.3

Beyond Strickland's “reasonable probability of a different result” test for determining prejudice, there are issues of when an “outcome determinative” test alone suffices, what exceptions exist, and whether the general rule should be modified. In Lockhart v. Fretwell, the Court appeared to refine the Strickland test when it stated that an “analysis focusing solely on mere outcome determination” is “defective” unless attention is also given to whether the result was “fundamentally unfair or unreliable.” 4 However, the Court subsequently characterized Lockhart as limited to a class of exceptions to the “outcome determinative” test and not supplanting it.5 According to Williams v. Taylor, it would disserve justice in some circumstances to find prejudice premised on a likelihood of a different outcome.6 For example, fundamental fairness precluded finding prejudice where defense counsel had failed to object to the use sentencing of an aggravating factor barred by a recent appellate case, but where that case was subsequently overturned.7 According to the Court, finding prejudice based on defense counsel’s failure to object in the narrow window where it would have been permissible based on the shifting precedent would have been nothing more than a fortuitous windfall for the defendant.8 As another example, the Court has said it would be unjust to find legitimate prejudice in a defense attorney’s interference with a defendant’s perjured testimony, even if that testimony could have altered a trial’s outcome.9

A second category of recognized exceptions to the application of the “outcome determinative” prejudice test includes the relatively limited number of cases in which prejudice is presumed. This presumption occurs when there are “circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” 10 These situations, the Court explained in United States v. Cronic involve some kind of “breakdown of the adversarial process,” and include actual or constructive denial of counsel, denial of such basics as the right to effective cross-examination, or failure of counsel to subject the prosecution’s case to meaningful adversarial testing.11 Moreover, prejudice is presumed “when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.” 12 “Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice],” 13 and consequently most claims of inadequate representation continue to be measured by the Strickland standard.14

Strickland v. Washington, 466 U.S. 668, 687 (1984). back
See Strickland v. Washington, 466 U.S. 668, 694 (1984). This standard does not require that a defendant show “that counsel’s deficient conduct more likely than not altered the outcome in the case.” See Id. at 693. At the same time, the Court has concluded that the “prejudice inquiry under See Strickland” applies to cases beyond those in which there was only “little or no mitigation evidence” presented. Sears v. Upton, 561 U.S. 945, 954 (2010) (per curiam); Porter v. McCollum, 558 U.S. 30, 40–42 (2009) (per curiam) (evaluating the totality of mitigating evidence to conclude that there was “a reasonable probability that the advisory jury—and the sentencing judge—would have struck a different balance’” but for the counsel’s deficiencies (Wiggins v. Smith, 539 U.S. 510, 537 (2003))). For an example of a criminal defendant who succeeded on the prejudice prong of the Strickland test, see Buck v. Davis, No. 15–8049, slip op. at 18–20 (U.S. Feb. 22, 2017) (holding that, in a case where the focus of a capital sentencing proceeding was on the defendant’s likelihood of recidivism, defense counsel had been ineffective by introducing racially charged testimony about the defendant’s future dangerousness, and “[r]easonable jurors might well have valued [the testimony] concerning the central question before them” ). Where a defendant alleges that ineffective assistance of counsel resulted in an increased term of imprisonment, it is not necessary that the increased prison term be of significant duration. See Glover v. United States, 531 U.S. 198, 203 (2001) ( “Authority does not suggest that a minimal amount of additional time in prison cannot constitute prejudice. Quite to the contrary, our jurisprudence suggests that any amount of actual jail time has Sixth Amendment significance.” ). back
E.g., Smith v. Spisak, 558 U.S. 139, 154–56 (2010); Thornell v. Jones. No. 22-982, slip op. at 9 (May 30, 2024). In Hill v. Lockhart, the Court applied the Strickland test to attorney decisions to accept a plea bargain, holding that a defendant must show a reasonable probability that, but for counsel’s errors, the defendant would not have pleaded guilty and would have insisted on going to trial. 474 U.S. 52, 59 (1985). As a result, the prejudice question with respect to when a counsel’s deficient performance leads the defendant to accept a guilty plea rather than go to trial is not whether the trial would have resulted in a not guilty verdict. See Roe v. Flores-Ortega, 528 U.S. 470, 482–83 (2000). Instead, the issue is whether the defendant was prejudiced by the “denial of the entire judicial proceeding . . . to which he had a right.” Id. at 483. As a result, prejudice may be very difficult to prove if the defendant’s decision about going to trial turns on his prospects of success and those chances are affected by an attorney’s error. See Premo v. Moore, 562 U.S. 115, 118, 123–24 (2011). However, when a defendant’s choice to accept a plea bargain has nothing to do with his chances of success at trial, such as if the defendant is primarily concerned with the respective consequences of a conviction after trial or by plea, a defendant can show prejudice by providing evidence contemporaneous with the acceptance of the plea that he would have rejected the plea if not for the erroneous advice of counsel. See Lee v. United States, No. 16–327, slip op. at 7–10 (U.S. Mar. 28, 2017) (holding that a defendant whose fear of deportation was the determinative factor in whether to accept a plea agreement could show prejudice resulting from his attorney’s erroneous advice that a felony charge would not lead to deportation even when a different result at trial was remote). back
506 U.S. 364, 368–70 (1993). back
See Glover, 531 U.S. at 203 ( “The Court explained last Term that our holding in Lockhart does not supplant the Strickland analysis.” ); Williams v. Taylor, 529 U.S. 362, 391 (2000) ( “The Virginia Supreme Court erred in holding that our decision in [Lockhart] . . . modified or in some way supplanted the rule set down in Strickland.” ) (internal citation omitted). back
529 U.S. at 391–92. back
Id. at 392–93. back
Id. back
Id. (citing and discussing Nix. v. Whiteside, 475 U.S. 157, 175–76 (1986)). back
United States v. Cronic, 466 U.S. 648, 658 (1984). back
Id. at 657–59. back
Roe v. Flores-Ortega, 528 U.S. 470, 484 (2000). In Garza v. Idaho, the Court clarified that the presumption of prejudice that applies when counsel’s deficient performance forfeits an appeal that a defendant otherwise would have taken remains even when the defendant has signed an appeal waiver, because issues may remain as to the scope or validity of the waiver and the presumption-of-prejudice rule does not depend upon the prospects of the defendant’s appeal. No. 17–1026, slip op. at 3–6, 9 (U.S. Feb. 27, 2019). back
Cronic, 466 U.S. at 659 n.26. back
See, e.g., Weaver v. Massachusetts, No. 16–240, slip op. at 12 (U.S. June 22, 2017) (holding that “when a defendant raises a public-trial violation via an ineffective-assistance-of-counsel claim, Strickland prejudice is not shown automatically” ); Florida v. Nixon, 543 U.S. 175, 189–90 (2004) (holding that a concession-of-guilt strategy in a capital trial does not automatically rank as prejudicial ineffective assistance of counsel); Bell v. Cone, 535 U.S. 685, 697–98 (2002) (concluding that Cronic's rule that prejudice can be presumed when counsel “entirely fails” to subject the prosecution’s case to meaningful adversarial testing does not extend to situations where counsel’s failings were limited to specific points in the trial); Mickens v. Taylor, 535 U.S. 162, 173–74 (2002) (holding that, to demonstrate a Sixth Amendment violation where the trial court fails to inquire into a potential conflict of interest, the defendant must establish that the conflict adversely affected his counsel’s performance). back