effective assistance of counsel

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Effective assistance of counsel is a right guaranteed for criminal defendants under the Sixth Amendment. The purpose of this guarantee is to increase the fairness and likelihood of justice ultimately being reached in a criminal justice system that places private individuals and the government in an adversarial position. The accused defendant must be assisted and represented by either a retained or appointed attorney, who makes decisions about defense strategy without interference from the government.

Assistance of counsel is not considered effective if the attorney does not provide the defendant with adequate legal assistance. The Supreme Court held in Strickland v. Washington that the proper standard for constitutional assistance of counsel is that attorney performance must be objectively reasonable given the totality of circumstances. Once the defendant raises the issue of ineffective assistance of counsel, the burden is on the defendant to show how the attorney’s performance fell below the objective standard of reasonableness. The judge makes the final decision as to whether counsel was ineffective and must be careful to not allow hindsight bias to affect this judicial scrutiny.

A defendant claiming ineffective assistance of counsel for the purpose of overturning a conviction or a death sentence must prove two things: 

  • First, they must prove that the assistance of counsel was unreasonable and therefore ineffective. 
  • Second, they must prove that if it was not for the errors made by the attorney, there is a reasonable probability that the proceeding would have had a different outcome.
    • That probability must be significant enough to undermine the judge’s confidence in the outcome of the case and the fairness of the trial.
    • Because of this requirement, unreasonable and unprofessional errors made by a defense attorney will not overturn a conviction or death sentence if they were unlikely to have caused the conviction or sentence.
    • Many attorney errors, even if unreasonable, are therefore not considered ineffective assistance of counsel.

[Last updated in November of 2022 by the Wex Definitions Team]