Anyone accused of a crime has the right to a fair trial. One way to make sure trials are fair is to require that defendants have effective defense lawyers. But what does “effective” mean? And what do you have to prove to get your conviction set aside because of your lawyer's incompetence? While courts have been addressing those questions for decades, the answers in your case will depend on the circumstances.

The Sixth Amendment and the Right to Effective Representation in Criminal Proceedings

Under the Sixth Amendment to the U.S. Constitution, criminal defendants have a number of guaranteed rights, including the “Assistance of Counsel.” Although it’s not spelled out in the amendment, the U.S. Supreme Court has long recognized that legal representation must be effective if it’s to serve the purpose of ensuring a fair trial.

The right to effective legal representation doesn’t only apply to the actual criminal trial. It also covers other stages of the process, including plea bargaining and post-conviction proceedings to decide whether to impose a death sentence.

How Do You Prove Ineffective Assistance of Counsel?

It isn’t easy to convince a court that it should set aside your conviction or plea bargain because your attorney didn't do a good job. Under what's known as the "Strickland standard," you have to prove two things to support a claim that you didn't have effective assistance of counsel:

• that your attorney's performance was inadequate, and
• that the inadequate representation unfairly “prejudiced” you to the extent that you didn’t get a fair trial.

(Strickland v. Washington, 466 U.S. 668 (1984).)

What Is Inadequate Representation?

"Effective assistance of counsel” doesn’t mean the lawyer did a perfect job, free of any mistakes. As the Court explained in Strickland, the proper measure of an attorney’s performance is whether it was reasonable under objective professional standards.

A single set of rules wouldn’t work to say what’s reasonable, because the circumstances in each case are different. Also, defense lawyers have to make decisions about legal strategy that are essentially judgment calls. There’s a difference between the best course of action and one that was reasonable based on the available evidence and norms of the legal profession.

In general, judges are very reluctant to second-guess attorneys’ judgment; they start out by assuming that lawyers know the best way to defend their clients. So defendants have an uphill battle in order to prove otherwise.

Here are just a few examples of situations where courts might consider an attorney’s representation to be inadequate, depending on the particular circumstances:

• Your attorney didn’t object when the prosecution introduced evidence that came from an illegal search—because your lawyer didn’t conduct pretrial discovery to learn the source of that evidence.
• Your lawyer didn't hire an expert witness to counter the testimony from the prosecution's expert.
• After your murder trial, you find out that your lawyer has a social relationship with one of the victim’s friends—a conflict of interest that made the attorney less effective in putting up a vigorous defense for you.
• Your attorney filed a motion to suppress evidence but didn’t include a legal memo explaining why the prosecution’s evidence should be suppressed.
• Your lawyer advised you to plead guilty to a reduced criminal charge but didn’t explain that the plea might have immigration consequences because you’re a green card holder. Later, you face deportation for the crime.

When Does Ineffective Representation Prejudice a Defendant?

Even when attorneys’ conduct is shockingly unprofessional—like sleeping through a trial—courts won’t set aside convictions for that reason unless the defendants also meet the “prejudice” part of the Strickland test. Generally, this means showing that without the lawyers’ incompetence, the result would probably have been different. That probability must be reasonable, and it must be strong enough to cast doubt on the fairness of your conviction. That can be very difficult to prove.

However, in some situations, prejudice is presumed. For instance, in cases where defense attorneys have actual conflicts of interest—such as representing two people charged with the same crime, one of whom could make the other look guilty in testimony—defendants don’t have to prove that they were prejudiced as a result of the conflict; courts will assume that’s true. Defendants only need to show that the actual conflict existed and that it had a negative effect on the lawyers’ performance.

Speaking to a Lawyer

If you want to know whether you have a claim for ineffective assistance of counsel, you should speak to another criminal defense lawyer who handles cases like yours. An attorney who’s experienced in this area can explain how and when to make your claim, as well as evaluate your chances of success based on the circumstances in your case.