Ineffective assistance of counsel is when an attorney’s services to a defendant in a criminal case fall so far short of what a reasonably competent attorney would do that it violates the Sixth Amendment of the Constitution. In other words, the counsel for the defendant was so ineffective that the counsel could hardly be considered an attorney, thus negating the “right to an attorney” as promised by the Constitution. 

The Supreme Court defined ineffective assistance of counsel in the landmark case Strickland v. Washington (1984). The Court held that an attorney’s assistance is ineffective if it "so undermined the functioning of the adversary process that the trial cannot be relied upon as having produced a just result."

How Does a Defendant Prove Ineffective Assistance of Counsel?

Strickland creates a framework for proving ineffective assistance of counsel. The burden of proof is on the defendant, which means it is the defendant’s responsibility to prove his attorney was ineffective. The court will start with the assumption that the attorney provided effective assistance.

To show ineffective assistance, first the defendant must show that his attorney’s performance was deficient because the attorney made such serious mistakes. Second, the defendant must show that the attorney’s mistakes prejudiced the defendant’s case. Prejudice means the trial would have come to a different result if the attorney had not made those mistakes.

What Happens if Defense Counsel is Found Ineffective?

If the defense attorney is found to have provided ineffective assistance, the court will throw out the defendant’s conviction and order a new trial.  In some very rare instances, the court may dismiss the case.

If There Is a New Trial Can I Receive A New Attorney Or Do I Have To Represent Myself?

If the previous attorney was ruled ineffective and you cannot afford another defense attorney yourself, the court will appoint a public defender. If you wish to represent yourself, that is your right although it is advised that you retain an attorney for advice in case anything unexpected occurs.

Can I Sue For Legal Malpractice?

Yes, ineffective assistance of counsel can result in a civil suit for legal malpractice, especially if the ineffective assistance resulted in a wrongful conviction and a heavy sentence. If the ineffective assistance resulted in such an outcome, it is likely that the counsel was negligent in his or her duty to represent you. 

Do I Need a Criminal Attorney?

The standard for ineffective assistance of counsel is very difficult to meet; it requires a much greater level of incompetence by an attorney than is required for malpractice. If you have questions about an ineffective assistance of counsel claim, speak with an experienced criminal attorney and get the representation you deserve.