What is ineffective assistance of counsel?

| Jan 10, 2020 | Post-conviction Relief |

When someone is charged with a crime, the U.S. Constitution provides them the right to “assistance of counsel” – essentially, the right to an attorney. But what happens when a lawyer makes obvious mistakes or provides bad information to their client, resulting in a conviction that may have otherwise been avoided?

Then the defendant might have a strong claim to ineffective assistance of counsel.

Two key elements to ineffective assistance of counsel

An ineffective assistance of counsel claim is a type of post-conviction relief, coming after the conclusion of a criminal proceeding. Essentially, it is an argument that a lawyer was ineffective. For one of these claims to be successful, you have to demonstrate two key things:

  • The attorney’s performance did not meet an objective standard of reasonableness – or, to put it another way, was deficient
  • If the attorney’s performance had not been subpar, the outcome of the case would have been different

Examples of ineffective assistance of counsel

There are several different ways an attorney can be ineffective.

One high-profile example comes from the Wisconsin case chronicled in “Making a Murderer.” In recent years, Steven Avery and his new lawyer have argued Avery initially received ineffective counsel. One of those attorneys even admitted as much in 2017, writing he did not consider hiring a blood splatter or ballistics expert to help argue against the prosecution’s charges.

Other ways in which a lawyer might provide ineffective assistance of counsel include:

  • Failing to investigate certain claims that might help their client’s case
  • Missing key dates or deadlines
  • Failing to object to evidence
  • Not telling their client about a plea offer, or not explaining the consequences of a plea
  • Declining to call key defense witnesses

Any attempt at post-conviction relief can be quite complex, but everyone should know it might be an option. You don’t need to lose hope the second a conviction comes down. There may still be a path forward.