9.03. Competence in the Criminal Context: Ineffective Assistance of Counsel

Criminal defendants are entitled to competent representation just like parties to a civil case.  A criminal defendant can file an ethics complaint against his lawyer.  A criminal defendant can also file a malpractice claim for damages (although, as discussed above, the “actual innocence” requirement makes these claims difficult).  However, what the criminal defendant may want above all is a reversal of their conviction and, in most cases, an opportunity for a new trial.

A criminal defendant is entitled to assistance of counsel as a matter of constitutional law – the Fifth and Sixth Amendments.  Therefore, if a criminal defendant is denied a lawyer, these Amendments are violated, and the defendant’s conviction will be overturned.  What happens, however, when the defendant has a lawyer, but the lawyer is incompetent.  When can a defendant claim that his attorney’s conduct was so deficient that he should be entitled to a new trial?  The standard for determining when a defendant can make such a claim was established in the United State Supreme Court case Strickland v. Washington in 1984.  Strickland, which is in the readings below, sets out a two-prong test for a defendant to establish ineffective assistance of counsel.