The law provides a number of complexities and pressures of being faced with criminal prosecution. United States Constitution recognized this and provided for the need of defendants in criminal cases to have counsel to represent them. One element of the 6th amendment is the right to assistance of counsel for a criminal defendant’s defense. Having the assistance of counsel means that a criminal defendant had representation by a competent attorney. Here, competence is defined as reasonable professional assistance.

When Does this Right Apply?

The right to effective counsel automatically attaches when the state initiates prosecution with an indictment or formal charges against a defendant. This includes all critical stages after formal proceedings have begun, whether the defendant is in custody or not. Critical stages include the following:

• Post-indictment lineups and identifications;
• Post-indictment interrogations;
• Arraignment and preliminary hearings to determine if there is probable case and to determine whether or not to prosecute
• Plea bargaining, entering a guilty plea, sentencing; and
• Appeals as a matter of right

Further, this right does not end until the sentencing stage and still applies even if a criminal sentence is suspended. However, it is important to note that this right only applies with regard to the offense for which a defendant has been charged and any lesser included offenses. This right will not attach to crimes that the defendant has not been formally charged with.

What Must You Show to Prove Ineffective Counsel?

In the landmark case Strickland v. Washington, the United States of the Supreme Court set forth the test used in order to prevail on a claim of ineffective assistance. The defendant must show:

• Deficient performance by counsel and
• Resulting prejudice – if not for the deficient performance, the result of the proceedings would have been different.

However, this is a difficult claim to prove because both elements of the above test must be met.  Therefore, even if there was extremely incompetent performance by counsel, it will not support a finding of ineffective assistance unless there was also independent and substantial evidence of the defendant’s guilt of if the end result would have been the same in the specific case even with a competent counsel. For instance, cases have been affirmed on appeal even when the defense attorney fell asleep during the prosecutor’s cross-examination of the defendant and another when the defense attorney was mentally ill.

What Happens if I Prove Ineffective Counsel?

If the court determines that the burden of proof for ineffective counsel has been met, the defendant’s conviction will be thrown out and a new trial will be ordered. In some rare instances, the court may dismiss the case. Another remedy to consider is a civil suit for legal malpractice against your previous attorney.  

At Shein & Brandenburg, we have competent attorneys to advocate for you at all stages of your federal criminal case. Should you have ineffective assistance in a previous criminal proceeding, our attorneys will work to not only prove such ineffective counsel but also to adequately represent you should a new trial be ordered.