NCJ Number
80246
Editor(s)
C Beckman
Date Published
1979
Length
40 pages
Annotation
Issues bearing upon court standards for determining ineffective assistance of counsel are discussed.
Abstract
Since Powell v. Alabama, it has been accepted that a defendant has the right to the assistance of counsel whose performance does not fall below a minimum level of effectiveness; however, the courts have been struggling to give meaning to the term 'effectiveness of counsel.' The 'farce and mockery' standard, which originated in Diggs v. Welch, was adopted in most of the States and Federal circuits, although many courts adopted less restrictive standards. The U.S. Supreme Court has yet to provide a standard by which effectiveness of defense counsel can be evaluated under the sixth and fourteenth amendments. The lower courts have used McMann v. Richardson as authority for the development of standards more liberal than 'farce and mockery.' Twenty-nine of the State courts have rejected or modified the 'farce and mockery' test, and five States are currently reevaluating this test. Although attitudes are changing, many courts have held that a different standard applies to retained counsel than to appointed counsel, with the defendant being ineligible for relief when retained counsel is used, since there has been no 'state action' depriving the defendant of due process of law. Generally, trial counsel is presumed to be effective unless the defendant shows the contrary under whatever standard applies in the relevant jurisdiction; however, the burden of proving prejudice differs among the many jurisdictions. Examples of ineffective assistance of counsel from court decisions are provided in the areas of pretrial, guilty pleas, inadequate time to prepare, trial tactics, and posttrial. The relief that may be granted when counsel is deemed ineffective is briefly discussed. Twelve secondary sources are listed.