Wiggins v. Smith: The Ineffective Assistance of Counsel Standard Applied Twenty Years After Strickland

Georgetown Journal of Legal Ethics, The, Summer 2004 by Gable, Elizabeth, Green, Tyler

In order for counsel's performance to be deemed deficient (the "first prong" of the Strickland test) the defendant must prove that counsel was not functioning as the "counsel" guaranteed by the Sixth Amendment.25 Counsel must provide reasonably effective assistance, which is determined by evaluating whether the performance fell below an objective standard of reasonableness.26 The Court chose not to give any further specific guidelines beyond "reasonableness under prevailing professional norms," although it did speak to some of the criteria that may be evaluated as each case warrants.27 The Court noted that violations of certain duties owed to the client might be indications of ineffective counsel, such as the duty of loyalty, the duty to avoid conflicts of interest, the duty to advocate the defendant's cause, and the "duty to bring and bear such skill and knowledge as will render the trial reliable."28

The Court made clear in Strickland that this list of duties is not a complete list of obligations owed by the attorney, nor is it to be a list used to judicially evaluate counsel's performance.29 "The performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards ... are guides to determining what is reasonable, but they are only guides."30 The Court specifically mentioned ABA Standards for Criminal Justice 4-1.1 through 4-8.6 as a good source of guidance.31 Other prevailing norms of practice would include standards such as the Model Rules of Professional Conduct, the Model Code of Professional Responsibility and local or state rales applicable in each jurisdiction. The Court was concerned that by adopting any of these standards explicitly, or creating its own detailed guidelines, counsel might be distracted from the goal of vigorous advocacy of the client's cause.32

During review of the effectiveness of assistance of counsel, there is to be a strong presumption that counsel has given adequate assistance, and a court is to make every effort to eliminate the distorting effects of hindsight.33 Courts grant a great deal of deference to decisions made by counsel during the course of the trial, and therefore are generally reluctant to find that an attorney has rendered ineffective assistance.34 This deference has been criticized for excusing "questionable conduct that would otherwise have been ineffective" but for this liberal standard.35 However, the Court noted that there are countless strategies and investigations that counsel may choose, and that "[e]ven the best criminal defense attorneys would not defend a particular client in the same way."36 Thus, counsel will not be judged ex post if facts come to light after the trial that make strategic choices made by counsel seem erroneous, as long as counsel had investigated those facts reasonably available to him at the time of the trial.37

In addition to proving counsel acted unreasonably in providing effective assistance, the defendant also carries the burden of proving that the deficient performance prejudiced the outcome of his trial, under the "second prong" of the Strickland test.38 Denial of assistance from counsel altogether, or state interference with counsel's assistance, are deemed to per se prejudice the outcome of the case.39 A conflict of interest, which is a breach of the duty of loyalty to the client, will usually lead to a prejudiced outcome. However, because that result is primarily dependent on the circumstances of each case, a conflict of interest is not per se ineffective assistance of counsel as is denial of assistance or state interference.40 Simply proving that counsel's shortcomings might have had some conceivable effect on the outcome, or that the errors might have impaired the presentation of the defense, is not enough to show that the outcome of the case was prejudiced. Rather, the defendant must prove that there is a reasonable probability that but for counsel's actions, the result of the proceeding would have been different.41