Did You Receive Ineffective Assistance of Counsel?


Have You Receive Ineffective Assistance of Counsel?

As stated in the previous section, the grounds available for overturning a conviction on appeal are numero and are really only limited by the cleverness and legal dexterity of the appellate attorney handling the appeal; however, one of the most common arguments raised on appeal is the ineffectiveness of trial counsel.

Ineffective Assistance of Counsel

The United States and Illinois Constitutions guarantee the right to have attorney representation in a criminal case where there is a possibility of imprisonment so any misdemeanor or felony offense in Illinois. However, that right does not guarantee you a great attorney and it does not even guarantee you a good attorney. Your right to an attorney only guarantees you reasonable representation. Unfortunately, that includes almost everything other than sheer incompetence. In 1984, the Supreme Court of the United States created the standard of whether an attorney provided ineffective assistance. That case, Strickland v. Washington, held that conducting a trial is more art than science and that most actions by an attorney fall under the umbrella of “trial strategy,” which is not subject to claims of ineffectiveness of trial counsel.

Under Strickland, to be ineffective an attorney’s representation must fall below a reasonable standard of care and that but for the deficient representation the outcome of the trial would have been different. To be successful under the Strickland standard, it is not enough to establish that your attorney made a mistake but it also requires establishing that without the attorney’s mistakes the result of the trial would have been different.

Although the Strickland standard is difficult to establish it is not impossible. In fact, raising a Strickland claim is one of the most frequently used arguments in both direct appeals and postconviction petitions. Strickland claims are common not only because attorneys make mistakes all the time but also because raising an ineffective assistance claim is a way to raise an argument that otherwise would have been barred by waiver. Common mistakes that attorneys make include failing to file meritorious pre-trial motions, failing to object to the State introducing prejudicial evidence, providing representation even though a conflict of interest existed, failing to present defense witnesses, or by not properly researching and conducting the defense in your case. In reality, the mistakes that an attorney can make at trial are limitless but the central issue is not whether a mistake was made but whether that mistake changed the outcome of the trial.


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