You may believe that your attorney didn’t do the best job representing you in your criminal case. If this is true, the judge may overturn the conviction and order that you receive a new trial.

What Does “Ineffective Assistance of Counsel” Mean?

If your attorney is incompetent, it is very likely that you could be convicted on the crime charged. Because this is such a distinct possibility, you are allowed to state that your attorney was ineffective while your case was being tried. If you are convicted in the case, you can also make this claim after your conviction. If you make this claim during your trial, the judge will allow you to replace your current counsel. If you are going to make the claim after a conviction, you might be entitled to a new trial.

The Supreme Court’s Decision.

According to the Sixth Amendment of The Constitution, you are entitled to have an attorney represent you in a court of law. The Supreme Court decided that, if you have an incompetent attorney, this is just like not having an attorney in the courtroom with you. Therefore, ineffective counsel is a violation of your Sixth Amendment rights.

Lawyers are human beings, so they can make mistakes, and it wouldn’t be right to claim ineffective assistance of counsel every time a lawyer makes a mistake. For this reason, the Supreme Court established a test that would determine whether a defendant was a victim of ineffective assistance of counsel or just professional errors.

To show ineffective assistance of counsel, you must demonstrate that the following are true:

• Your trial lawyer did not live up to the “objective standard of reasonableness.”
• There is a reasonable probability that the judge or jury would have reached a different conclusion if it had not been for your trial lawyer’s unprofessional errors.

The Question of Reasonableness.

Your attorney will have to demonstrate to the judge that your trial lawyer did not perform his or her job in a “reasonable” manner. To determine that a lawyer performed his or her duties reasonably, the judge may consider the following:

• The evidence that was available during the trial.
• The defendant’s education and behavior during the trial.
• The trial lawyer’s legal strategies.
• The court’s rules.
• The ethical duties that the trial lawyer was obligated to follow.

Because judges rarely question an attorney’s strategies during a court case, they may also consider the following:

• Whether or not the attorney can adequately explain his or her reasoning for his or her actions and decisions.
• Whether or not the attorney can adequately explain why he or she did the things that he or she did.
• Whether or not the attorney committed an obvious and grave error.

The Supreme Court’s Test as Applied to the Case.

Your attorney may have committed an act of omission or a lack of discretion, but if he or she can adequately explain these acts, the attorney cannot be found to have given you ineffective assistance of counsel.

Your attorney may be able to reasonably explain his or her strategy. If the attorney can do this, the judge will have no choice but to reject your motion. The attorney can be wrong, but employing an erroneous strategy does not constitute ineffective assistance of counsel.

Making Mistakes during the Trial.

An attorney cannot be penalized for making mistakes during a trial. Therefore, your new attorney must show that your trial attorney’s mistakes are the direct cause of the outcome of your trial. Your new attorney may demonstrate the following examples of ineffective counsel:

• The prosecution obtained evidence unlawfully, but your attorney failed to challenge this evidence.
• Your attorney failed to file motions before the deadlines occurred.
• Some evidence or testimony may have been inadmissible, but your attorney failed to object to it.
• The prosecution did not have sufficient evidence to warrant a conviction, but your attorney failed to file a motion for dismissal.

The Remedies for Ineffective Assistance of Counsel.

The court may do one of two things when it has been determined that you had ineffective counsel. These include the following:

• The court can “vacate” the conviction. Vacating a conviction means that the conviction will be set aside. In essence, it means that you were never tried in a court of law and that you were never convicted of a crime. The prosecution will have the opportunity to try you again, so if the conviction has been vacated, you would need to prepare for another trial.
• The judge may reverse a guilty verdict and order the prosecution to try the defendant again. This occurs if the defense attorney proved to be ineffective after the trial is over. If the trial is going on when the question of ineffectiveness of counsel comes up, the judge may order that the defendant receive a new attorney.

If you believe that your lawyer was ineffective, hire a criminal defense law firm to protect your Sixth Amendment rights.