If you lose your criminal case, an incredibly popular issue on appeal is ineffective assistance of counsel. That is, defendants believe their lawyer did such a poor job that it negatively affected the outcome of their case. To determine whether an attorney was ineffective, appellate courts use a two-part test.

First, the defendant must prove that their lawyer’s representation fell below an objective standard of reasonableness. Second, the accused must show there is a reasonable probability that, but for counsel’s unprofessional errors, the result of their case would have been different. Some reviewing courts may not even analyze the former prong, because they believe the outcome of the case would not have been any different but for the lawyer’s alleged mistakes. When reviewing the latter requirement, the court must consider the totality of the evidence presented at trial. In doing this, the court will basically sit down and review the transcripts of the trial and evidence presented. It will then determine whether the evidence was sufficient to convict the defendant regardless of any errors by the defendant’s attorney. Some courts will go directly to this analysis, because then it does not matter whether the lawyer’s representation fell below an objective standard of reasonableness.

Claiming ineffective assistance of counsel often includes these common allegations: failure to file suppression motions prior to trial, failing to challenge for cause certain prospective jurors, failing to call supporting witnesses at trial, failing to make evidentiary objections during trial, failing to make particular arguments during trial, failing to do a proper investigation prior to trial, failing to communicate with the defendant, and failing to abide by the defendant’s wishes. Even if the reviewing court determines that a lawyer reasonably should have done any of those things, the court has to determine whether it would have likely changed the outcome of trial. Therefore, the court will engage in analyzing whether a motion to suppress evidence would have been successful, and if so, if it likely would have changed the outcome of trial. The same analysis follows for every single claim of ineffective assistance of counsel. Some issues are easier to analyze than others. Determining whether keeping a certain juror on the jury panel likely changed the outcome of the trial is more difficult to determine than whether making proper evidentiary objections altered the result of trial. The reasoning often relies on how strong the prosecution’s evidence was at trial. The stronger the evidence, the less likely an appellate court is going to determine that failing to call a certain witness would have changed the outcome

After being unsuccessful at trial, defendants feel like they have nothing to lose. They often turn to blaming their lawyer for doing a bad job, which triggers the ever popular ineffective-assistance-of-counsel claim as a method to try and get a new trial. In many situations, even if the attorney’s performance fell below an objective standard of reasonableness, it still was not bad enough to likely change the outcome of the case.

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