Effective Assistance of Counsel

Question 1

What amendment requires assistance of counsel?

Answer 1

The Sixth amendment

Question 2

What are the elements of an Ineffective Assistance of Counsel Claim?

Answer 2

1. Deficient Performance
2. The Deficient Performance prejudiced the defendant

Strickland

Question 3

What is Deficient Performance?

Answer 3

Counsel’s performance fell below an objective standard of reasonableness and/or they “made errors so serious that counsel was not functioning as the ‘counsel’ guaranteed the defendant by the Sixth Amendment”

Question 4

Examples of Deficient Performance

Answer 4

1. Not competently advising on Immigration consequences
2. Introducing evidence that race led to propensity for violence (Buck v Davis)
3. Failing to meet PR (Strickland)

Padilla

Question 5

Example of Not Deficient Performance

Answer 5

A strategic decision (choosing one objectively reasonable option over another) by an attorney cannot be grounds for deficiency

Strickland

Question 6

When has deficient performance prejudiced a defendant?

Answer 6

When there is a reasonable probability that but for the deficient performance the result would have been different

Strickland

Question 7

What are the standards for effective counsel in immigration advice?

Answer 7

1. Counsel has a duty to warn that their immigration status might be affected AND
2. Counsel cannot unreasonably give bad advice

Padilla

Question 8

Is allowing Perjury by the defendant ineffective Assistance of Counsel?

Answer 8

Yes. Using the Model Rules of PR as a standard, counsel is to advise against perjury, then threaten to withdraw and as a last resort tell the court if the defendant chooses to still testify. Not threatening to withdraw or telling the court falls below the standard and is deficient

Nix v Whiteside