Introduction

The Strickland Test

Introduction

A defendant who stands trial with a lawyer at the defense table has a lawyer in the literal sense, but the Sixth Amendment guarantees more than a licensed person in the room. In Gideon v. Wainwright the Court reasoned that governments hire prosecutors, and defendants who can afford it hire the best defense lawyers they can find, because both sides treat lawyers as necessities of a fair trial.¹ A lawyer who is present but does not function as an advocate supplies none of that necessity, which is why the Court has said that the assistance of counsel guaranteed at trial must also be effective.² The accused is entitled to a lawyer who acts as a competent advocate and who subjects the government's case to meaningful testing.³ Stating that entitlement is easier than measuring it, because every defendant who raises the claim has by definition lost, and a loss alone cannot show that the lawyer was at fault. A client facing overwhelming evidence will be convicted even with the best advocate available.⁴

Before 1984 courts answered that puzzle in different ways. Some asked whether counsel's performance amounted to a farce and mockery of justice, others whether counsel showed reasonable competence, and they disagreed about whether poor representation required a new trial automatically or only when the defendant proved the outcome would have changed.⁵ Strickland v. Washington replaced those formulations with one governing test.⁶ Its opening frame is a presumption: effective assistance is presumed, and the presumption gives way only when counsel's conduct so undermines the adversarial process that the trial cannot be relied upon to have produced a just result.⁷ The measure is therefore the reliability of the outcome, and the question is not whether counsel tried the case as the best lawyer would have. The Court rejected any per se rule of ineffectiveness and required instead a two-part showing.⁸ The facts of the case itself show how demanding that showing is. David Washington pleaded guilty to three capital murders and was sentenced to death after his lawyer presented little mitigating evidence. The Court held that this was a reasonable strategic choice, and that even if it were not, the aggravating circumstances were so overwhelming that the omitted evidence would not have changed the result.⁹

Claims of this kind are raised by the hundreds, perhaps thousands, each year, and they rarely succeed.¹⁰ That record explains how the doctrine is built. A high-volume system cannot send back a meaningful share of its convictions for retrial whenever a defense lawyer made a mistake, so the constitutional bar sits where only serious failures that undermine confidence in the result can clear it.¹¹ A reviewing court accordingly begins from a strong presumption that counsel acted within the range of competent representation, and the defendant carries the burden of overcoming it.¹² Ordinary bad lawyering does not win. Two other routes to ineffective assistance exist, one where counsel labors under a conflict of interest and one where the government interferes with counsel's work, but they are not the focus here except where presumed prejudice arises later in this chapter.¹³ The first section lays out the two-part test as a whole, so that the later sections can take the performance requirement and the prejudice requirement apart one at a time.