Strickland v. Washington (1984)

Justice MARSHALL, dissenting.

The Sixth and Fourteenth Amendments guarantee a person accused of a crime the right to the aid of a lawyer in preparing and presenting his defense. It has long been settled that “the right to counsel is the right to the effective assistance of counsel.” The state and lower federal courts have developed standards for distinguishing effective from inadequate assistance. Today, for the first time, this Court attempts to synthesize and clarify those standards. For the most part, the majority’s efforts are unhelpful. Neither of its two principal holdings seems to me likely to improve the adjudication of Sixth Amendment claims. And, in its zeal to survey comprehensively this field of doctrine, the majority makes many other generalizations and suggestions that I find unacceptable. Most importantly, the majority fails to take adequate account of the fact that the locus of this case is a capital sentencing proceeding. Accordingly, I join neither the Court’s opinion nor its judgment.

The opinion of the Court revolves around two holdings. First, the majority ties the constitutional minima of attorney performance to a simple “standard of reasonableness.” Second, the majority holds that only an error of counsel that has sufficient impact on a trial to “undermine confidence in the outcome” is grounds for overturning a conviction. I disagree with both of these rulings.

My objection to the performance standard adopted by the Court is that it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is interpreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave “reasonably” and must act like “a reasonably competent attorney” is to tell them almost nothing. In essence, the majority has instructed judges called upon to assess claims of ineffective assistance of counsel to advert to their own intuitions regarding what constitutes “professional” representation, and has discouraged them from trying to develop more detailed standards governing the performance of defense counsel. In my view, the Court has thereby not only abdicated its own responsibility to interpret the Constitution, but also impaired the ability of the lower courts to exercise theirs.

I object to the prejudice standard adopted by the Court for two independent reasons. First, it is often very difficult to tell whether a defendant convicted after a trial in which he was ineffectively represented would have fared better if his lawyer had been competent. Seemingly impregnable cases can sometimes be dismantled by good defense counsel. On the basis of a cold record, it may be impossible for a reviewing court confidently to ascertain how the government’s evidence and arguments would have stood up against rebuttal and cross-examination by a shrewd, well-prepared lawyer. The difficulties of estimating prejudice after the fact are exacerbated by the possibility that evidence of injury to the defendant may be missing from the record precisely because of the incompetence of defense counsel. In view of all these impediments to a fair evaluation of the probability that the outcome of a trial was affected by ineffectiveness of counsel, it seems to me senseless to impose on a defendant whose lawyer has been shown to have been incompetent the burden of demonstrating prejudice.

Second and more fundamentally, the assumption on which the Court’s holding rests is that the only purpose of the constitutional guarantee of effective assistance of counsel is to reduce the chance that innocent persons will be convicted. In my view, the guarantee also functions to ensure that convictions are obtained only through fundamentally fair procedures. The majority contends that the Sixth Amendment is not violated when a manifestly guilty defendant is convicted after a trial in which he was represented by a manifestly ineffective attorney. I cannot agree. Every defendant is entitled to a trial in which his interests are vigorously and conscientiously advocated by an able lawyer. A proceeding in which the defendant does not receive meaningful assistance in meeting the forces of the State does not, in my opinion, constitute due process.

[Justice Marshall then argued that even under the standard set forth by the majority, Strickland’s claim should have prevailed.]

Notes, Comments, and Questions 

The Strickland standard requires two showings from the defendant. First, the defendant must show that there was a deficiency in the attorney’s performance, and second, the defendant must how that that deficiency prejudiced the defense.  In other words, the defendant must show that but for the attorney’s unprofessional errors, the outcome might well have been different.   

Justice Marshall, on the other hand, focuses on the fairness of the process. He finds the requirement that a defendant prove prejudice, even after his attorney has been shown to be ineffective, is “senseless” because of the difficulties in making such a showing. Justice Marshall proposes the Sixth Amendment is violated when a defendant is represented by a manifestly ineffective attorney regardless of what other evidence of guilt the prosecution might possess.

Students should consider whether they find the majority or Justice Marshall more persuasive.  Why? What are the problems, if any, with the majority’s standard (or its application of the standard to the facts before it)? What are the problems, if any, with Justice Marshall’s proposed alternative?

While Strickland articulated a two-pronged test applicable when a defendant points to a specific error made by counsel, prejudice is presumed (that is, the defendant needs to prove it) when the defendant’s ineffective assistance claim rests on counsel’s failure “to subject the prosecution’s case to meaningful adversarial testing.” United States v. Cronic, 466 U.S. 648 (1984). The Court in Cronic, articulated that surrounding circumstances (rather than specific error) can give rise to a presumption of prejudice when counsel’s overall deficiency is akin to having no counsel at all.  Some circuit courts have expanded the Cronic standard to encompass counsel that sleep during the entirety of trial and counsel that ask no questions on cross examination.

In our next chapter, we continue our examination of ineffective assistance claims. We also review when a criminal defendant may represent himself and when a Court may deny that option to a defendant.