Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Aug 14, 2012

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This is a huge hurdle. To prevail on a claim of ineffective assistance of counsel, you must show on record:

  1. That the defense counsel’s actions fell below an objective standard of competence, and
  2. that, but for counsel’s errors, the results of the proceeding would have been different.

If your attorney’s decisions and actions can be construed as legitimate trial tactics, they will be considered competent and your claim fails.

Examples of trial tactics include: what witnesses to call, whether and how vigorously to cross examine witnesses, whether to interview the state’s witnesses or rely on police reports, what defenses, if any, to raise, among other trial endeavors.

Even if your attorney was incompetent, the defendant has to show that competent representation would likely have resulted in a not guilty verdict. This is an extremely heavy burden to meet, as the appellate court will consider all the evidence, construe it in the light most favorable to the state, and then decide if a jury would likely have changed its verdict. You can’t argue that witness X would have testified to certain things, unless the attorney summarized the witness’s potential testimony on the record. You can’t argue that the verdict might have been different; you have to show it would have been.

Speculation about what might have been is insufficient to support a claim of ineffective assistance. If you need to argue ineffective assistance based on evidence outside the record, you have to submit a post-review petition, with supporting affidavits and evidence, and make your arguments. In neither a direct appeal nor a post-review petition can the defendant claim that his counsel was ineffective because he was found guilty.

Claims that succeed are usually along the lines of failure to challenge a search that was so obviously illegal that no attorney should have missed it and no court would have allowed it, and the state could not (as a matter of law) prove its case without the search results. Another winning argument is if you can prove collusion between counsel and the state.