Gavin Howe
If you believe your lawyer was incompetent and you were subsequently convicted, you may be able to appeal on the basis of ineffective assistance of counsel. In the United States, this right is guaranteed by the Sixth Amendment, which states that a defendant has a right to a lawyer and a fair trial. To make a successful claim, you must demonstrate that your lawyer's incompetence was the primary reason for your conviction, and that their actions were unreasonable and fell below professional standards. This could include failing to interview key witnesses, not presenting important evidence, or failing to object to inadmissible evidence. In the UK, the situation is similar, with defendants having the right to a fair trial and to have their defence presented in court. However, the specifics of the legal process may differ.
| Characteristics | Values |
|---|---|
| Country | United States, United Kingdom |
| Applicable Law | Sixth Amendment to the U.S. Constitution |
| Basis for Appeal | Ineffective assistance of counsel, incompetence |
| Time Limit | 30 days for misdemeanour, 60 days for felony; two years for post-conviction motions in Florida |
| Appeal Process | Direct appeal, collateral attack on conviction |
| Appeal Decision | Retrial, new sentencing hearing, vacated conviction |
| Examples of Ineffective Assistance | Failing to interview witnesses, investigate evidence, object to inadmissible evidence, or advise on plea deals |
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What You'll Learn
Criminal cases: Appealing due to incompetence
In the United States, incompetence or ineffective assistance of counsel is a valid basis for appealing a criminal conviction. The Sixth Amendment of the U.S. Constitution guarantees defendants the right to an attorney and effective counsel during their trial and appeal. If a lawyer is ineffective or negligent, it deprives the defendant of their right to a fair trial.
To succeed on a claim of ineffective assistance of counsel, the defendant must establish two facts. First, that the lawyer's representation fell below an objective standard of reasonableness. Second, that the lawyer's errors were so serious as to deprive the defendant of a fair trial. In other words, the defendant must show that their lawyer's incompetence was the primary reason for their conviction, as opposed to the strength of the prosecution's evidence.
Signs of ineffective assistance of counsel include the lawyer's failure to interview important witnesses, investigate helpful evidence, convey a plea offer or advise on its consequences, or object to prejudicial or inadmissible evidence.
It is important to note that matters of tactics, such as which pieces of evidence to examine, are generally not considered matters that a lawyer must follow their client's instructions on. Therefore, this may not fall into the category of "incompetence".
In Florida, a post-conviction motion to raise an ineffective assistance of counsel claim must typically be filed within two years of the conviction. However, this time period may be extended if the defendant retained an attorney to file a post-conviction motion, and the attorney failed to do so due to their own negligence.
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Civil cases: Appealing due to incompetence
In the United States, the defendant may have grounds to appeal a criminal case on the basis of ineffective assistance of counsel. Under Strickland v. Washington, an ineffective-assistance claim requires the defendant to establish two facts: First, that the attorney made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant. Second, that the attorney's errors deprived the defendant of a fair trial.
However, the same does not apply to civil cases. The 6th Amendment applies only to criminal trials and not civil ones. Standards of performance for attorneys in civil cases are primarily handled by state law and professional standards via the bar association.
In the United Kingdom, a defendant in a criminal court case has the right to a fair trial and to have their defence presented to the court. This includes the right to have certain pieces of evidence presented. However, it is unclear whether incompetence or failure to follow instructions by the lawyer would be a basis for appeal in a civil case.
If you believe your lawyer failed to adequately represent you, you may be able to file a motion for post-conviction relief to challenge their representation of you. These claims are extremely complicated, and you will need the assistance of an experienced lawyer.
It is important to note that the above responses are not to be construed as legal advice. For specific information regarding your case, please consult a licensed attorney.
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Appealing due to failure to follow instructions
In the United States, a defendant may have grounds to appeal on the basis of ineffective assistance of counsel. Under Strickland v. Washington, an ineffective-assistance claim requires the defendant to establish two facts: first, that the attorney \"made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant", and second, that the attorney's errors "were so serious as to deprive the defendant of a fair trial".
To prove ineffective assistance of counsel, you must show that your lawyer's incompetence was the primary reason for your conviction, rather than the strength of the prosecution's evidence against you. This means demonstrating that your lawyer did something that no reasonable lawyer would do, such as failing to request the dismissal of a proceeding when the prosecution lacks enough evidence to convict you.
In the UK, both lawyers and clients are expected to abide by the instructions of the client, while also being granted the leeway to present the case in the manner they deem best. Simply defying the instructions of the client regarding which evidence to present is unlikely to be a basis for a successful claim of ineffective assistance of counsel.
In the US, ineffective assistance of counsel can usually only be raised in a collateral attack on a conviction, rather than on a direct appeal, although there are exceptions when the attorney's incompetence is apparent in the trial transcript. In Florida, claims for ineffective assistance of counsel cannot be raised in an appeal. You must wait until after your appeal is completed to file a post-conviction motion to raise this type of claim.
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Grounds for appeal: Ineffective assistance
In the United States, a defendant may have grounds for appeal based on ineffective assistance of counsel. This is supported by the Sixth Amendment, which guarantees the right to an attorney in criminal cases. To establish this, a defendant must prove two facts: first, that the attorney made errors so severe that they were not functioning as counsel; and second, that the errors were serious enough to deprive the defendant of a fair trial.
In the case of Strickland v. Washington (1984), the Supreme Court ruled that having an incompetent lawyer is comparable to having no lawyer at all, thus depriving the defendant of their right to due process. However, it is important to note that not all mistakes by an attorney will result in a new trial, as some errors may be considered harmless. To determine if a defendant has received ineffective assistance, the Supreme Court has developed a two-part test. Firstly, the defendant must demonstrate that their lawyer's performance fell below an objective standard of reasonableness, and second, that the lawyer's incompetence was the primary reason for their conviction, rather than the strength of the prosecution's case.
Signs of ineffective assistance of counsel may include the lawyer's failure to interview key witnesses, investigate helpful evidence, convey plea offers, or object to inadmissible evidence. It is worth noting that matters of tactics, such as which evidence to present, are generally not considered grounds for claiming incompetence.
If a defendant believes they are receiving ineffective assistance during their trial, they can make a motion, and the court may allow them to hire a new attorney. After a conviction, a defendant can file an appeal on the basis of ineffective assistance, and if successful, the court may grant a retrial or a new sentencing hearing.
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Appealing due to gross incompetence
In the United States, incompetence or ineffective assistance of counsel can be grounds for appealing a conviction. The Sixth Amendment guarantees defendants the right to an attorney and effective counsel during their trial and appeal. If a lawyer is ineffective or negligent, this deprives the defendant of their right to a fair trial.
To successfully appeal a conviction based on incompetence, defendants must demonstrate that their lawyer's incompetence was the primary reason for their conviction, rather than the strength of the prosecution's case. The defendant must show that their lawyer's representation fell below an objective standard of reasonableness and that their errors were so serious that they deprived the defendant of a fair trial.
Signs of ineffective assistance of counsel include:
- Failure to interview important witnesses or investigate helpful evidence
- Failure to convey a plea offer or adequately advise the defendant of the consequences of accepting it
- Failure to object to prejudicial or inadmissible evidence
- Failure to understand the value of a piece of evidence and act accordingly, such as by hiring an Expert Witness
In most cases, a post-conviction motion to raise an ineffective assistance of counsel claim must be filed within two years of the conviction. However, if the defendant retained an attorney to file a post-conviction motion, and they failed to do so due to their negligence, this time period may be extended. If the court accepts an ineffective counsel motion during the trial, they may appoint a new lawyer, who may request a retrial. If the appeal is granted, the court may vacate the conviction and order a new trial.
While incompetence can be grounds for appeal in criminal cases, it is less clear if this applies to civil cases. In the United Kingdom, for example, standards of performance for attorneys in civil cases are primarily handled by state law and professional standards.
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Frequently asked questions
Your lawyer’s errors or omissions must have affected the outcome or fairness of your trial or appeal or the reliability of the outcome. Signs of incompetence include failure to interview important witnesses or investigate helpful evidence, failure to convey a plea offer or advise you of the consequences of accepting it, and failure to object to prejudicial or inadmissible evidence.
The Court of Appeal has made it clear that only in extreme circumstances will they allow an appeal as a result of bad legal representation. You will need to show that not only were the legal team incompetent but that this incompetence led to identifiable issues in the trial which in turn made your conviction unsafe.
You can make a motion for ineffective assistance of counsel during your trial if you feel that your lawyer is not performing their duties. If the court grants your motion, you may be allowed to hire a new lawyer, who may then request a new trial. If the court of appeals grants an appeal based on ineffective assistance of counsel, the court may vacate your conviction and grant a new trial.
Usually, you only have 30 days to appeal a misdemeanour conviction and 60 days to appeal a felony. However, if you had ineffective counsel at trial, a court might be willing to accept a late notice of appeal. If your lawyer did not tell you about the possibility of appealing, or told you they were appealing but then didn’t follow through, the appeals court may be willing to accept a late notice of appeal.
In most cases, a post-conviction motion to raise an ineffective assistance of counsel claim must be filed within two years of your conviction or the mandate. However, this time period may be extended if your lawyer failed to file it due to their own negligence.
