Free tool · Criminal Procedure
Ineffective Assistance of Counsel: Strickland Test
A defendant has the right to the effective assistance of counsel. To prove that it was violated, the defendant must show two things (Strickland v Washington): that counsel’s performance was deficient, falling below an objective standard of reasonableness, and that the deficiency prejudiced the defence, meaning a reasonable probability that the result would have been different. Courts presume that counsel acted reasonably and avoid hindsight. In some situations prejudice is presumed, such as when counsel was absent at a critical stage or had an actual conflict of interest. Enter the facts to see how the claim fares.
Tool · Ineffective Assistance Checker
An ineffective assistance claim is likely to succeed on these facts, subject to the strong presumption of competence.
Deficient performance: Counsel’s representation fell below an objective standard of reasonableness measured against prevailing professional norms, for example by failing to investigate, to file a key motion, to advise on a plea offer or to tell a noncitizen client of deportation risks (Padilla v Kentucky).
Prejudice: In a plea case, the defendant must show a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial (Hill v Lockhart), or, if counsel’s bad advice led him to reject a favourable offer, that the offer would have been accepted and the result would have been less severe (Lafler v Cooper; Missouri v Frye).
- Under Strickland v Washington the defendant must show both deficient performance and prejudice. Courts presume that counsel’s conduct falls within the wide range of reasonable professional assistance, and avoid hindsight.
- In federal habeas review of a state conviction, a claim must also overcome AEDPA: the state court’s decision must have been an unreasonable application of clearly established law, so review is doubly deferential (Harrington v Richter).
Tests a claim that a defense lawyer’s performance violated the Sixth Amendment: Strickland’s two prongs (deficient performance and prejudice), the situations in which prejudice is presumed (Cronic, and an actual conflict of interest), plea bargaining and appeals, and the extra deference in federal habeas review. Simplified federal doctrine. A teaching aid, not a prediction and not legal advice. Runs in your browser; nothing is stored or sent.
How to use it
- Say at what stage the problem arose: trial, plea bargaining or appeal.
- Say how counsel’s performance compares with professional norms.
- Say whether prejudice can be shown, or whether counsel was absent or conflicted.
- Say whether the claim is in federal habeas, and read the result.
Common questions
What is the Strickland test?
Deficient performance and prejudice. The defendant must prove both, and courts give counsel the benefit of a strong presumption of competence.
Does it apply to plea bargaining?
Yes. Counsel must give competent advice on plea offers and on the consequences of a plea, including deportation risks for noncitizens (Padilla v Kentucky). In a plea case, prejudice means a reasonable probability that the defendant would have gone to trial.
When is prejudice presumed?
When counsel was completely absent at a critical stage, entirely failed to test the prosecution’s case, or labored under an actual conflict of interest that affected performance.
Learn the law behind the tool
This tool is part of our Criminal Procedure course, with lectures, concept maps, flashcards, interactive exercises and a capstone case. Criminal Procedure: The Sixth Amendment.
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General information, simplified, mainly on American law, not legal advice. States and countries differ, and real cases turn on facts that a tool cannot capture.