Appealing on the Basis of Ineffective Assistance of Counsel

Appealing on the Basis of Ineffective Assistance of Counsel

If you have been convicted of a crime and believe your lawyer did not provide adequate representation, you may be able to appeal your conviction on the grounds of ineffective assistance of counsel. This article will explain what ineffective assistance of counsel is, when you can make this appeal, and how the appeal process works.

What is Ineffective Assistance of Counsel?

Ineffective assistance of counsel refers to when a defense lawyer fails to provide competent legal representation to their client. The 6th Amendment of the U.S. Constitution guarantees criminal defendants the right to effective assistance of counsel.

To prove ineffective assistance of counsel, you must show:

  • Your lawyer’s performance was deficient – they made errors so serious that they were not functioning as legal counsel should. Examples could include not investigating your case properly, not calling key witnesses, not objecting to inadmissible evidence, or not informing you of plea bargain offers.
  • The deficient performance prejudiced your defense – there is a reasonable probability that but for your lawyer’s errors, the result of your trial would have been different.

It is not enough to just show your lawyer made mistakes – you have to show those mistakes impacted the outcome of your case. The bar for proving ineffective assistance is high.

When Can You Make This Appeal?

You can raise an ineffective assistance claim at various stages:

  • Direct appeal – immediately after your conviction, you can claim your trial lawyer was ineffective. However, the trial record may not provide enough evidence to support the claim at this stage.
  • State post-conviction relief – after your direct appeal, you can file a petition in state court claiming ineffective assistance. At this stage, you can present new evidence outside the trial record.
  • Federal habeas corpus – after state remedies are exhausted, you can file a habeas petition in federal court reasserting your ineffective assistance claim.
  • Clemency petition – request the governor pardon you or commute your sentence based on ineffective assistance.

The appeal should be made as early as possible, but sufficient time is needed to properly investigate and document your lawyer’s errors.

What Kinds of Lawyer Errors Can Constitute Ineffective Assistance?

There are many types of mistakes your lawyer could have made that may form the basis of an ineffective assistance appeal. Some examples include:

  • Failing to investigate your case properly or call key witnesses who could have provided helpful testimony. Your lawyer has a duty to make reasonable investigations into your case.
  • Not informing you of a favorable plea bargain offered by the prosecution. You have a right to make an informed decision about plea offers.
  • Failing to make important objections regarding admissible evidence. Allowing improper evidence to be admitted could sway the jury against you.
  • Not properly preparing for trial, developing a coherent defense strategy, or presenting your best defense.
  • Missing deadlines for filing important motions and appeals that could have benefited your case.
  • Having an actual conflict of interest that compromised their ability to represent you.
  • Failing to adequately cross examine prosecution witnesses to undermine their credibility.
  • Not requesting jury instructions that were critical to your defense.
  • Submitting an inadequate brief on appeal that failed to raise key issues.

Again, you must not only prove your lawyer’s performance was deficient, but also show how it impacted the outcome.

What Are the Pros and Cons of Appealing for Ineffective Assistance?

Potential Pros:

  • Your conviction could be overturned and a new trial granted if your appeal is successful.
  • Ineffective assistance could result in your charges being reduced or dismissed without a retrial.
  • You may be able to negotiate a more favorable plea bargain.
  • If you prove ineffective assistance at sentencing, you could be re-sentenced to a lesser penalty.
  • It brings attention to injustices and holds the legal system accountable.

Potential Cons:

  • The appeal process is time-consuming and your conviction stands in the meantime.
  • Ineffective assistance claims are very hard to prove. Courts give great deference to trial lawyers.
  • If you lose the appeal, it could negatively impact your changes in future appeals.
  • A retrial carries risks – no guarantee the outcome will be better the second time around.
  • Lawyers and expert witnesses for appeals can be very expensive.

Should You Appeal a Conviction Based on Ineffective Assistance?

There are several factors to weigh when deciding if appealing for ineffective assistance of counsel is the right move:

  • Strength of your case – how clear-cut and provable are your lawyer’s errors and their impact? The stronger your evidence, the better chance of success.
  • Seriousness of charges – appealing is more attractive if a retrial could significantly reduce your sentence exposure.
  • Lawyer’s advice – what does your new lawyer recommend after reviewing your case? Their expertise is invaluable.
  • Timing issues – do you risk running up against deadlines by waiting to gather more evidence?
  • Financial resources – appeals can be costly. Do you have funds to hire experts and investigators? Is there any chance attorneys will work pro bono?
  • Personal factors – your desire for justice, risk tolerance, and family obligations may sway your decision.
  • Likelihood of success – make sure the potential benefits outweigh the risks and costs involved.

Thoroughly discuss all these factors with your new lawyer before deciding whether to appeal your conviction due to ineffective assistance of counsel. With sound legal advice and strong evidence, you may be able to overturn your conviction if your right to effective counsel was violated.

Finding a Lawyer to Handle Your Ineffective Assistance Appeal

If you believe you have grounds for an ineffective assistance claim, it is crucial to find an appellate lawyer who is experienced with appeals specifically based on ineffective counsel. Things to look for:

  • A strong track record handling these types of appeals. Ask about their success rate.
  • Extensive knowledge of case law regarding ineffective assistance claims.
  • Ability to identify viable issues by reviewing trial records.
  • Resources to conduct in-depth investigations to uncover evidence outside the trial record.
  • Skill at presenting compelling arguments and evidence in petitions and hearings.
  • Appellate experience before courts at both the state and federal level.
  • Affordable fees and possible alternative payment arrangements.
  • Good communication skills to explain the complex appeals process.

Do not rely on your trial lawyer or public defender for an ineffective assistance appeal, as they have a conflict of interest. Be sure to vet appellate lawyers thoroughly.


Appealing a conviction or sentence on grounds of ineffective assistance of counsel is a complex process with strict legal standards. But it may be an option if egregious errors by your lawyer resulted in substantial prejudice against you. Thoroughly discuss your case with a seasoned criminal appellate attorney before embarking on an ineffective assistance claim. With sound legal advice and strong evidence, you may be able to overturn your conviction if your right to effective counsel was violated.