Sixth Amendment:
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
[T]he right to counsel is the right to the effective assistance of counsel.
1 This right to effective assistance has two aspects. First, a court may not restrict defense counsel in the exercise of the representational duties and prerogatives attendant to our adversarial system of justice.2 Second, defense counsel can deprive a defendant of effective assistance by failing to provide competent representation that is adequate to ensure a fair trial,3 or, more broadly, a just outcome.4 The right to effective assistance may be implicated as early as the appointment process. Cases requiring appointment of counsel for indigent defendants hold that, as a matter of due process, the assignment of defense counsel must be timely and made in a manner that affords effective aid in the preparation and trial of the case.
5 The Sixth Amendment also is implicated when a court appoints a defendant's attorney to represent his co-defendant as well, where the co-defendants are known to have potentially conflicting interests.6
Restrictions on representation imposed during trial also have been stricken as impermissible interference with defense counsel. The Court invalidated application of a statute that empowered a judge to deny final summations before judgment in a nonjury trial: The right to the assistance of counsel … ensures to the defense in a criminal trial the opportunity to participate fully and fairly….
7 And, in Geders v. United States,8 the Court held that a trial judge’s order preventing a defendant from consulting his counsel during a 17-hour overnight recess between his direct and cross-examination, to prevent tailoring of testimony or coaching,
deprived the defendant of his right to assistance of counsel and was invalid.9 Other direct and indirect restraints upon counsel have been found to violate the Amendment.10 Government investigators also are barred from impermissibly interfering with the relationship between defendant and counsel.11
Additionally, the Sixth Amendment's right to effective assistance attaches directly to the fidelity and competence of defense counsel's services, regardless of whether counsel is appointed or privately retained or whether the government in any way brought about the defective representation. The vital guarantee of the Sixth Amendment would stand for little if the often uninformed decision to retain a particular lawyer could reduce or forfeit the defendant's entitlement to constitutional protection.
12 To an argument that a state need only appoint for indigent defendants to satisfy Sixth Amendment requirements, the Court responded that the State's conduct of a criminal trial itself implicates the State in the defendant's conviction
, and no state may proceed against a defendant whose counsel, appointed or retained, cannot defend him fully and faithfully.13
Fidelity has been at issue in cases of joint representation of codefendants. In Glasser v. United States, the Court found a trial judge erred in appointing one defendant's attorney to also represent a codefendant in a conspiracy case; the judge knew of potential conflicts of interest in the case, and the original defendant had earlier expressed a desire for sole representation.14 Counsel for codefendants in another case made a timely assertion to the trial judge that continuing joint representation could pose a conflict of interest, and the Court found that the trial judge erred in not examining the assertion of potential conflict closely and permitting or appointing separate counsel, absent a finding that the risk of conflict was remote.15 Joint representation does not deny effective assistance per se, however. Judges are not automatically required to initiate an inquiry into the propriety of multiple representation, being able to assume in the absence of undefined special circumstances
that no conflict exists. On the other hand, a defendant who objects to joint representation must be given an opportunity to make the case that potential conflicts exists. Absent an objection, a defendant must later show the existence of an actual conflict of interest which adversely affected his lawyer’s performance.
Once it is established that a conflict did actively affect the lawyer’s joint representation, however, a defendant need not additionally prove that the lawyer's representation was prejudicial to the outcome of the case.16
As to attorney competence, although the Court touched on the question in 1970,17 it did not articulate a general Sixth Amendment standard for adequacy of representation until 1984 in Strickland v. Washington .18 There are two components to the Strickland test: deficient representation and resulting prejudice to the defense so serious as to bring the outcome of the proceeding into question.19 The gauge of deficient representation is an objective standard of reasonableness under prevailing professional norms
that takes into account all the circumstances
and evaluates conduct from counsel's perspective at the time.
20 Providing effective assistance is not limited to a single path. No detailed rules or guidelines for adequate representation are appropriate: Any such set of rules would interfere with the constitutionally protected independence of counsel and restrict the wide latitude counsel must have in making tactical decisions.
21
Because even the most highly competent attorneys might choose to defend a client differently, [j]udicial scrutiny of counsel’s performance must be highly deferential.
22 Counsel's obligation is a general one: to act within the wide range of legitimate, lawful, and reasonable conduct.23 [S]trategic choices made after thorough investigation of relevant law and facts . . . are virtually unchallengeable,
24 as is a reasonable decision that makes particular investigations unnecessary,
har25 or a reasonable decision selecting which issues to raise on appeal.26 In Strickland itself, the allegation of ineffective assistance failed: The Court found that the defense attorney’s decision to forgo character and psychological evidence in a capital sentencing proceeding to avoid rebuttal evidence of the defendant’s criminal history was the result of reasonable professional judgment.
27
On the other hand, defense counsel does have a general duty to investigate a defendant's background, and limiting investigation and presentation of mitigating evidence must be supported by reasonable efforts and judgment.28 Also, even though deference to counsel's choices may seem particularly apt in the unstructured, often style-driven arena of plea bargaining,29 an accused, in considering a plea, is clearly entitled to advice of counsel on the prospect of conviction at trial and the extent of punishment that might be imposed. Thus, in Lafler v. Cooper , the government conceded that the deficient representation part of the Strickland test was met when an attorney erroneously advised the defendant during plea negotiations that the facts in his case would not support a conviction for attempted murder.30
Moreover, in Padilla v. Kentucky , the Court held that defense counsel's Sixth Amendment duty to a client considering a plea goes beyond advice on issues directly before the criminal court to reach advice on deportation.31 Because of its severity, historical association with the criminal justice system, and increasing certainty following conviction and imprisonment, deportation was found to be of a unique nature
: the Court pointedly stated that it was not addressing whether distinguishing between direct and collateral consequences of conviction was appropriate in bounding defense counsel's constitutional duty in a criminal case.32 Further, the Court held that defense counsel failed to meet prevailing professional norms in representing to Padilla that he did not have to worry about deportation because of the length of his legal residency in the U.S. The Court emphasized that this conclusion was not based on the attorney's mistaken advice, but rather on a broader obligation to inform a noncitizen client whether a plea carries a risk of deportation.33 Silence is not an option. On the issue of prejudice to Padilla from ineffective assistance, the Court sent the case back to lower courts for further findings.34
What constitutes prejudice from attorney error, the second Strickland requirement, has proved to be a more difficult issue, and one that gained additional doctrinal salience after Lafler and Frye .35 The touchstone of prejudice
under Strickland is that the defendant must show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.
36 Nevertheless, defendants frequently fall short on the prejudice requirement, with the Court posing it as a threshold matter and failing to find how other representation could have made a significant difference.37
Beyond Strickland ’s reasonable probability of a different result
starting point, there are issues of when an outcome determinative
test alone suffices, what exceptions exist, and whether the general rule should be modified. In Lockhart v. Fretwell , the Court appeared to refine the Strickland test when it stated that an analysis focusing solely on mere outcome determination
is defective
unless attention is also given to whether the result was fundamentally unfair or unreliable.
38 However, the Court subsequently characterized Lockhart as addressing a class of exceptions to the outcome determinative
test, and not supplanting it. According to Williams v. Taylor , it would disserve justice in some circumstances to find prejudice premised on a likelihood of a different outcome.39 An overriding interest in fundamental fairness precluded a prejudice finding in Lockhart , for example, because such a finding would be nothing more than a fortuitous windfall for the defendant. As another example, it would be unjust to find legitimate prejudice in a defense attorney's interference with a defendant's perjured testimony, even if that testimony could have altered a trial's outcome.40
A second category of recognized exceptions to the application of the outcome determinative
prejudice test includes the relatively limited number of cases in which prejudice is presumed. This presumption occurs when there are circumstances that are so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.
41 These situations, the Court explained in United States v. Cronic , involve some kind of breakdown of the adversarial process,
and include actual or constructive denial of counsel, denial of such basics as the right to effective cross-examination, or failure of counsel to subject the prosecution’s case to meaningful adversarial testing.42 Moreover, prejudice is presumed when counsel’s constitutionally deficient performance deprives a defendant of an appeal that he otherwise would have taken.
43 Apart from circumstances of that magnitude, however, there is generally no basis for finding a Sixth Amendment violation unless the accused can show [prejudice],
44 and consequently most claims of inadequate representation continue to be measured by the Strickland standard.45
Limits on the Role of the Attorney
While the Sixth Amendment guarantees the right of assistance of counsel, that right does not require the defendant to surrender control entirely to his representative.46 Defense counsel's central province is in trial management, providing assistance in deciding what arguments to make, what evidentiary objections to raise, and what evidence should be submitted.47 At the same time, the accused has the ultimate authority to make certain fundamental decisions regarding the case,
including whether to plead guilty, waive a jury, testify in his or her own behalf, or take an appeal.
48 Such decisions are for the criminal defendant to make notwithstanding the defendant's own inexperience or lack of professional qualifications.49 Allowing counsel to usurp such decisions from the accused violates the Sixth Amendment's right to counsel, amounting to a structural error that obviates any need to inquire into whether the criminal defendant was prejudiced in any way.50
In this vein, the Court held in McCoy v. Louisiana that a criminal defendant's choice to maintain his innocence at the guilt phase of a capital trial was not a strategic choice for a counsel to make, notwithstanding the counsel's view that confessing guilt offered the best chance to avoid the death penalty.51 Instead, Justice Ginsburg, writing on behalf of the Court, viewed such a decision as a fundamental choice about the client's objectives for the criminal proceeding.52 More specifically, while acknowledging that counsel may reasonably assess a concession of guilt as best suited to avoiding the death penalty,
the Court noted that a criminal defendant may not share the objective of avoiding such a punishment and instead may wish, above all else, to avoid admitting guilt or living the rest of his life in prison.53 Because the Sixth Amendment requires the assistance of counsel, the McCoy Court concluded that a lawyer cannot concede his client's guilt and must instead assist in achieving his client's express objective to maintain his innocence of the charged criminal acts.54