The Adversary System, Advocacy, and Effective Assistance of Counsel in Criminal Cases


Some lawyers make a profound difference. Whether a criminal defendant goes to prison may depend on her lawyer’s knowledge and skill. Moreover, the convicted defendant’s degree of liability and the severity of her punishment can turn on the quality of her lawyer. In a capital case, a defendant’s execution may be a matter the lawyer, like Lady Macbeth, cannot wash from her hands.

The failings and inadequacies of defense counsel, however, should not help to satisfy the prosecution’s burden of proving guilt, or of establishing appropriate liability and punishment. Criminal defendants should suffer conviction and prison or execution solely because of their properly proven crimes.Since so much depends on attorney competence, our laws and policies should attempt to ensure that attorneys are, in fact, competent. A constitutional standard defining adequate criminal defense attorney performance is one way to further attorney competence.

In two 1984 cases, United States v. Cronic and Strickland v. Washington, the United States Supreme Court addressed the question of effective assistance of counsel in criminal cases. The Court established a new, but relatively weak, constitutional effective assistance standard and set forth detailed rules for its application.

This article examines the Court’s new constitutional standard and its related rules, exploring their theoretical and practical implications. I conclude that the new standard, based solely on due process considerations, offers relief to some defendants who suffer because of counsel’s inadequate performance, but by no means reaches all meritorious claims. While Cronic and Strickland will help lower courts resolve ineffective assistance claims by giving them a uniform standard to apply, the two decisions do not solve the systemic problem of ineffective assistance of counsel. The Court’s new rules provide no practical guidance to criminal defense attorneys and do nothing to improve the quality of criminal defense.

As an alternative to the Court’s rules, I propose effective assistance standards based on advocacy norms derived from both due process and equal protection guarantees. Only by addressing equal protection as well as due process concerns can an effective assistance standard protect the reliability and accuracy of trial court results. Unlike the Cronic-Strickland rules, such standards would impose minimum, specific defense attorney obligations.

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