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Columbia Law Review



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Assistance of counsel, Sixth Amendment, harmless error, ineffective assistance of counsel, prejudice requirement


The sixth amendment provides that in all criminal prosecutions the accused shall enjoy the right "to have the Assistance of Counsel for his defence." The Supreme Court has construed this clause to guarantee to criminal defendants the "effective" assistance of counsel performing within a minimum standard of competency. Prevalent lower court interpretations of the right. to effective assistance require a showing that counsel's inadequate performance caused actual prejudice to the defendant's interest in obtaining an acquittal. Because most defendants are unable to demonstrate the actual impact upon the outcome of their trial of an attorney's departure from normal competency, courts infrequently grant relief for claims of ineffective assistance. Recently, the requirement of actual prejudice has come under attack as a vestige of due process analysis of the right to counsel inappropriate to the trial rights guaranteed by the sixth amendment. After tracing the due process origins of current standards for evaluating ineffectiveness claims, this Note suggests that the prejudice requirement is not responsive to the broader interests protected by the sixth amendment. It then examines the various rationales for a showing of actual prejudice and concludes that the requirement is not compelled by Supreme Court precedent, the congruence between the sixth amendment and due process rights to counsel, institutional considerations, or the "harmless error" rule. In place of current standards, the Note develops a functional analysis, derived from the Supreme Court's approach to related constitutional problems, that evaluates ineffectiveness claims in accordance with the potential for substantial prejudice to specific interests protected by the sixth amendment. Finally, this analysis is applied to claims of ineffectiveness of defense attorneys in their roles as advocate, advisor, and intermediary on behalf of the accused.


This article originally appeared in 80 Colum. L. Rev. Forum 1053 (1980). Reprinted by permission.