What Do You Have To Show For Ineffective Assistance?

Folks often call our office and ask what they have to show to prove that their lawyer was ineffective. In a federal criminal case, after a conviction, showing that your lawyer was ineffective may be the best path to overturn a conviction. In this short video, federal criminal defense attorney Matt Kaiser explains what you have to show in order to prove that your lawyer was ineffective.

Video Transcript:

What do you have to show to win an ineffective assistance of counsel challenge to a federal criminal conviction?

If you are going to bring a 2255 petition – a petition after you have been convicted and after any direct appeal has gone from a conviction in a federal district court – most of the time what you are complaining about, what you are raising in a 2255 petition is that your lawyer was ineffective. 

The Constitution guarantees you a right to an effective lawyer, if you are charged with a crime in Federal Court. and a 2255 is the way that most people have indicated that’s right, the way that most people make that right meaningful.  Although it's not quite as obvious as it might look. 

If you want to win a 2255, if you want to show that your lawyer was ineffective, you need to show two things. 

First you need to show that your lawyer didn’t perform as well as he should have.  For example, if a lawyer who is reasonably good at his job would go out and interview some witness to prepare for your case and your lawyer didn’t, and you can show that, then that’s how you can meet the first thing you have got to meet in order to win ineffective assistance of counsel claim.

The second thing you need to show for a 2255 is that that your lawyer’s error mattered. If your lawyer didn’t talk to this witness but if the lawyer had talked to the witness, the witness would have said X, Y and Z and would have been willing to come to court and if he came to court and said X, Y and Z something different would have happened in your case. 

So if your complaint is that my lawyer didn’t talk to this witness but that witness wouldn’t have said anything, we don’t know what that witness wouldn’t have said, that may not be the best basis for a 2255. It may not be the best basis for an ineffective assistance and counsel claim.

To bring a successful claim that your lawyer was ineffective when he or she was representing you, you have got to show those two things – that the lawyer didn’t meet the reasonable baseline for a lawyer in that area of the law and second that the lawyers failings mattered.
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