Effective Assistance of Counsel Over the years, the Supreme Court has paid increasing attention to effective assistance of counsel. In general, defense representation must be effective for the Sixth Amendment to be satisfied. The Sixth Amendment does not explicitly state that effective assistance of counsel is required, but the Supreme Court has interpreted it this way. However, the right to effective assistance only applies where the right to counsel applies. For example, the Supreme Court has held that a defense attorney’s failure to file a timely discretionary appeal was not “ineffective” because the right to counsel does not extend to such appeals.18 Only where counsel is required can an ineffective assistance claim be made. Ineffective assistance claims can be filed against both retained and appointed counsel. For a time the Supreme Court held that nonindigent defendants who retained their own attorney were bound by that attorney’s representation (for better or worse) because there was no “state action” responsible for the ineffective representation. However, in Cuyler v. Sullivan,19 the Court held that privately retained counsel can be ineffective in the same way a public defender can.20 When Is Counsel Effective? What is effective assistance of counsel? The Supreme Court first tried to answer this question in the 1970 case of McMann v. Richardson.21 There, it held that counsel is effective when the legal advice is “within the range of competence demanded of attorneys in criminal cases.” 22 This standard was somewhat vague, so the Court offered clarification in Strickland v. Washington.23 In that case, the Court created a two-pronged test for determining effective assistance of counsel: • First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is unreliable.24 These two prongs have come to be known as the “performance prong” and the “prejudice prong.” Concerning performance, “The proper measure of attorney performance remains simply reasonableness under prevailing professional norms.”25 What are these “norms”? We discuss them further in the “Effective Assistance of Counsel” section that appears in this chapter, but some of the key elements of effective performance include: • • ■ Avoiding conflicts of interest ■ Advocating for the defendant • • ■ Bringing to bear “such skill and knowledge as will render the trial a reliable adversarial testing process”26 ■ “[Making] reasonable investigations or … [making] a reasonable decision that makes particular investigations unnecessary”27 As for the prejudice prong of Strickland, the defendant must prove that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.”28 In other words, it is not enough for counsel to be ineffective; if the defendant is to succeed in an argument that his or her Sixth Amendment right to counsel was violated, the defendant must prove that the attorney’s ineffectiveness prejudiced the case. This means that little mistakes probably won’t matter, but gross incompetence probably does. 
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