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Ineffective Assistance of Counsel Appeals

Ineffective Assistance Claims

One common claim that people who have been convicted of crimes want to raise on appeal is what is called ineffective assistance of counsel. People charged with crimes are entitled, under both the Federal and State Constitutions, to the effective assistance of counsel. This is a very complicated area of the law, and ineffective claims are one of the most difficult appellate issues to succeed on. Generally, in order to gain a reversal of your conviction on this basis, you must establish two things: (a) deficiency, and (b) prejudice. You cannot win your appeal without proving both elements, and if the appellate court finds that one element cannot be met they will not even consider the other element.  

Deficient Performance

The first prong of this analysis requires the appellant (or person appealing their conviction) to prove that their trial lawyer performed deficiently in some respect. This means that the lawyer's performance fell below the standard of what a reasonable trial lawyer would have done under the circumstances. For various reasons, this is a big hurdle to overcome. 

Trial lawyers have many decisions to make during the course of trials. These include: the questions to ask on cross-examination, the defense to assert, the jury instructions to request, the witnesses to call on behalf of the defense and the evidence to seek exclusion of. The appellate courts will generally defer to the decisions made by trial lawyers. There are exceptions to this, of course. For example, a decision made by a trial lawyer must be informed by a reasonable investigation. Thus, a lawyer cannot decide not to call a particular witness if he or she has never even interviewed the witness to see what he or she might say. If a decision is made without a reasonable investigation, that decision is more likely to constitute deficient performance.

In this regard, the trial lawyer's testimony is oftentimes the lynchpin of an ineffective assistance claim. If the lawyer testifies to a reasonable strategic reason for having done or not done something, the ineffective assistance claim will typically fail. If the lawyer testifies that their decision was made on a misunderstanding of the law, this will usually constitute deficiency.  


This concept is better understood to mean harm. If the trial lawyer performed deficiently, the appellant must prove that he or she was harmed by such. Generally, this means that, absent the mistake made by the trial lawyer, there exists a reasonable probability that the outcome of the proceeding would have been different. 

If the evidence of guilt was overwhelming, any mistake made by the trial lawyer is less likely to have harmed the defendant. If the evidence was thin, mistakes made by a trial lawyer take on greater significance.

Although Georgia does not recognize what is called the cumulative error rule, for purposes of ineffective assistance of counsel claims the appellate courts must consider the cumulative prejudice suffered by a defendant. In other words, if there are multiple instances of the trial lawyer performing deficiently, the combined harm caused by these deficiencies is the relevant inquiry. 

If you have been convicted at trial and want to appeal the conviction, contact a Georgia Criminal Appellate Attorney at 404-985-9772.

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