Written by attorney Robert J McCarthy Jr

Seeking a new trial based upon ineffective assistance counsel

Have you gone through a trial and lost? Are you thinking that your lawyer probably could have done a better job? If you answered yes to these questions then you’re probably considering seeking a new trial based upon ineffective assistance counsel. In order to prevail on an ineffective assistance of counsel claim you'll have to overcome some obstacles. First, ineffective assistance claims are not reviewable in for the first time on appeal absent extraordinary circumstances. Care and Protection of Stephen, 401 Mass. 144, 150 (1987). This means that someone must have brought the issue of ineffective assistance up to the trial judge hearing the matter. If the claim wasn't brought up to the judge at trial, it will be necessary to bring a post trial motion before the trial judge alleging ineffective assistance.

The purpose of requiring a motion for new trial is to allow the trial judge to resolve factual disputes regarding trial counsel's purported errors. Commonwealth v. Saferian, 366 Mass. 89, 90 n. 1 (1974). The requirement thus calls for an evidentiary hearing at which the movant would point out to the trial judge some issue of fact or law that could have been, but was not exploited by counsel in the original proceedings. Saferian at 98. The opposing party would then have the opportunity to present rebuttal evidence, perhaps including testimony from the allegedly ineffective lawyer. Commonwealth v. Bernier, 359 Mass. 13, 15 (1971).

Once the trial record makes reference to the allegation of ineffective assistance, the matter may be brought to the attention of the Appeals Court as a legitimate appellate issue. On appeal the issue becomes whether trial counsel’s representation fell measurably below that which might be expected from an ordinarily fallible lawyer. Again this is a difficult hurdle to overcome.

Although parties to are entitled to effective assistance of counsel, this right is not an assurance of brilliant representation or one free of mistakes. Delle Chiaie v. Commonwealth, 367 Mass. 527, 536 (1975). It is not enough to show that counsel's errors had some conceivable effect on the outcome of the proceeding. Virtually every act or omission of counsel has some conceivable effect and not every act that could have influenced the outcome undermines the reliability of the result of the proceeding. Strickland v. Washington, 466 U.S. 668, 693 (1984).

Thus, the question of the effectiveness of counsel must be considered with reference to the circumstances of the case. Saferian at 98 (assistance of counsel not properly considered in the abstract). Finally, even if an appellant can demonstrate that trial counsel’s actions fell measurably below that which might be expected from an ordinarily fallible lawyer, Appellant must lastly demonstrate that he/she was deprived of an otherwise available substantial ground of defense because of those actions. In other words, the appellant has to establish that their attorney was inept, that because of that ineptness they were deprived of an available defense, and if that available defense was used, the appellant would have in all likelihood won the case at trial.

*The above information is very general in nature and should not be considered or relied upon as legal advice. The above information may also not be based upon the law of the jurisdiction in which you reside. If a reader has a legal problem immediately consult an attorney for specific legal advice. See the disclaimer at the bottom of the page for more information.

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