Unreasonable Probability of Error

Authors

Jed Handelsman Shugerman, Boston University School of LawFollow

Author granted license

Creative Commons Attribution-NonCommercial-ShareAlike 4.0 International

Document Type

Article

Publication Date

11-2001

ISSN

0044-0094

Publisher

Yale Law School

Language

en-US

Abstract

In Strickland v. Washington, the Supreme Court sought to create a uniform standard to guarantee effective assistance of counsel to criminal defendants, to "ensure a fair trial," and to assure the reliability of "a just result."' Justice O'Connor's majority opinion created a two-pronged test for overturning a trial verdict: deficient performance and resulting prejudice. The Court explicitly established a difficult burden for proving deficient performance,² but set a moderate standard for prejudice as the "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." ³ The Court elaborated that this standard is lower than preponderance.⁴ Thus, for penalty-phase ineffectiveness claims, a defendant may establish prejudice without having to "show that counsel's deficient conduct more likely than not altered the outcome in the case." ⁵ For guilt-phase ineffectiveness, the standard drops from reasonable probability to reasonable doubt.

While Strickland may have been a good faith attempt to balance the right to counsel with judicial efficiency, the system still does not ensure reliability or justice.' One reason for this national crisis is that too many lower federal and state courts have consistently misinterpreted, misapplied, undercut, or ignored parts of Strickland. In Coleman v. State, the Indiana Supreme Court offered a disturbing example of this pattern, despite the U.S. Supreme Court's intervention. After analyzing Coleman and surveying the errors by courts around the country, I suggest ways to clarify Strickland and to improve its application, both in general and for death sentence cases.

Recommended Citation

Jed H. Shugerman, Unreasonable Probability of Error , in 111 Yale Law Journal 435 (2001).
Available at: https://scholarship.law.bu.edu/faculty_scholarship/3627