Drink, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement

51 Pages Posted: 8 Nov 2007

Abstract

This Article examines the Sixth Amendment Right to Counsel and ineffective assistance of counsel claims in the context of cases where attorneys are intoxicated, are under the influence of drugs, or are sleeping during a trial. In some cases, indigent criminal defendants are not provided competent appointed counsel, and sometimes they are not even appointed attorneys who remain alert or sober during trial. Although a line of cases, including Strickland v. Washington, guarantee a right to effective assistance of counsel, the test from Strickland has been criticized as allowing poor representation of indigent defendants because it creates a presumption that counsel was competent and places the burden of showing prejudice upon the defendant.

The Article discusses cases involving intoxicated, impaired and sleeping counsel and proposes a new standard for such cases. The Article begins with a brief history of the right to counsel in the United States and of the development of the right to effective assistance of counsel. In the next section, the Article discusses exceptions to the Strickland v. Washington ineffective assistance of counsel test and what those exceptions have in common. In the next section the Article examines the cases involving ineffective assistance of counsel claims where counsel was sleeping or otherwise mentally impaired. Then the Article examines the existing framework of the Strickland test and its exceptions. It specifically addresses the mental impairment cases in the context of this framework and proposes a standard for cases involving sleeping counsel and a standard for cases involving counsel who abuse drugs or alcohol during trial.

Keywords: Sixth Amendment, right to counsel, ineffective assistance, effective assistance, sleeping lawyers, strickland, prejudice, impaired attorneys

JEL Classification: K14, K10, K40

Suggested Citation

Kirchmeier, Jeffrey L., Drink, Drugs, and Drowsiness: The Constitutional Right to Effective Assistance of Counsel and the Strickland Prejudice Requirement. Nebraska Law Review, Vol. 75, No. 3, 1996. Available at SSRN: https://ssrn.com/abstract=1028419

Jeffrey L. Kirchmeier (Contact Author)

CUNY School of Law ( email )

2 Court Square
Long Island City, NY 11101
United States

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