Proving Prejudice for Ineffective Assistance Claims After Frye

5 Pages Posted: 25 Oct 2012

See all articles by Carissa Byrne Hessick

Carissa Byrne Hessick

University of North Carolina School of Law

Date Written: October 1, 2012


The Supreme Court’s recent decision in Missouri v. Frye has been widely described as benefiting criminal defendants. While Frye expanded the pool of defendants who are eligible to bring ineffective assistance claims to those who were deprived of a favorable plea bargain, it may have made it more difficult for those defendants to prevail on those claims by increasing the necessary showing of prejudice. In particular, the Frye Court indicated that a defendant must demonstrate not only that she would have accepted the plea deal, but also that 'the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it.' This language may encourage lower courts to raise the bar for defendants claiming ineffective assistance. As this short commentary demonstrates, a number of federal courts have imposed heightened prejudice standards on defendants claiming ineffective assistance at sentencing. The prejudice language in Frye may help to solidify what appears to be a broader trend of defendants being asked to prove too much to establish prejudice.

Keywords: ineffective assistance, right to counsel, sentencing, prejudice

Suggested Citation

Hessick, Carissa Byrne, Proving Prejudice for Ineffective Assistance Claims After Frye (October 1, 2012). Federal Sentencing Reporter, Vol. 5, December 2012. Available at SSRN:

Carissa Byrne Hessick (Contact Author)

University of North Carolina School of Law ( email )

Van Hecke-Wettach Hall, 160 Ridge Road
CB #3380
Chapel Hill, NC 27599-3380
United States

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