The Psychology of Hindsight and After-the-Fact Review of Ineffective Assistance of Counsel

Abstract

Strickland v. Washington tries to guarantee criminal defendants effective assistance of counsel by individually reviewing each defense lawyer's performance after-the-fact. Despite much terrible lawyering, courts rarely reverse convictions. Why? Behavioral psychology provides a key insight: Judges have difficulty reviewing individual lawyers' performance in hindsight. While the Supreme Court and some commentators have worried about the dangers of Monday-morning quarterbacking and 20/20 hindsight, they have overlooked the greater danger that in retrospect, convictions appear inevitable. Psychologists call this the inevitability or confirmatory bias. Strickland's vagueness and its refusal to lay down more specific guidelines for counsel exacerbate this problem by leaving plenty of room for the inevitability bias. The poor records surrounding guilty pleas further exacerbate the problem. The better solution is to move from case-by-case retrospective review to prospective efforts to improve indigent-defender systems, whether through structural-reform litigation or legislative change.

Keywords: Strickland, ineffective assistance, Sixth Amendment, psychology, hindsight, inevitable, defense counsel, appointed counsel, public defender, funding

JEL Classification: K14