Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims

54 Pages Posted: 7 Nov 2006 Last revised: 25 Aug 2015


This Article suggests a structural reform that could solve two different problems in criminal defense representation. The first problem is that the right to effective trial counsel lacks a meaningful remedy. Defendants are generally not permitted to raise ineffective assistance of counsel claims until collateral review. Given that collateral review typically occurs years after trial, most convicted defendants have completed their sentences by that time and therefore have little incentive to pursue ineffectiveness claims. Moreover, there is no right to counsel on collateral review, and it is unrealistic to expect defendants to navigate the complicated terrain of an ineffectiveness claim without professional assistance. Left unchecked, attorney ineffectiveness grows at the trial level and contributes to the other problem in criminal defense representation—the waste of funds that states invest in appellate defense representation. All criminal defendants are constitutionally entitled to appellate counsel. However, judicial constraints on the claims that appellate attorneys may raise, coupled with trial counsel who fail to preserve issues for appellate review, routinely force appellate attorneys to file frivolous claims.

In this Article, I propose to solve both problems with a single structural reform. In limited circumstances, appellate attorneys should be able to open trial records in order to develop ineffective assistance of trial counsel claims. Defendants would then have a more realistic opportunity to challenge trial attorney performance, and appellate defenders would perform a more constructive role, making more efficient use of scarce appellate resources.

Suggested Citation

Primus, Eve Brensike, Structural Reform in Criminal Defense: Relocating Ineffective Assistance of Counsel Claims. Cornell Law Review, Vol. 92, p. 679, 2007, Available at SSRN:

Eve Brensike Primus (Contact Author)

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States

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