Dreaming of Effective Assistance: The Awakening of Cronic's Call to Presume Prejudice from Representational Absence

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Publication Title

Temple Law Review

Journal Abbreviation

Temp. L. Rev.


Most claims of ineffective assistance of counsel analyzed under Strickland v. Washington fail because defendants are unable to prove that they were prejudiced by defense counsel's deficient performance. Examining three federal appellate decisions involving lawyers who slept during trial, the article constructs a working test for presuming prejudice when a lawyer has been categorically non-functional. The test evolves from United States v. Cronic, which holds that prejudice to a defendant should be presumed when there has been a constructive denial of counsel. The article engages in a detailed investigation of several key terms from Cronic, including "constructive denial," "absence," and "meaningfully adversarial testing." Additionally, the article proposes several applications of the test to cases in which a defense lawyer remained silent throughout an entire trial or was affected by a severe mental disorder or drug impairment. In doing so, the article offers an original examination of Cronic, while defining a flexible, practical standard for evaluating claims of ineffectiveness based on representational absence.

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Publication Date

Winter 2003