Ineffective assistance of counsel is a contributing factor to many wrongful convictions. The term is used to describe a violation of a criminal defendant’s 6th Amendment right to counsel. Ineffective assistance of counsel can include failure to: investigate, call a witness, cross-examine a state witness, question an eyewitness identification, seek DNA testing, present an expert witness, object to prosecutor arguments, prepare for trial or report a conflict of interest.

Defendants who believe they have received inadequate assistance of counsel can make that legal claim at different points in the judicial process, including post-conviction. Case law defines the standards a court uses for deciding whether a defendant has a valid claim of ineffective assistance of counsel. Not all bad lawyering rises to the level of meeting those standards.


A 2010 report found that claims of ineffective assistance of counsel were made in 21 percent of the first 225 DNA exonerations.1 In the most egregious cases, defense counsel was asleep or drunk in court, was disbarred shortly after finishing a case, or failed to show up for a trial.

Sample Cases
NCIP exoneree Armando Ortiz was 16 years old when he was arrested for a double murder. His juvenile court attorney found nine alibi witnesses who placed Ortiz at a party at the time of the murders. When Ortiz’s case was transferred to adult court, he was appointed a new attorney who ignored the overwhelming alibi evidence and put on virtually no defense. Although no physical evidence tied Ortiz to the murder scene and the circumstantial evidence was weak, a jury convicted him of the murders, two related robberies and an unrelated assault. He was sentenced to two terms of life in prison. Appellate attorneys uncovered the evidence of the alibi and referred Ortiz’s case to NCIP. NCIP attorneys and students convinced a judge to overturn Ortiz’s murder and robbery convictions based on ineffective assistance of counsel.

NCIP exoneree Maurice Caldwell spent more than 20 years in prison for a murder he did not commit. The murder occurred on June 30, 1990 in Caldwell’s San Francisco neighborhood. Caldwell was convicted of second-degree murder based solely on the eyewitness identification by a neighbor who had been influenced by law enforcement to make the identification. On December 16, 2010, the San Francisco Superior Court granted a writ of habeas corpus filed by NCIP. The court ruled that Caldwell’s defense attorney had been ineffective in failing to pursue evidence of innocence and that had his defense attorney been effective, there was a reasonable probability that the jury would have acquitted Caldwell. The San Francisco District Attorney’s Office dismissed the case, and on March 28, 2011, Caldwell was released from prison.

Policy Reform
A 2016 study of the costs of wrongful convictions, errors and failed prosecutions in California notes that ineffective assistance of counsel accounted for 11% of errors and 12% of costs, which totaled more than $282 million.2

Limited public funds for defense counsel can result in overburdened public defenders with inadequate resources to do their jobs fully. The California Commission on the Fair Administration of Justice, in its 2008 report, emphasized that many of the other causes of wrongful conviction could be avoided if defense counsel had the resources to zealously and competently investigate, prepare for and try each case. This report calls for oversight organizations to ensure high-quality public defense and for increased funding for defense services.3


1 West, Emily. Court Findings of Ineffective Assistance of Counsel Claims in Post-conviction Appeals Among the First 225 DNA Exoneration Cases. New York, NY: Innocence Project, 2010. Available at: http://www.innocenceproject.org/files/Innocence_Project_IAC_Report.pdf.

2 Silbert, Rebecca et al. “Criminal (In)justice: A Cost Analysis of Wrongful Convictions, Errors and Failed Prosecutions in California’s Criminal Justice System.” Faculty Scholarship Paper 1635. Philadelphia, PA: UPenn School of Law, 2016. Available at: http://scholarship.law.upenn.edu/faculty_scholarship/1635/

3 California Commission on the Fair Administration of Justice: Final Report. Santa Clara, CA: California Commission on the Fair Administration of Justice, 2008, p. 91. Available at: http://digitalcommons.law.scu.edu/cgi/viewcontent.cgi?article=1000&context=ncippubs.