Ineffective assistance of counsel is an incredibly difficult burden for a criminal defendant to prove – “to establish a claim of ineffective assistance of counsel, the defendant must show that ‘counsel’s representation fell below an objective standard of reasonableness’ under prevailing professional norms and that there is a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” People v Gioglio, 296 Mich App 12 (2012), quoting Strickland v Washington, 466 US 668, 688, 694; 104 St Ct 2052; 80 L Ed 2d 674 (1984). People v Carver, unpublished per curiam opinion of the Court of Appeals, issued August 29, 2017 (Docket No 328157), deals with the issue of the defense attorney who had knowledge of an essential expert witness, but failed to utilize this expert. In Carver, the mother of the victim was bathing the child when she noticed a speck of blood on the wipe used for the victim. Slip op at 1. The victim then told her mother that her brother touched her, but then changed the story to identify the defendant as the person who touched her after the mother did not seem to believe the first statement. Slip op at 1.
Defendant was aware of an expert in child suggestibility which is the idea that when you suggest an answer that a child gave is incorrect they will give a different answer in hopes of appeasing the person asking the question. Slip op at 3. Even though this expert gave all of this information on child suggestibility, defense counsel chose not to call this expert as a witness. Defense counsel defended himself stating “he preferred to highlight the discrepancies between the victim’s various statements and emphasize that children can lie.” Slip op at 7. Defense counsel modeled his trial strategy around the fact that the story of the victim was continually changing. This is an appropriate trial strategy as long as the proper investigation was done to determine it to be the best strategy. Defense counsel gave testimony about his preparation for trial, which included: consulting with other lawyers from his firm, reviewing forensic interview protocols, and based on this chose to utilize his trial strategy he had developed. The problem with his strategy arose when he acknowledged that there were crucial aspects of the case that he had not investigated fully, “he could not state the distinction between a child lying and a child relating a false memory, and only knew one factor that implicated suggestibility.” Slip op at 8. This suggests that defense counsel had not properly investigated the issue because had he done so this distinction would have been easily identified and understood.
Shortcomings do not necessarily mean that there will be a valid claim for ineffective assistance of counsel. Not only must the defendant prove that counsel made professional error, but you also must show that the professional error caused an unfavorable result to the client. It was fairly easily proven that defense counsel did not properly investigate and hold himself to the objective professional standard. This unprofessional error could be harmless if there is a determination made that regardless of the error the outcome would have been the same.
The Court of Appeals held that the error may have changed the outcome of the case. With the testimony of an expert, defense counsel could have adequately argued that the child’s accusations were false and that the jury could have possibly resulted in a favorable outcome had this information been presented and argued. According to the Court of Appeals, “but for counsel’s unprofessional conduct the outcome could have been different.” Slip op at 12.
The reason this is such a hard burden to prove is generally counsel has the ability to determine what their strategy will be so long as they complete a full investigation into the circumstances surrounding the case. This is a sense of professional leeway allowing the attorney to decide with their professional judgment what the best approach to the case will be. This allowance is obtained through the many years of schooling, and professional conduct expected for a lawyer.