Whenever there is a unjust conviction in State of Michigan Courts, one of the questions that the Defendant and his or her family members raise is concerning the performance of defense counsel. Establishing that the defense lawyer made a mistake is not dispositive that an injustice occurred. Every trial may contain some amount of error. The court system recognizes that lawyers are human, and do not always try the perfect case. The issue to address is the degree of error that occurred.
The question of the existence of “ineffective assistance of counsel” can be a complex question. In People v. Armstrong, 490 Mich 281 (2011), the burden in Michigan is placed on the Defendant to show that defense counsel’s performance fell below an objective standard of reasonableness. Part of the consideration is to show that but for the deficient legal representation, a different result would have been reasonably probable. The mere possibility of a potential different verdict or outcome is insufficient. According to Harrington v. Richter, 562 US 86 (2011), the probability of a different outcome need only be “sufficient to undermine confidence in the outcome”.
What is an objective standard of reasonableness? No two cases are alike. When it comes to appellate proceedings or motions for relief from judgment, of course the transcripts of the previous court proceedings are paramount to the discussion. However, sometimes all of the answers to the lawyer’s performance are not part of the court record. For example, what if the Defendant provided his or her lawyer with an alibi witness who was never interviewed, listed on an alibi witness list, referenced during the trial, and/or called to testify at trial? How will a Court know if the record is silent to the error committed?