Using the Federal Rules of Evidence’s Rules Regarding Expert Testimony to Demand a Higher Standard for Effective Assistance of Counsel

By: Samuel Goldsmith

The constitutional standard for ineffective assistance of counsel is too strict. In setting the standard, the Supreme Court in Strickland v. Washington hoped to keep courts from meddling in attorneys’ strategic decisions. In the process, the Court went too far. Defendants have felt the brunt of criminal punishment despite having been represented by inept lawyers. Courts have rejected ineffective assistance of counsel claims when “defense counsel slept during portions of the trial, where counsel used heroin and cocaine throughout the trial, where counsel allowed his client to wear the same sweatshirt and shoes in court that the perpetrator was alleged to have worn on the day of the crime, where counsel stated prior to trial that he was not prepared on the law or the facts of the case, and where counsel appointed in a capital case could not name a single Supreme Court decision on the death penalty.” David Cole, No Equal Justice 78-79 (1999). In one particularly shocking instance, the Sixth Circuit Court of Appeals found an attorney rendered constitutionally effective assistance even though he did not know his client’s name, did not know important mitigating factors, and lied about his experience with death penalty cases. Slaughter v. Parker, 450 F.3d 224 (6th Cir. 2006). The result: the death sentence Jeffrey Leonard, a 20-year-old African American man, was upheld.

These instances are not about legal strategy but base competency and preparedness. They do not even reach the bare minimum of what a criminal defendant needs, especially with so much at stake in a criminal trial. Yet, under Strickland, these decisions are legally sound.

Strickland’s discriminatory impact is another cause to push for a new rule. Those most likely to receive inadequate counsel are indigent criminal defendants, who are most often racial minorities. Although many public defense attorneys are highly qualified and expert, court-appointed defense attorneys are the most likely to provide lacking legal assistance. See Stephen B. Bright, Counsel for the Poor: The Death Sentence Not for the Worst Crime but for the Worst Lawyer, 103 Yale L.J. 1835 (1994). As a result, racial minorities and the poor feel the harshness of Strickland’s strict rule most.

Unfortunately, as unreasonably strict as Strickland’s law is, it is the current Supreme Court precedent, unlikely to change given the court’s current makeup. We’re stuck with Strickland, so what are we to do?

One option is to look outside the constitution for an effective assistance of counsel requirement. We can infer such a requirement from statutes such as the Federal Rules of Evidence. To see how litigators and judges can argue that the Federal Rules of Evidence imposes an effective assistance of counsel requirement, let’s use the Rules on expert witnesses as an example.

The Rule that describes how an expert becomes certified, Rule 702, loosely defines who can become an expert and what sorts of testimony counts as expert testimony. Moreover, in the famous Daubert case—which held that expert testimony did not necessarily need to be generally accepted in the expert community in order to be admissible (although general acceptance remained an important factor)—the court believed that conflicting technical expert testimony would not confuse the jury because “[v]igorous cross-examination, presentation of contrary evidence, and careful instruction on the burden of proof are the traditional and appropriate means of attacking shaky but admissible evidence.” Therefore Rule 702, which has now incorporated Daubert into its language, relies on cross-examination.

Cross-examination takes on a crucial role in Rule 705 as well. That Rule allows expert witnesses to state their opinions directly. Again, such authoritative-sounding testimony will not unduly sway the jury thanks to skilled cross-examination. In fact, the Advisory Committee Notes reassure us that juries will correctly assess all experts’ assertions, thanks to the opposing lawyer’s effective cross-examination.

The Federal Rules of Evidence depend on able cross-examination for the Rules to function properly. This sounds like an “effective cross-examination” requirement; otherwise, according to Daubert and the Advisory Committee, the Rules would fall apart. Do lawyers meet the Rules’ effective cross-examination demands? Certainly not the lawyer who slept through parts of the trial, nor the lawyer who did not even know his client’s name. An attorney who is able to pass as “effective” under Strickland’s constitutional requirement might not fare as well under the Rules’ effective cross-examination requirement.

Litigants and judges should argue that the Federal Rules of Evidence demands lawyers to be able to effectively cross-examine witnesses. Hopefully this statutory effective assistance of counsel requirement can cut against the injustice of Strickland’s weak constitutional requirement.

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