Saturday, November 3, 2012
Carissa Byrne Hessick (Arizona State, Sandra Day O'Connor College of Law) has posted Proving Prejudice for Ineffective Assistance Claims After Frye (Federal Sentencing Reporter, Vol. 5, December 2012) on SSRN. Here is the abstract:
The Supreme Court’s recent decision in Missouri v. Frye has been widely described as benefiting criminal defendants. While Frye expanded the pool of defendants who are eligible to bring ineffective assistance claims to those who were deprived of a favorable plea bargain, it may have made it more difficult for those defendants to prevail on those claims by increasing the necessary showing of prejudice. In particular, the Frye Court indicated that a defendant must demonstrate not only that she would have accepted the plea deal, but also that 'the plea would have been entered without the prosecution canceling it or the trial court refusing to accept it.' This language may encourage lower courts to raise the bar for defendants claiming ineffective assistance. As this short commentary demonstrates, a number of federal courts have imposed heightened prejudice standards on defendants claiming ineffective assistance at sentencing. The prejudice language in Frye may help to solidify what appears to be a broader trend of defendants being asked to prove too much to establish prejudice.