Hastings Law Journal


Robert J. Nolan


On March I, 2004, the Supreme Court granted certiorari in Florida v. Nixon to resolve whether Strickland v. Washington or United States v. Cronic applies to ineffective assistance of counsel claims where defense counsel unilaterally concedes guilt to a lesser offense. A number of lower courts have considered this issue. Some have applied Stickland's two prong test and required the defendant to prove both deficient performance and prejudice. Other courts have held that such a concession amounts to a failure of meaningful adversarial testing and under Cronic, prejudice should be presumed. Since Bell v. Cone, where the Supreme Court held that in order for Cronic to apply the concession must amount to an entire failure, courts have increasingly applied Strickland and required the defendant to prove prejudice. This Note contends that when defense counsel's concedes guilt to a lesser included offense during opening statements, the concession amounts to an entire failure of meaningful adversarial testing. Such a concession not only relieves the prosecution of their entire burden of proof as to that offense but takes one of the most fundamental decisions-whether to plead guilty to each offense-out of the hands of the defendant. Prejudice should therefore be presumed. A concession made during closing arguments, on the other hand, may serve as an acknowledgment of overwhelming evidence already presented against the defendant. Where the evidence is indeed overwhelming, Strickland should apply and prejudice should not be presumed.

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