This blog post examines in detail how inadequate representation infringes upon a defendant’s right to defense, and what criteria and procedures must be met to overturn a guilty verdict, based on the latest case law and institutional trends.
In criminal proceedings, defense counsel is not merely a litigation representative but bears the responsibility of actively protecting the legitimate interests of the defendant, who is in a relatively disadvantaged position compared to the prosecutor. To ensure a fair trial, substantive equality must be secured between the prosecutor and the defendant. Therefore, defense counsel must not merely exist in name; they must be professional entities that actually perform effective defense activities. Particularly in the U.S. criminal procedure, which is structured around an adversarial litigation system—where, for instance, a judge cannot investigate evidence ex officio unless requested by the parties (the prosecutor and defendant)—the role of defense counsel carries even greater significance.
The U.S. Supreme Court already ruled in the 1965 Miranda decision that the right to counsel extends not only to indicted defendants but also to suspects under investigation prior to indictment. However, this ruling did not extend to requiring that the counsel provided be effective. Subsequently, controversial types of ineffective assistance include: first, situations where the attorney’s interests conflict with those of the defendant; and second, cases where the representation is deficient and inadequate, failing to meet certain standards. Regarding the first type, both U.S. and Korean case law have recognized the violation of the defendant’s rights and have overturned guilty verdicts. Conversely, the second type has continued to raise questions about how to establish the criteria for judgment.
The attorney’s duty of diligence encompasses not only conscientious handling of duties but also competent performance as a legal professional. In the United States, attorneys providing negligent representation face disciplinary action or liability for damages based on breach of the retainer agreement. However, determining compliance with the duty of diligence inevitably involves subjective elements, and the content of this duty itself is fluid, changing with the times and legal principles. Consequently, retrospectively concluding a violation remains a highly difficult issue. As a result, whether a breach of the duty of diligence actually infringes upon the defendant’s right to effective assistance of counsel has long been a subject of debate.
In the 1958 Mitchell decision, the U.S. Supreme Court held that the effectiveness of defense is a matter of advocacy technique and thus does not form part of the essential content of the right to counsel. Defense is an activity demanding high levels of expertise and improvisation; thus, the effectiveness of defense ultimately depends on how the defense attorney responded to each situation during the litigation process. Therefore, the logic was that it was not appropriate for another court to evaluate whether the defense attorney complied with the duty of diligence after the trial had concluded.
However, in 1984, the U.S. Supreme Court changed its position in Strickland v. Thompson, holding that the effectiveness of counsel could be judged by an objective standard of reasonableness. It specified, however, that to overturn a guilty verdict, the defendant must prove both that counsel violated the duty of diligence and that the violation affected the outcome of the trial. Subsequently, in the 1986 Florida Supreme Court case of Maykemson, the court held that the quality of representation is closely linked to the attorney’s compensation. It emphasized that the government must actively support public defender compensation to substantively guarantee the right to effective assistance of counsel. This debate continues to this day. Even in the 2020s, concerns persist in the United States that the overload and underfunding of the public defender system threaten fair criminal proceedings.
In Korea, the Constitutional Court has narrowly interpreted the constitutional right to counsel, recognizing it only for defendants. Furthermore, relevant statutes like the Attorney Act explicitly stipulate the duty of attorney diligence. Failure to uphold this duty constitutes not only an ethical violation but also a breach of substantive law. While a breach of this duty that substantially impacts a trial is a serious issue undermining the fairness of criminal proceedings and the protection of fundamental rights, South Korea tends to address it primarily as a matter of disciplinary action against the individual attorney or compensation for damages. This approach fails to fully reflect the constitutional purpose of guaranteeing the right to counsel and the right to a fair trial.
The constitutionally guaranteed right to counsel does not merely imply assistance; it signifies the defendant’s right to receive substantially effective defense. Therefore, in Korea too, a guilty verdict should be overturned if the defendant’s right to effective defense is violated due to unprofessional representation. Furthermore, the state must expand financial support for court-appointed attorneys to guarantee substantive criminal defense rights. Ultimately, ensuring effective defense is an essential obligation of the state and a necessary condition for realizing fair criminal justice.
