Under the Constitution of the United States as well as the laws of many states, a defendant in a criminal action is entitled not merely to the formality of representation by any counsel but also to some degree of efficacy in this representation. Determining whether this right to effective counsel has been violated is a difficult problem. One source of difficulty is the potential conflict between two strong public policy considerations: the desire to spare a defendant the injustices which can result from ineffective representation as opposed to the need for finality of judgments and the orderly functioning of the judicial system. The danger to the orderly administration of justice created by overturning convictions for failures of counsel is greater than the corresponding dangers inherent in reversing convictions on most other grounds. There, the party's lawyer ordinarily must object at the trial to the alleged error if it is to be available as a ground on appeal. This gives the trial court an opportunity to correct its own error. If the trial judge fails to do so, the objection is preserved for appeal. In cases involving a denial of effective counsel, however, the situation will often escape the attention of the trial court, and there will normally be no specific objections on which the reviewing court can focus its attention.
Ernest G. Kelly, Jr.,
The Right to Effective Counsel in Criminal Cases,
18 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol18/iss4/13