Ineffective assistance of counsel can provide grounds for relief from a Michigan criminal conviction or sentence. But proving that an attorney made a mistake is not enough.

A defendant generally must establish two things:

Defense counsel’s performance fell below an objective standard of reasonableness; and
The deficient performance prejudiced the defense.

That constitutional framework comes from Strickland v Washington, 466 US 668 (1984), and is applied by Michigan courts through decisions including People v Pickens, 446 Mich 298 (1994), and People v Carbin, 463 Mich 590 (2001).

The distinction is critical.

A defendant does not receive a new trial simply because another attorney might have handled the case differently.

Courts generally presume that counsel provided effective representation and give substantial deference to reasonable strategic decisions.

But “trial strategy” does not automatically make every decision constitutionally reasonable.

A meaningful ineffective-assistance analysis may require answering questions such as:

What did counsel investigate?

What did counsel know?

What evidence was available?

Why was a particular decision made?

Was that decision supported by reasonable professional judgment?

And did the alleged error affect the result?

Sometimes those answers appear in the existing transcripts.

Sometimes they do not.

When the necessary facts exist outside the appellate record, a Michigan Ginther hearing may become an important part of the appellate process.

What Is Ineffective Assistance of Counsel in Michigan?

The Sixth Amendment guarantees a criminal defendant the right to assistance of counsel.

That protection requires more than simply having an attorney physically present. The representation must satisfy the constitutional minimum for effective legal assistance.

Under Strickland, an ineffective-assistance claim ordinarily requires proof of both deficient performance and prejudice.

Deficient Performance

The defendant must show that counsel’s representation fell below an objective standard of reasonableness under prevailing professional norms.

The Constitution does not guarantee perfect representation.

It does require representation that satisfies the constitutional standard of competence.

Prejudice

The defendant must ordinarily also establish a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different.

A reasonable probability is one sufficient to undermine confidence in the outcome.

Both requirements matter.

An attorney may make a mistake without the mistake being constitutionally deficient.

And even constitutionally deficient performance may not require relief if the defendant cannot establish the required prejudice.

A Guilty Verdict Does Not Automatically Mean Counsel Was Ineffective

Criminal trials require attorneys to make difficult strategic decisions.

Counsel may have to determine:

which witnesses to call;
which witnesses not to call;
which objections to make;
whether to seek expert assistance;
how to cross-examine witnesses;
whether particular evidence should be emphasized;
what theory of defense to pursue;
whether a defendant should testify;
what jury instructions to request; and
how to structure closing argument.

The fact that the strategy did not succeed does not automatically mean counsel was constitutionally ineffective.

Appellate courts generally do not evaluate trial decisions merely with the benefit of hindsight.

But that principle has limits.

“Trial Strategy” Does Not End the Inquiry

People v Trakhtenberg, 493 Mich 38 (2012), is especially important in this area.

Michigan courts recognize a strong presumption that counsel’s conduct may constitute sound trial strategy.

But a reviewing court should not simply attach the label “strategy” to questionable conduct and end the analysis.

A strategic decision should generally result from reasonable professional judgment.

That often requires examining the investigation preceding the decision.

Consider two situations.

Example One: Informed strategy

An attorney identifies a potentially useful witness.

Counsel interviews the witness, reviews prior statements, investigates corroborating evidence, discovers serious credibility problems, evaluates the likely cross-examination, and decides the witness would harm the defense.

That may represent a reasonable strategic decision.

Example Two: No meaningful investigation

An attorney learns about an important potential witness but never interviews the witness and never learns what the witness could say.

After conviction, the failure to call the witness is characterized as “trial strategy.”

Those two situations are not necessarily constitutionally equivalent.

The important question may be not only what counsel decided, but whether counsel had enough information to make a professionally reasonable decision.

Failure to Investigate Can Constitute Ineffective Assistance

Failure to investigate is one of the most significant categories of ineffective-assistance claims.

Potential investigative failures may involve:

alibi witnesses;
eyewitnesses;
surveillance video;
cellphone records;
location evidence;
text messages;
medical records;
forensic evidence;
police records;
impeachment evidence;
alternative suspects;
expert witnesses;
photographs;
electronic records; or
evidence supporting an available defense.

But a successful appellate argument requires more than saying:

“My lawyer should have investigated more.”

A developed claim should attempt to establish:

What should counsel have investigated?

What would a reasonable investigation have revealed?

Was that information available before trial?

Would the evidence have been admissible or otherwise useful?

Why was counsel’s failure objectively unreasonable?

How could the omitted evidence have affected the result?

Those questions turn a general complaint into a constitutional analysis.

Failure to Call a Witness

A defendant may believe that a particular witness could have changed the outcome of the case.

That allegation can be significant, but the failure to call a witness does not automatically establish ineffective assistance of counsel.

Decisions concerning witnesses are ordinarily treated as matters of trial strategy.

A witness may have:

serious credibility problems;
damaging prior statements;
testimony inconsistent with the defense;
inadmissible information;
vulnerabilities on cross-examination;
cumulative testimony; or
information that could open the door to harmful evidence.

Again, however, the adequacy of the investigation matters.

There is an important distinction between:

“Counsel investigated the witness and reasonably decided not to call the person.”

and

“Counsel never investigated the witness at all.”

If the witness never testified, the original trial record may not contain enough facts to determine what occurred.

That can create the need for additional factual development.

Failure to Obtain an Expert

Some criminal prosecutions depend heavily upon specialized evidence.

Examples can include:

DNA;
forensic pathology;
toxicology;
medical causation;
digital forensics;
firearm evidence;
accident reconstruction;
psychology;
eyewitness identification; or
other scientific evidence.

Not every case requires a defense expert.

But People v Ackley, 497 Mich 381 (2015), demonstrates the importance of adequately investigating expert evidence where specialized medical or scientific issues are central to the prosecution.

The broader principle is important:

Counsel cannot necessarily make a reasonable strategic decision concerning technical evidence without first developing a sufficient understanding of that evidence.

Whether expert assistance was required depends upon the particular facts of the case.

Failure to Object

Another common allegation is that defense counsel should have objected during trial.

Sometimes that may support an ineffective-assistance claim.

Sometimes the proposed objection would have been meritless.

And sometimes counsel may have had a legitimate strategic reason not to object.

The proper analysis generally asks:

Was there a valid legal basis for an objection?
Would reasonably competent counsel have objected?
Was there a reasonable strategic reason not to object?
What would likely have happened if the objection had been made?
Did the failure to object prejudice the defendant?

Counsel generally is not ineffective for failing to make a futile objection.

But failure to object to a substantial legal error may support an ineffective-assistance claim when the constitutional requirements are satisfied.

Prosecutorial Misconduct and Failure to Object

Ineffective-assistance claims frequently arise alongside allegations of prosecutorial misconduct.

Suppose the prosecutor makes an improper argument and defense counsel does not object.

The failure to object may affect the standard of appellate review for the underlying prosecutorial issue.

But it can also raise a separate constitutional question:

Was defense counsel ineffective for failing to object?

People v Randolph, 502 Mich 1 (2018), is important because it recognizes that review of the underlying trial error and review of counsel’s effectiveness involve distinct standards.

An unsuccessful plain-error argument does not automatically determine whether counsel provided constitutionally effective representation.

For more information, see our guide to prosecutorial misconduct in Michigan criminal appeals.

Failure to File a Motion

A defendant may also claim that counsel failed to file a motion that should have been pursued.

Examples can include:

a motion to suppress evidence;
a motion challenging identification;
an evidentiary motion;
a motion concerning expert testimony;
a motion for mistrial; or
another potentially significant motion.

The absence of a motion alone generally does not establish ineffective assistance.

The defendant ordinarily must show that the omitted motion had legal merit and that counsel acted unreasonably by failing to pursue it.

The prejudice requirement remains as well.

Counsel generally cannot be constitutionally ineffective for failing to file a motion that would have been denied.

Ineffective Assistance During Plea Negotiations

The right to effective assistance of counsel applies during plea negotiations as well as trial.

Potential claims can involve allegations that counsel:

failed to communicate a plea offer;
materially misstated sentencing exposure;
incorrectly explained the charges;
failed to investigate an important defense before recommending a plea;
advised rejection of a favorable offer based upon incorrect legal information;
misunderstood or misstated the plea agreement; or
otherwise provided constitutionally deficient advice affecting the plea decision.

United States Supreme Court decisions including Hill v Lockhart, 474 US 52 (1985), Missouri v Frye, 566 US 134 (2012), and Lafler v Cooper, 566 US 156 (2012), address ineffective assistance during the plea process.

The prejudice analysis can differ substantially from a claim arising after trial.

A court may need to evaluate what would probably have occurred if constitutionally adequate advice had been provided.

For a broader explanation of plea-based appellate rights, see Can You Appeal a Guilty Plea in Michigan?

Ineffective Assistance at Sentencing

The right to effective representation continues through sentencing.

Potential sentencing-related claims can involve failure to:

challenge inaccurate information;
review or correct the Presentence Investigation Report;
challenge improper sentencing-guidelines scoring;
investigate mitigation;
present available mitigating evidence;
challenge an improper sentencing consideration;
identify an unlawful sentence; or
preserve a significant sentencing issue.

A successful sentencing-related claim may lead to resentencing rather than a new trial.

For a fuller discussion, see our guide to a Michigan criminal sentence appeal.

What Is a Ginther Hearing in Michigan?

A Ginther hearing is an evidentiary hearing used to develop facts relevant to an ineffective-assistance claim.

The name comes from People v Ginther, 390 Mich 436 (1973).

A Ginther hearing may become important when the existing appellate record does not contain the facts necessary to properly evaluate counsel’s performance.

Trial transcripts generally tell an appellate court what occurred in the courtroom.

They may not reveal what happened before trial, during investigation, or outside the courtroom.

Suppose the claim is that counsel failed to investigate a witness.

The transcript may show only that the witness did not testify.

It may not reveal:

whether counsel knew about the witness;
whether counsel interviewed the witness;
what the witness would have said;
whether an investigator contacted the witness;
whether credibility problems were discovered;
whether the testimony was admissible; or
why counsel decided not to call the witness.

Those facts may need to be developed through testimony and evidence.

What Happens at a Ginther Hearing?

A Ginther hearing is an evidentiary proceeding.

Depending upon the claim, evidence may concern:

trial counsel’s investigation;
decisions made before trial;
strategic decisions;
witnesses not presented at trial;
investigators;
expert witnesses;
documentary evidence;
attorney files;
communications;
omitted evidence;
plea negotiations;
sentencing preparation; or
other circumstances relevant to deficient performance and prejudice.

Trial counsel may testify about:

what was investigated;
what information was available;
what alternatives were considered;
why particular decisions were made; and
whether those decisions were based on informed professional judgment.

Other witnesses may testify concerning evidence that was never presented at trial.

The hearing creates a factual record that can be used to evaluate the constitutional claim.

Why the Trial Transcripts May Not Be Enough

Consider an allegation that counsel failed to investigate an alibi witness.

The trial transcript may contain no reference to the witness.

Without additional evidence, a reviewing court may not know:

whether the witness existed;
whether counsel knew about the witness;
whether the witness was available;
what the testimony would have been;
whether counsel investigated;
why the witness was not called; or
whether the testimony could reasonably have affected the outcome.

That is why ineffective-assistance issues involving facts outside the existing record should be identified early.

The appellate attorney must determine whether the issue can be decided from the record already available or whether additional factual development is necessary.

How Is a Ginther Hearing Requested During an Appeal?

When a case is pending in the Michigan Court of Appeals and additional factual development is necessary, an appellant may seek remand under MCR 7.211(C)(1).

A motion to remand must identify an appellate issue and demonstrate either that:

the issue must initially be decided by the trial court; or
development of a factual record is necessary for appellate consideration.

The rule also requires support through an affidavit or other offer of proof regarding the facts to be established at the hearing.

That requirement is extremely important.

A motion for remand generally should not simply say:

“We would like a hearing to investigate whether something went wrong.”

Instead, the request should attempt to identify:

the specific constitutional issue;
what facts are missing;
what evidence supports the claim;
what testimony or evidence would be presented;
why factual development is necessary; and
why the missing facts could matter to appellate review.

In many cases, meaningful investigation must therefore occur before the request for remand is filed.

What Is an Offer of Proof?

An offer of proof demonstrates what evidence the appellant expects to establish if a hearing is granted.

Depending upon the case, that may include:

a witness affidavit;
an expert affidavit;
medical records;
cellphone records;
photographs;
correspondence;
investigative records;
prior statements;
attorney-file materials; or
another concrete form of evidence.

The purpose is to show that the request for factual development is based upon an identifiable issue rather than speculation.

Does Every Ineffective-Assistance Claim Require a Ginther Hearing?

No.

Some claims can be resolved entirely from the existing appellate record.

The transcript itself may establish:

whether an objection was made;
what jury instruction was requested;
what counsel said on the record;
whether a sentencing objection was made; or
another fact necessary to decide the issue.

The important question is:

Does the existing record contain everything necessary to evaluate the claim?

If yes, a Ginther hearing may be unnecessary.

If no, additional factual development may be required.

For an overview of where remand, briefing, postjudgment motions, and other proceedings fit into the larger case, see our Michigan criminal appeal process guide.

The Defendant Must Establish the Factual Basis for the Claim

Under Michigan law, the defendant bears the burden of establishing the factual predicate supporting the ineffective-assistance claim.

That means allegations ordinarily need evidentiary support.

It is generally not enough to say:

“Counsel probably failed to investigate.”

or:

“There must have been another witness.”

The defendant must ordinarily establish what actually occurred.

Depending upon the claim, that may require:

affidavits;
witness testimony;
attorney files;
investigator records;
expert analysis;
documentary records; or
another form of admissible or relevant evidence.

This is another reason record development can be essential.

Prejudice Is Often the Hardest Requirement

Even if counsel made a significant mistake, a defendant ordinarily must show that the mistake mattered.

Consider two examples.

Example One: Potentially Significant Prejudice

The prosecution’s case depends largely upon one eyewitness identification.

Trial counsel fails to investigate another eyewitness who was present and would have testified that the defendant was not the perpetrator.

The omitted testimony is credible, admissible, and directly contradicts the prosecution’s central evidence.

That may present a substantial prejudice argument.

Example Two: Much More Difficult Prejudice

Counsel fails to object to one minor evidentiary statement.

The prosecution also presented surveillance video, physical evidence, several independent witnesses, and an admissible confession.

Even if counsel should have objected, demonstrating a reasonable probability of a different result may be considerably more difficult.

That is why the analysis cannot end with:

Did counsel make a mistake?

It must also ask:

What effect did the mistake have on the proceeding?

What If Counsel Failed to Preserve Another Appellate Issue?

Ineffective-assistance claims often appear alongside another appellate issue.

Suppose trial counsel failed to object to:

prosecutorial misconduct;
improper hearsay;
inadmissible expert testimony;
an erroneous jury instruction;
inaccurate sentencing information; or
another significant error.

The appellate attorney should generally analyze two separate questions:

Was there an underlying legal error?
Was counsel constitutionally ineffective for failing to preserve it?

Those claims may involve different standards of review.

A failure to object can therefore affect both the direct claim and the ineffective-assistance analysis.

Ineffective Assistance and Applications for Leave to Appeal

Ineffective-assistance claims can arise in cases proceeding by application for leave to appeal, including many plea-based convictions.

The appellate attorney should determine:

whether the claim is visible in the existing record;
whether factual development is necessary;
whether a trial-court motion is required;
whether remand should be requested;
what evidence supports the claim; and
what appellate deadline applies.

For a detailed explanation of that procedure, see our guide to a Michigan application for leave to appeal.

Can Ineffective Assistance Be Raised in an MCR 6.500 Motion?

Potentially.

But an MCR 6.500 motion is not simply another direct appeal.

Michigan’s post-conviction rules impose substantial procedural requirements.

Depending upon the circumstances, MCR 6.508(D) may require the defendant to establish good cause for failing to raise an issue previously and actual prejudice resulting from the alleged irregularity.

The history of the case therefore becomes extremely important.

Questions may include:

Was there a direct appeal?
What issues were raised?
Was appellate counsel appointed?
Was factual development requested?
Was a Ginther hearing previously sought?
Could the present evidence have been obtained earlier?
Is the evidence actually new?
Has a previous MCR 6.500 motion been filed?

A defendant should not assume that simply describing an issue as ineffective assistance automatically avoids Michigan’s procedural requirements.

For more information, see our guide to a Michigan Motion for Relief from Judgment under MCR 6.500.

What If Appellate Counsel Missed an Issue?

Ineffective-assistance allegations can also involve appellate counsel.

That analysis is different from a claim against trial counsel.

An appellate attorney is not necessarily required to raise every conceivable issue.

Effective appellate advocacy often requires identifying the strongest arguments and declining to emphasize weaker claims.

The mere fact that another issue could have been raised therefore does not automatically establish constitutionally deficient appellate representation.

A proper analysis may consider:

which issues were actually raised;
which issues were omitted;
the relative strength of the competing claims;
what information was available;
whether further investigation was warranted;
whether factual development was possible; and
whether the alleged omission resulted in the required prejudice.

The full prior appellate history should be reviewed before determining whether such a claim is viable.

What Records Should Be Reviewed?

A serious ineffective-assistance review may require much more than the appellate opinion.

Relevant court records can include:

preliminary-examination transcripts;
motion hearings;
trial transcripts;
plea transcripts;
sentencing transcripts;
exhibits;
jury instructions;
Judgment of Sentence;
Presentence Investigation Report;
appellate briefs;
Court of Appeals orders;
Michigan Supreme Court orders; and
previous post-conviction filings.

Depending upon the claim, materials outside the existing appellate record may also be important.

These can include:

trial counsel’s file;
investigator reports;
witness statements;
expert reports;
medical records;
electronic evidence;
photographs;
correspondence;
plea communications;
scientific evidence; or
witness affidavits.

The appropriate investigation depends upon the allegation.

What Should You Send an Appellate Attorney?

If available, helpful materials include:

Judgment of Sentence;
plea transcript;
trial transcripts;
sentencing transcript;
PSI;
register of actions;
previous appellate briefs;
Court of Appeals orders or opinions;
Michigan Supreme Court orders;
relevant motions;
witness information;
expert reports; and
documents supporting the alleged attorney error.

It is also important to identify:

whether this is the first appeal;
whether appellate counsel was previously appointed;
whether an application for leave has already been filed;
whether a Ginther hearing previously occurred;
whether an appellate court has already decided the issue; and
whether an MCR 6.500 motion has previously been filed.

Those facts may substantially affect what procedure remains available.

Frequently Asked Questions About Ineffective Assistance of Counsel in Michigan

Can ineffective assistance of counsel overturn a Michigan conviction?

Yes, when the constitutional requirements are established. A defendant generally must prove objectively unreasonable representation and resulting prejudice.

Does every attorney mistake require reversal?

No. The Constitution does not guarantee perfect representation. The alleged error must satisfy the constitutional standard and ordinarily must have caused the required prejudice.

Is trial strategy always protected?

No. Courts give substantial deference to reasonable strategic decisions, but the adequacy of the investigation and professional judgment supporting the strategy can matter.

Can failure to investigate constitute ineffective assistance?

Yes, under appropriate circumstances. The defendant usually must establish what reasonable investigation would have uncovered and why the omitted evidence mattered.

Can failure to call a witness constitute ineffective assistance?

Potentially. The analysis can depend upon what the witness would have said, whether counsel investigated the witness, why the witness was not presented, and whether the omission prejudiced the defense.

Can failure to obtain an expert constitute ineffective assistance?

Potentially. Not every case requires expert testimony, but failure to reasonably investigate important specialized evidence can support a constitutional claim in an appropriate case.

What is a Ginther hearing?

A Ginther hearing is an evidentiary proceeding used to develop facts concerning ineffective assistance when the existing appellate record is insufficient.

Does every ineffective-assistance claim require a Ginther hearing?

No. If the existing record already contains all facts necessary to decide the issue, additional factual development may not be necessary.

Can trial counsel testify at a Ginther hearing?

Yes. Trial counsel may testify concerning investigation, preparation, knowledge, strategy, and the reasons particular decisions were made.

Is a Ginther hearing automatically granted?

No. When remand is sought from the Michigan Court of Appeals, MCR 7.211(C)(1) requires the appellant to identify the issue requiring factual development and support the request with an affidavit or other offer of proof.

Can ineffective assistance occur during a guilty plea?

Yes. The constitutional right to effective representation applies during plea negotiations.

Can ineffective assistance occur at sentencing?

Yes. Constitutionally deficient representation at sentencing may support relief, including resentencing.

Can ineffective assistance be raised in a 6.500 motion?

Potentially, but Michigan’s post-conviction rules impose important procedural requirements. Prior appellate history should be carefully reviewed.

What happens if the claim succeeds?

The remedy depends upon the constitutional violation. Possible relief can include a new trial, resentencing, plea-related relief, additional proceedings, or another appropriate remedy.

The Most Important Question Is Not Simply Whether Counsel Made a Mistake

Ineffective-assistance litigation requires more than criticizing a previous lawyer.

A serious appellate analysis asks:

What did counsel do or fail to do?

What should reasonably competent counsel have done?

What evidence establishes the allegation?

Was the challenged decision supported by reasonable investigation?

Is the necessary evidence already contained in the appellate record?

Does the record need to be expanded?

Is remand appropriate?

Can the factual predicate actually be proved?

And did the alleged deficiency cause the constitutionally required prejudice?

Those questions explain why ineffective-assistance claims can be among the most fact-intensive issues in Michigan criminal appellate practice.

Sometimes the transcript provides the answer.

Sometimes the most important evidence exists outside the transcript.

When additional factual development is necessary, appellate counsel must recognize that problem and determine whether an affidavit, offer of proof, motion for remand, or Ginther hearing is required.

Have Your Case Reviewed

If you or a family member believes that a significant legal error affected a Michigan criminal conviction, plea, or sentence, the first step is often a careful review of the record and procedural history.

Czarnecki & Taylor PLLC handles Michigan criminal appeals, applications for leave to appeal, sentencing challenges, motions for relief from judgment, and related post-conviction matters.

When possible, provide the plea, trial, and sentencing transcripts, PSI, Judgment of Sentence, and any documents from a previous appeal.

A careful appellate review can help determine whether an issue remains available, whether additional factual development may be necessary, whether a direct appellate remedy still exists, and what procedure may be appropriate.

Contact Czarnecki & Taylor PLLC at (586) 718-2345 to discuss a Michigan criminal appellate or post-conviction matter.

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Past results do not guarantee future results. Every case depends upon its own facts, evidence, procedural history, and applicable law. This article provides general legal information and does not constitute legal advice.