Plea bargaining dominates the modern criminal justice system. Constitutional safeguards, however, have only slowly followed this fundamental shift in criminal adjudication. In Missouri v. Frye and Lafler v. Cooper, the Supreme Court extended the Sixth Amendment’s right to counsel to situations in which deficient counsel leads a defendant to forgo a beneficial plea agreement. The Court’s test left state court systems, however, with the difficult burden of assessing how the defendant, the trial court, and the prosecution might have behaved in a counterfactual world with adequate counsel. This Note distinguishes two fundamental approaches to these counterfactual questions: a “burden” approach demanding defendants provide evidence as to how each party would have acted, and a “presumption” approach that presumes the normal course of action would be approval of an accepted plea by all relevant parties. Looking to case law in two state jurisdictions, this Note concludes that each state system primarily follows either the presumption or the burden approach. This Note argues that, particularly with respect to questions of how the trial court and prosecution would have acted, the presumption approach provides the clearest path to the truth and best serves the values underpinning the Sixth Amendment’s right to effective counsel.

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Today, the American criminal justice system is a system of pleas. Despite a traditional focus on trial-based protections for criminal defendants, most cases in our criminal justice system, at both the federal and state levels, result in pretrial plea bargains and eventual guilty pleas. 1 See Sourcebook of Criminal Justice Statistics Online, tbl.5.22.2010, Univ. at Alb., [] (last visited Oct. 13, 2020) (showing more than ninety-seven percent of convicted defendants in federal district courts in 2010 were convicted by plea); Sourcebook of Criminal Justice Statistics Online, tbl.5.46.2006, Univ. at Alb., [] (last visited Oct. 13, 2020) (showing ninety-four percent of state felony convictions to be the result of guilty pleas). But see Andrew Manuel Crespo, The Hidden Law of Plea Bargaining, 118 Colum. L. Rev. 1303, 1378 n.223 (2018) (arguing that, properly accounting for dismissals, state guilty plea rates range from fifty-six percent to eighty-seven percent). In spite of an increasing acceptance of guilty pleas as the standard method of adjudication, however, the protections offered to the accused during the crucial pleading stage remain relatively sparse in contrast to the broad and well-developed safeguards provided during trial. 2 See, e.g., Stephanos Bibas, Regulating the Plea-Bargaining Market: From Caveat Emptor to Consumer Protection, 99 Calif. L. Rev. 1117, 1119 (2011) (arguing that scant pleading protections belie the hope of the Supreme Court that “shadows cast by trials . . . regulate plea outcomes, even though few defendants dare[] risk the huge penalties for going to trial”); Corinna Barrett Lain, Accuracy Where It Matters: Brady v. Maryland in the Plea Bargaining Context, 80 Wash. U. L.Q. 1, 2 (2002) (noting that only “[a] few select rights traditionally associated with trial are so essential . . . that defendants retain them even though they choose to plea bargain”); John Rappaport, Unbundling Criminal Trial Rights, 82 U. Chi. L. Rev. 181, 181–85 (2015) (describing the process of plea bargaining as one in which defendants fundamentally trade their trial rights, either wholesale or piecemeal, in exchange for reduced sentencing exposure).

The Supreme Court acknowledged as much in 2012 in Missouri v. Frye 3 566 U.S. 134 (2012). and Lafler v. Cooper, 4 566 U.S. 156 (2012). in which it examined claims of ineffective assistance of counsel at the pleading stage. Unlike in prior cases heard by the Court regarding effective counsel at the pleading stage, 5 E.g., Padilla v. Kentucky, 559 U.S. 356 (2010) (granting relief to a defendant who pleaded guilty without being informed of the immigration consequences of his resulting conviction); Hill v. Lockhart, 474 U.S. 52 (1985) (rejecting a defendant’s attempt to vacate his guilty plea due to ineffective assistance of counsel in informing him of his parole eligibility). in these cases the appellants sought not to vacate their guilty pleas but to instead accept plea agreements that had lapsed 6 Frye, 566 U.S. at 147. or been rejected 7 Lafler, 566 U.S. at 160. due to ineffective counsel. In Frye and Lafler, the Court grounded its opinions in the overwhelming dominance of guilty pleas in our current criminal justice system and the resulting need for appropriate protections for defendants. 8 See id. at 169–70 (noting that “[n]inety-seven percent of federal convictions and ninety-four percent of state convictions are the result of guilty pleas”); Frye, 566 U.S. at 143–44 (arguing that “plea bargains have become so central to the administration of the criminal justice system” that defense counsel responsibilities under the Sixth Amendment must extend into the pleading stage).

This Note examines Frye and Lafler’s application of ineffective assistance of counsel (IAC) doctrine to cases in which defendants allege that plea offers were refused or forgone due to incompetent defense counsel. By applying Strickland v. Washington’s prejudice prong 9 466 U.S. 668, 687 (1984). in this new context, the decisions posed new counterfactual questions regarding the hypothetical actions of courts and prosecutors, creating in turn new challenges and complications for courts. This Note assesses the potential approaches to these complications. To illuminate and inform the analysis, this Note looks to how select state courts have interpreted the malleable instructions left by the Supreme Court in Lafler and Frye and identifies two fundamental approaches used. The first approach, in which courts require a defendant to affirmatively prove that the prosecutor would have maintained an offered plea and that the trial court would have accepted it, is referred to as the “burden” approach. By contrast, courts using the “presumption” approach rely on the fact that most plea offers are neither revoked by offering prosecutors nor rejected by trial courts absent unusual circumstances and presume that the defendant would have successfully obtained an accepted plea agreement.

Part I traces the development of Sixth Amendment doctrine that led to the Frye and Lafler decisions. Section I.A provides a short history of Sixth Amendment jurisprudence and explores the contemporary IAC test established by Strickland. 10 Id. Section I.B continues by looking at the initial application of IAC claims to the pleading context by the Supreme Court in Hill v. Lockhart, 11 474 U.S. 52 (1985). Padilla v. Kentucky, 12 559 U.S. 356 (2010). and then Frye and Lafler. Section I.C introduces the Court’s brief instructions regarding Strickland’s prejudice prong as applied in Frye and Lafler.

Part II considers the doctrinal changes brought about in Frye and Lafler and examines applications of the cases in state court systems. Section II.A focuses on the new counterfactual questions created in Frye and Lafler to determine prejudice for claims in which a defendant can show that inadequate counsel led to a forgone plea offer (with better terms) that the defendant would have otherwise accepted. The Supreme Court asked reviewing courts to assess (1) whether the court would have accepted a particular plea agreement and (2) whether the prosecutor would have revoked the deal prior to the plea’s entry. 13 See Frye, 566 U.S. at 147–48. This Note compares these new questions to the existing inquiry used in IAC claims at the pleading stage, in which courts considering vacating a guilty plea ask whether a defendant truly would not have pleaded guilty with effective counsel and would have instead proceeded to trial. 14 See, e.g., Hill, 474 U.S. at 59 (“[I]n order to satisfy the ‘prejudice’ requirement, the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.”). Section II.B then explores the two major potential approaches to the new questions: the “burden” approach and the “presumption” approach. Section II.C looks to a range of state court decisions made since Frye and Lafler and considers how the standard laid out by the Supreme Court has (or has not) influenced state jurisprudence. This section examines decisions that discuss these new prejudice questions across two major state jurisdictions—Georgia and Florida—and assesses whether a presumption or burden approach is utilized in each.

Part III then evaluates whether either the presumption or burden approach is better suited to be a general rule in such cases, noting the difficulties faced by defendants making IAC claims based on forgone guilty pleas. This Part argues that both a commonsense understanding of how offered plea agreements function and the asymmetry between information possessed by defendants and by prosecutors suggest that a presumption approach more accurately evaluates potential prejudice to a defendant. As a result, the presumption approach strikes a better balance between protecting a defendant’s constitutional right to effective counsel and avoiding windfalls of leniency to undeserving defendants.