I. INTRODUCTION
The 2003 United States Supreme Court case Wiggins v. Smith1 left an understated though key mark on the Court’s ineffectiveness of counsel doctrine. Wiggins reiterated the pre-existing approach that, in Sixth Amendment ineffective assistance of counsel claims, a criminal defense counsel’s “strategic” decisions are entitled deference only so long as those decisions are supported by reasonable investigation when that decision necessitated such an investigation.2 However, calling a decision a strategic one is not a sure remedy for defense counsel in an ineffective assistance case.3 If counsel’s claimed investigation is seen by the Court as, in fact, unreasonable, his former client’s ineffective assistance claim is not doomed solely because counsel claims his action, or lack thereof, was a strategic or tactical decision.4
Wiggins serves as a reminder of the importance of the Strickland v. Washington5 test-the test that determines whether a criminal defendant’s Sixth Amendment right to effective counsel has been violated.6 Further, it serves as a warning that while attorneys are granted much deference in their counseling of criminal defendants, this deference is not unlimited.7 Wiggins describes the Strickland test in a way that is conceptually similar to the business judgment doctrine in corporate law. The theme of this Note is to explain these two doctrines-the Strickland test in its criminal sphere and the business judgment doctrine in its civil sphere-in order to highlight the striking similarities between them. Consequently, this Note begins with a discussion of the Strickland test. Part III chronicles the Strickland test as it was revisited in the Wiggins decision. Finally, Part IV describes the business judgment doctrine and how, in the corporate law context, it is conceptually similar to the Strickland test in the criminal context.
II. THE STRICKLAND TEST
Under the Sixth Amendment, defendants possess a constitutional right to counsel, and the Supreme Court has determined that this includes the right to effective assistance of counsel.8 Therefore, lawyers have a duty to act as competent advisors and provide competent representation to each client.9 However, should counsel fail in this duty, a defendant can seek post conviction relief and make a claim for ineffective assistance of counsel.10 Claims range from the more general, including lack of preparation and lack of requisite experience or skill in handling the case, to more spécifie claims, such as the failure to investigate an issue, the failure to object to evidence, or the failure to call or cross-examine witnesses.11
Strickland v. Washington established the legal principles that govern claims of ineffective assistance of counsel.12 The Strickland test has two prongs. First, the defendant must “show that his or her attorney’s performance was so ‘deficient’ that ‘counsel was not functioning as “counsel” guaranteed by the Sixth Amendment.’”13 To establish this, the defendant must show that counsel’s performance fell below an objective standard of reasonableness.14 While the Court has declined to articulate specific guidelines for appropriate attorney conduct, it has instead emphasized that the “proper measure of attorney performance remains simply reasonableness under prevailing professional norms.”15 In analyzing this prong, the reviewing court must begin with a presumption in favor of the attorney and must determine whether the strategy chosen by counsel was within the range of available, professional, reasonable judgments, giving the attorney room to make “tactical decisions.”16 Therefore, if counsel can show that his or her decision was a tactical one that was among available choices at the time, counsel’s performance will be presumed to be reasonable.17
Second, the defendant must also prove that the outcome of the case was due to the attorney’s performance at trial, thereby rendering the outcome so unfair that the outcome is unreliable.18 Further, in Lockhart v. Fretwell,19 the Court refined the Strickland prejudice prong, holding that the inquiry should not focus singularly on whether the outcome would have been different without the performance of counsel, but rather on whether the attorney’s performance made the proceeding fundamentally unfair or unreliable.20 Simply making a showing that counsel’s actions could have had an effect on the outcome of the trial or that the errors made by counsel might have been detrimental to the defense’s case is insufficient to show that the outcome of the case was prejudiced.21 The defendant must show that “but for counsel’s actions, the result of the proceeding would have been different.”22
In reality, the Strickland test has been nearly impossible to satisfy: “Courts have repeatedly refused to provide oversight of criminal defense attorneys … .”23 Specifically, the two elements needed to establish ineffective assistance of counsel have been almost impossible to prove in practice.24 One of the roadblocks for defendants seeking an appeal based on ineffective assistance is attempting to overcome the prejudice prong of Strickland?’5 Here, it is extremely difficult to prove that but for counsel’s actions, the outcome of the defendant’s trial probably would have been different.26 Often evidence against a defendant is so overwhelming that courts rule that, although the attorney’s performance may have been egregious, the outcome would have been the same even without the attorney’s poor behavior.27 In fact, opponents of the prejudice prong argue that “[i]n practice, . . . almost nothing short of proof of actual innocence will merit a reversal of conviction, however unfairly obtained.
