U.S. v. McIntosh, 74 M.J. 294

Military Justice Personnel: Defense Function: Effective / Ineffective Assistance of Counsel

1. to establish ineffective assistance of counsel, an appellant must demonstrate both (1) that his counsel’s performance was deficient, and (2) that this deficiency resulted in prejudice; with respect to the first prong, courts must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; as to the second prong, a challenger must demonstrate a reasonable probability that, but for counsel’s deficient performance, the result of the proceeding would have been different
2. while defense counsel would normally be expected to introduce potentially exculpatory evidence, their performance is not deficient when a tactical reason cautions against admission
3. there is a strong presumption that defense counsel’s performance was within the wide range of reasonable professional assistance
4. in this case, defense counsel’s decision not to introduce into evidence two Sexual Assault Nurse Examiner (SANE) reports that were arguably exculpatory in that they showed the victim’s hymen to be intact and because they bookended the period of rape and sexual assault did not amount to ineffective assistance of counsel; defense counsel’s performance was not deficient and, therefore, not constitutionally ineffective because their performance fell within the wide range of reasonable professional assistance; the defense counsel’s choice not to use the reports was a considered one, made after consultation with an expert in the field of SANE examinations and after discussion with appellant; first, the defense expert confirmed that the lack of abnormal findings in a sexual assault examination did not conclusively rule out the possibility that a sexual assault occurred; second, the primary defense theory was that the government failed to prove the charges beyond a reasonable doubt, in part because the government offered no medical evidence to support the victim’s testimony, and admitting the reports would have undermined this tactic and opened the door to cross-examination of the SANEs to the effect that an intact hymen did not preclude the victim having been raped; third, one of the SANE reports indicated that the victim suffered pain when her genitalia were touched, something that a factfinder might see as evidence of guilt; and fourth, admission of the SANE reports would require discussion of the intrusiveness of the sexual assault exams - facts the panel could possibly hold against appellant; under these circumstances, appellant failed to overcome the strong presumption that defense counsel’s performance was within the wide range of reasonable professional assistance, and without deficient performance, there could be no ineffective assistance

Core Criminal Law Subjects: Burdens, Standards, Presumptions, Inferences: Appellate Burdens, Standards, Etc. › Presumptions

1. there is a strong presumption that defense counsel’s performance was within the wide range of reasonable professional assistance

Trial Stages: Appeals: Standards of Review, Burdens, etc.

1. in reviewing for ineffectiveness of counsel, an appellate court looks at the questions of deficient performance and prejudice de novo
2. there is a strong presumption that defense counsel’s performance was within the wide range of reasonable professional assistance