Also known as: prevailing norm of practice · customary practice
Written by attorneys — see sources below.
An objective benchmark of reasonable professional conduct drawn from established guidelines and customary practices. It supplies a reference point for assessing whether conduct satisfies applicable duties without creating a rigid checklist of required steps.
NovaApps and SkyCloud sign a service agreement silent on backup frequency. In their technology sector vendors almost always run hourly backups. A court treats the hourly practice as the relevant benchmark when interpreting the parties' obligations under the agreement.
Defense counsel in a capital case fails to pursue readily available mitigation records despite ABA guidelines calling for thorough investigation. The court measures counsel's performance against prevailing norms of practice and finds the omission unreasonable under all the circumstances.
In September 1976, respondent David Washington committed a series of crimes over a ten-day period in the Miami area that included three brutal stabbing murders along with torture, kidnapping, severe assaults, attempted murders, attempted extortion, and theft. After his two accomplices were arrested, Washington surrendered to police and gave a lengthy statement confessing to the third criminal episode. The State of Florida indicted him for kidnapping and murder and appointed an experienced criminal lawyer to represent him. Washington waived his right to a jury trial against counsel's advice and pleaded guilty to all charges, including the three capital murder counts. In the plea colloquy he stated that he had committed a string of burglaries but had no significant prior criminal record and that he had been under extreme stress caused by his inability to support his family. Counsel spoke with Washington about his background, contacted his wife and mother by telephone, but did not seek out character witnesses or request a psychiatric examination. At the sentencing hearing before the trial judge, counsel's strategy relied primarily on the plea colloquy to convey remorse and emotional stress and argued that these factors justified sparing Washington the death penalty. Counsel successfully moved to exclude Washington's rap sheet and decided not to request a presentence report because it would have included his criminal history. The trial judge found multiple aggravating circumstances for each murder and no mitigating circumstances, sentencing Washington to death on each of the three murder counts. The Florida Supreme Court affirmed the convictions and sentences on direct appeal. Washington sought collateral relief in state court, claiming ineffective assistance of counsel on six grounds including failure to request a psychiatric report, investigate and present character witnesses, and seek a presentence investigation report. He submitted fourteen affidavits from friends, neighbors, and relatives willing to testify and two reports from a psychiatrist and psychologist. The state trial court denied relief without an evidentiary hearing, and the Florida Supreme Court affirmed. Washington then filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Florida. After an evidentiary hearing at which trial counsel testified, the District Court denied relief, concluding that although counsel made errors in judgment by failing to investigate mitigating evidence further, no prejudice resulted. The Court of Appeals for the Fifth Circuit reversed and remanded for application of a new framework it developed for analyzing ineffectiveness claims. The Supreme Court granted certiorari to consider the proper standards for judging claims of ineffective assistance of counsel in a capital sentencing proceeding.
View caseA trial judge relies on a confidential presentence report containing undisclosed aggravating facts when imposing a death sentence. The reviewing court evaluates whether the nondisclosure deviated from prevailing norms of practice that require defense access to materials influencing the sentence.
On June 30, 1973, the petitioner assaulted his wife with a blunt instrument, causing her death. On January 10, 1974, after a trial in the Circuit Court of Citrus County, Florida, a jury found him guilty of first-degree murder. The separate sentencing hearing required by Florida law in capital cases was held later on the same day. The State merely introduced two photographs of the decedent, otherwise relying on the trial testimony. Petitioner testified that he had consumed a vast quantity of alcohol during a day-long drinking spree which preceded the crime and professed to have almost no recollection of the assault itself. After hearing this evidence the jury was instructed to determine by a majority vote whether the State had proved one of the aggravating circumstances, whether mitigating circumstances outweighed any such aggravating circumstance, and based on that determination, whether the defendant should be sentenced to life or death. After the jury retired to deliberate, the judge announced that he was going to order a presentence investigation of petitioner. Twenty-five minutes later the jury returned its advisory verdict finding that the mitigating circumstances outweighed the aggravating circumstances and advising the court to impose a life sentence. The presentence investigation report was completed by the Florida Parole and Probation Commission on January 28, 1974. On January 30, 1974, the trial judge entered findings of fact and a judgment sentencing petitioner to death. There is no dispute about the fact that the presentence investigation report contained a confidential portion which was not disclosed to defense counsel. The trial judge did not comment on the contents of the confidential portion. On appeal to the Florida Supreme Court, petitioner argued that the sentencing court had erred in considering the presentence investigation report, including the confidential portion, in making the decision to impose the death penalty. The per curiam opinion of the Supreme Court did not specifically discuss this contention but merely recited the trial judge’s finding, stated that the record had been carefully reviewed, and concluded that the conviction and sentence should be affirmed. The record on appeal, however, did not include the confidential portion of the presentence report. Two justices dissented, regarding the evidence as sufficient to establish a mitigating circumstance as a matter of law and concluding that it was fundamental error for the trial judge to rely on confidential matter not provided to the parties. Petitioner’s execution was stayed pending determination of the constitutionality of the Florida capital-sentencing procedure. Following the decision in Proffitt v. Florida, the Court granted certiorari in this case to consider the constitutionality of the trial judge’s use of a confidential presentence report in this capital case.
View caseThey serve as guides rather than a checklist. A court asks whether counsel's conduct was reasonable in light of all circumstances, using ABA standards and similar sources to illuminate the range of competent performance.
Yes. Prevailing norms supply only a reference point. The ultimate test remains whether counsel's performance satisfied the proper functioning of the adversarial process under the particular facts.
No. No particular set of detailed rules can account for the variety of circumstances defense counsel face, so norms remain flexible guides rather than mandatory prescriptions.
…claim, the performance inquiry must be whether counsel's assistance was reasonable considering all the circumstances. Prevailing norms of practice as reflected in American Bar Association standards and the like, e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d ed. 1980) ("The Defense Function"), are guides to determining…