Immediate Inquiry Into Allegations of Inadequate Representation
The only cases in which we have recognized a duty to conduct an immediate inquiry into allegations of inadequate representation that are raised during trial are those in which it appears that counsel's performance may be affected by a conflict of interest.
See, e.g., Witherspoon v. United States, 557 A.2d 587, 590 (D.C. 1989);
Singley v. United States, 548 A.2d 780, 786 (D.C. 1988);
Douglas v. United States, 488 A.2d 121, 136 (D.C. 1985).
In such cases, as in those involving pre-trial claims of ineffective assistance, the trial court is not required to consider the possible prejudicial effect on the outcome of the trial. See, e.g., Farrell, 391 A.2d at 760-762.
Instead, when a claim of ineffectiveness is premised on an alleged conflict of interest, the test to be applied in analyzing that claim is merely whether "a conflict of interest actually affected the adequacy of counsel's representation . . . ." Cuyler v. Sullivan, 446 U.S. 335, 349-350, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980); accord, e.g., Singley, 548 A.2d at 786.
The Strickland test, by contrast, requires the defendant to demonstrate not only deficient performance but also "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694.
The problem with applying the Strickland test in the middle of an ongoing trial is that the "result" or "outcome" of the proceeding has yet to be determined.
Thus the trial court would be required to assess prospectively the likely prejudicial effect of counsel's alleged errors before it has had an opportunity to hear all the evidence in the case, and before the jury, if there is one, has even begun to deliberate.
This approach would be particularly unworkable when, as in the case at bar, a claim of ineffective assistance is raised after the government concludes its case in chief but before the defense presents its case.