Appealing a verdict due to the lawyers being incompetent and or failing to follow instructions? Pretend there is a criminal court case against a defendant in England and Wales. The instructed solicitor from a firm, and barrister from a Chambers, do not follow the defendant's wishes regarding a certain piece of evidence as they incorrectly do not understand its value. As a result of this, they do not postpone the trial, and they do not hire an Expert Witness that would understand this evidence and why it is important. The defendant is unfortunately found guilty at trial, and annoyingly that piece of evidence is brought up but the defendant lacks the background and court room theatrics necessary to explain it to the jury when he/she was cross examined. Would the defendant have a right to appeal the verdict because of the lawyers (either their incompetence or for not following the defendant's instructions), and on what basis, quoting relevant law?
Here's a 2002 law review article by MP Henderson that does a rundown of ineffective assistance of counsel standards and precedents in both the UK and US (and also details shortcomings and inconsistencies in both, which is the true focus of the article, though not particularly relevant to this Q&amp;A). The short of the matter is that bdb484's summary of the basic standard for the US is essentially the same in the UK: both focus on the practical impact of the counsel, rather than the actual efficacy and skill of the counsel. Meaning that if the court concludes that the result of the trial would have been the same with an effective counsel, then the results of that trial will stand. This is usually phrased in legal parlance as a &quot;miscarriage of justice&quot; issue. This results in a few seemingly glaring absurdities being ignored when the evidence against the defendant is seen as too strong to defend against, like sleeping through trials. The specific case detailing the standard test in the UK is R (Aston) v Nursing and Midwifery Council [2004] EWHC 2368, and is essentially the same 2-part test as the Strickland test detailed in bdb484's answer: was the conduct outside the range of that of a reasonable counsel/advocate, and if so was it materially relevant enough to alter the verdict? The article I linked at the start states (with several citations, for the quotes in particular, here omitted): Courts in the United Kingdom are highly deferential to counsel's decisions. Also, there is a strong presumption that counsel's conduct will fall within the wide range of reasonable effective assistance. Additionally, courts in the United Kingdom will make allowances for the &quot;distorting effect of hindsight&quot;. As the result of such discretion, &quot;[c]onducting the trial without, or even contrary to, the instructions of the client, mere errors of judgment or even negligence, may not be sufficient to set up an inference of an unfair trial.&quot; And it's that last bit that's relevant to your question: simply defying the instructions of the client as concerns which evidence to present is not necessarily (and is unlikely to be) a basis for a successful claim of ineffective assistance of counsel. What constitutes a &quot;fair&quot; trial is a fairly broad umbrella; it doesn't require perfect counsel, nor that all conceivable avenues of defense be explored. Both UK and US lawyers are expected to both abide by the instructions of their client, while also being granted the leeway to present the case in the manner they deem best. This is spelled out quite clearly in the Scottish case Anderson v HM Advocate, where the High Court spelled out four points for what constitutes (in)effective assistance of counsel. To quote Henderson's summary again (which again has many citations here omitted) First, the accused has the right to a fair trial and to have his or her defense presented to the court. If counsel's conduct deprived the accused of those rights, a miscarriage of justice could result. Second, counsel must abide by the client's instructions, and not disregard those instructions. However, counsel must conduct the case as he or she thinks best. Third, counsel determines how the defense is presented, and the accused is bound by counsel's decision. Finally, counsel, not the accused, decides whether or not to attack the character of a Crown witness. Again, it's the third point that largely crushes your hypothetical's chances of success on grounds of ineffective assistance of counsel. For it is the counsel that ultimately decides how to present the defense, which includes what evidence and testimony to seek to include, and this is a binding decision upon the accused. The counsel in your hypothetical may have decided that the value of the evidence was significantly weaker than the client thought, and this generally falls under the umbrella of reasonable discretion for the advocate. Only if you can show the act to not present the evidence was outside the behaviors of a reasonable (generic) advocate, and also that it materially impacted the verdict, could you expect to prevail. As a bit of aside, there is something of an issue on whether or not there is a right to effective assistance of counsel in the UK. The right to a fair trial was really only expressly codified in The Human Rights Act of 1988, but that does not specify a right to effective counsel, only the right to a fair trial. A trial can be fair with no counsel at all. By contrast, in the US the 6th ammendment has been held to grant a right to both a fair trial and effective counsel in criminal matters, and the government must foot the bill to provide the accused with an attorney if requested/needed (the accused can waive this right, and there is a certain reasonableness where courts will eventually tell a defendant &quot;oh well, figure it out yourself&quot; if they keep rejecting their court appointed attorneys and demanding a new one). In the UK access to legal counsel is largely considered only available to those who can afford to pay for it, with the government fronting the bill only in exceptional cases (e.g. the courts deems it desirable to do so in the interests of justice). This right to a fair trial rather than a right to legal counsel seems to be why the UK currently places the emphasis on the practical impacts of the alleged ineffectiveness, rather than the alleged ineffectiveness itself. My understanding of US jurisprudence suggests it's rather more practical in justification: the courts don't want to do do-overs over procedural issues when the result is a fait accompli, as it consumes lots of time and resources and risks the general ravages of time on evidence, will, and memory.
Your belief in the truth of a statement is of only limited value in a defamation suit. Saying that a person is incompetent in that person's profession can certainly be defamation, and may even be defamation per se, depending on the jurisdiction. If the person sues and the speaker asserts truth as a defense, the speaker may have to prove that the statement is true. Why would one need to say anything at all in such a situation? Whether such a statement was a factual statement or a statement of opinion would depend very much on the detailed circumstances. But it is at least possible that a suit might be filed and won on this fact pattern. See this answer for more on defamation under US law.
You misunderstand the significance of the phrase "innocent until proven guilty." This is in part because you are not considering the entire phrase. The full phrase is that an accused party is "presumed innocent until proven guilty." This does not mean that the accused is innocent, only that criminal procedure must take as its starting point that the accused did not commit the crime. The major implication of the presumption, and indeed its original purpose, is that it places the burden of proof on the prosecution. This means that if a prosecutor asserts that you stole something, you do not have to prove that you did not. Rather, the prosecutor must prove that you did. The only reason to present evidence of your own is to rebut the prosecutor's evidence. Another practical implication is that a decision to detain someone awaiting a criminal trial may not be based on the assumption that the accused committed the crime. On the other hand, that decision is not based on the assumption that the accused did not commit the crime. There is a presumption of innocence, but no assumption of innocence, and the government is not obliged before the person is convicted to treat the person as if there is no accusation or charge. Wikipedia has a decent discussion. If we modify your question accordingly, it becomes How can two people be presumed innocent until proven guilty if their stories conflict? Now the answer should be clear. The prosecutor must develop evidence that shows which one of the people has committed the crime. If the prosecutor cannot do that, neither person may be punished.
I will assume that your question pertains to the United States. In other jurisdictions, different rules could apply. Context matters. The usual penalty for spoliation of evidence (the technical term for what you describe) in a civil case is a judicial determination or jury instruction that the evidence destroyed would have established the relevant part of the other side's case had it not been destroyed. In all of these cases, your failure to take affirmative action to preserve the evidence once you knew that there was a bona fide likelihood that you would be sued could be held against you by making an adverse determination that the evidence would have been unfavorable to you and possibly also money sanctions. You could not be held in contempt of court for this if these events happened before a case was commenced. In a criminal case, where you are a defendant, you have an absolute right to not incriminate yourself and do not have to take affirmative action to preserve evidence, although this right is limited to criminal cases and your failure to preserve evidence can still be held against you in a civil case. Certainly, in situation 4 you are a potential criminal defendant, so the 5th Amendment protection would apply. In situations 1 and 2, where the precautions were not put in place to facilitate a crime, the 5th Amendment would protect you if you were a potential criminal defendant, but suppose that you are a bystander like a third party ISP representative. If you were a third party, at a minimum you would have to be put on notice of the police need for the evidence, would probably have had to have had the police ask you for the evidence, and of course, would have to be aware that the destruction was imminent and have the power to prevent that destruction. If all those conditions were present, you might be guilty of obstruction of justice (there are precedents for inaction knowing of the consequences in the fact of a police question amounting to obstruction of justice). In situation 3, this kind of action pretty much amounts to being an accessory to some crime before the fact (unless someone was successfully deceived by a very elaborate story) and would likely make anyone involved part of a conspiracy to commit the crime that the destruction of the papers would facilitate. While the papers themselves might have been evidence of a crime or civil wrong, the destruction of the papers might itself be considered part of the crime, regardless of what could be established regarding the actual content of the papers.
Generally speaking, witnesses are not legally represented at trial, unless they are also parties. While a witness may choose to seek legal advice about a request or order they have received to give evidence, they would generally be expected to take this opportunity before they actually show up at trial. A witness examination would not normally be adjourned because a witness said something damaging to their own credibility or to one party’s case, and would like to pause and obtain legal advice. One goal of cross-examination is to expose unreliable evidence by obtaining this kind of tactical advantage over a witness. It is up to the party whose case was damaged to try to fix the problem in re-examination or reply evidence. That party may not be particularly interested in protecting the witness’s personal interests. There may be exceptions in specific factual situations, when it becomes clear that a witness does not understand their right to object to giving evidence on the grounds of self-incrimination or some other privilege. A judge may choose to halt further questioning of the witness if there is a real risk of a mistrial or some other procedural unfairness, which can be addressed without unfairly depriving the cross-examiner of their opportunity to challenge the evidence.
Because it's explicitly a jury of your peers That is, every person is entitled to have their guilt or innocence decided by people &quot;like them&quot; - not kings, lords or, heaven forbid, lawyers. The jury doesn't need to know the law and indeed, in many jurisdictions, lawyers are explicitly disqualified from jury service (hint: if you want to avoid jury service, get a law degree). The role of the jury is to decide the facts - what happened and whether that meets the prosecution's burden of proof. The jury is told what the law is by the judge - that's their job. Most law shows on TV skip over the very important role of the judge's instructions to the jury. These usually go along the lines of (greatly abridged and paraphrased) &quot;If you decide that X, Y &amp; Z are true then you must return a guilty verdict but if any of them are not true you must return not guilty.&quot; A very brief potted history of the jury system is contained in this answer: Why 12 Jurors, why not 11, 10, 9, 1? Now, this is, according to those from common law traditions, the great truth and beauty of the jury system. To those from civil, sharia and other legal traditions: it's just stupid.
It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question.
There are two important points you need to consider: jurors cannot be challenged (in the US sense), and the judge has wide discretion to handle any problems that arise in his court. If a juror has prior knowledge of the case, or could not be expected to be impartial, the judge (or sometimes the bailiff) will excuse him, and bring in one of the three replacements. If either side's lawyers dislike the look of a juror, they may if the judge allows ask questions to elicit such reasons, and then ask the judge to disqualify (I was on a jury where one of my colleagues was a policeman, and the defence suggested that he could not be impartial; the judge asked some questions and then excused him, and I understand he was never actually empanelled that week). But you are not permitted to select jurors you think will favour you or (equivalently) to ask to dismiss a juror without a factual disqualification; you can't, for example, ask about a juror's politics. Disqualifying a juror is thus rare, and the chance of four jurors having ties to a particular case is so remote as to be not worth worrying about. The second point, and the reason why written authority is hard to find, is that the judge has almost unlimited discretion over any action in his Court that does not infringe statute. There was a case in the newspapers recently where a juror discussed the case he was hearing in the pub, and was therefore dismissed from the jury; the judge consulted prosecution and defence and decided to proceed with eleven jurors rather than start the trial again. This does not mean that 'any trial can be heard with eleven jurors'; it means that in that particular case justice was best served by continuing. There is always the option to request a mistrial (which may or may not be granted) or to say that, a fair trial now being impossible, you intend to appeal on this point; but failing that the judge's decision on any procedural point is binding.