This case gives the court en banc the opportunity to present its views on the requirement of effective assistance of counsel in criminal prosecutions, with principal focus on the duty of counsel to make due investigation prior to trial. We conclude that appellant has not made the showing requisite for reversal of his conviction.
A. Proof at Trial
At trial, Roger Crump, a soldier, testified that he was accosted by three men at about 6 p. m. on May 29, 1970, on the sidewalk at 8th and K Streets, N.W., near the parking lot of the Golden Gate Bar. He was yoked from behind by one man, threatened with a razor by another, while a third rifled his pockets and took his wallet which contained over $100 in cash.
Two plainclothes policemen cruising in an unmarked car saw the robbery in progress, alighted and gave chase. One officer followed the man later identified as Fred Eley. Officer Box testified that he followed appellant Decoster — whom he identified as the robber who went through Crump’s pockets — from the scene to and into the *200D.C. Annex Hotel, found him at the lobby desk and arrested him. He testified that the chase lasted two to three minutes, that he did not lose sight of appellant and that Crump, who had been following along, immediately identified Decoster as one of the robbers. Crump was unable to identify De-coster at trial, because in the meanwhile his sight had been impaired in an accident, but he testified that he had been positive of his identification when he made it in the hotel. A search of appellant’s pockets did not turn up any money, and the wallet was never recovered.
Appellant testified he had met and had a few drinks with Crump at the Golden Gate Club bar, but had left Crump in the bar, walked back to the hotel about a block away, and was getting his key from the desk clerk when he was arrested.
The defense called Eley. He (as well as the other codefendant, Taylor) had already pleaded guilty at a time when Decoster, having jumped bail, was a fugitive from justice. Eley corroborated that Decoster had met Crump in the bar (a point on which Crump was unsure). However, he also testified that he had seen appellant fighting with Crump in the parking lot across from the bar — and as to this contradicted appellant.
Decoster’s conviction for aiding and abetting an armed robbery, which resulted in a 2-8 year sentence, is on appeal to this court.
B. Subsequent Proceedings
When the appeal was first before this court, the panel, while rejecting the contentions presented by appellate counsel, remanded for a hearing on the issue of ineffective assistance of counsel, an issue that it raised su a sponte and directed be presented to the district court on motion for a new trial.1 The panel ruled that a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. Giving content to this standard, the panel adopted duties owed by counsel to his client derived in large part from the guidelines for the defense function promulgated by the American Bar Association Project on Standards for Criminal Justice.2 The panel then held that once the appellant had shown a substantial violation of a duty owed to him by counsel, the burden was on the government to demonstrate lack of prejudice.
Pursuant to the remand, the motion for new trial was filed November 1, 1973. In February, 1974, District Judge Joseph Wad-dy held three days of supplementary hearings on the adequacy of trial counsel. On April 23, 1975, with findings of fact and conclusions of law, he entered an order denying the motion for a new trial.
On October 19, 1976, the panel of this court, one member dissenting, reversed the judgment of conviction, holding that appellant had been denied the effective assistance of counsel. Essentially, the panel opinion (referred to as Decoster II) concluded that trial counsel had violated his duty to conduct a factual investigation. On March 17, 1977, the court granted the government’s motion for rehearing en banc, vacated the panel opinion, and provided for supplemental briefs and oral argument.
C. Guiding Principies
The Sixth Amendment guarantees that “in all criminal prosecutions, the accused shall . . have the Assistance of Counsel for his defense.” In giving content to this provision, the courts have recognized the need for differing approaches depending on the nature of the particular claim of denial of assistance in each case. These differences stem from the courts’ perceptions of the exactness with which a denial can be identified and remedied, as well as their views of the need for a showing of prejudice.
*201The cases present a continuum. At one end are cases of structural or procedural impediments by the state that prevent the accused from receiving the benefits of the constitutional guarantee. The most obvious example is, of course, the failure of the state to provide any counsel whatever. The Supreme Court long ago held that the Sixth Amendment requires that the federal courts provide counsel for indigent defendants charged with felonies under federal law.3 As to the states, the Court first defined the right to counsel as an aspect of a fair trial,4 with the eventual result that the right was restricted to less than that provided in the federal courts.5 Gideon6 made the Sixth Amendment applicable to the states by incorporation into the Fourteenth Amendment. Today the Sixth Amendment requires that counsel be provided not only in all felony prosecutions,7 but also in all prosecutions for misdemeanors that result in imprisonment.8
The right to have counsel provided is so fundamental that, like the admission in evidence of a coerced confession,9 or trial before an interested judge,10 the violation of the constitutional right mandates reversal “even if no particular prejudice is shown and even if the defendant was clearly guilty.”11 In this area, the doctrine applied is more stringent than that applicable to most denials of constitutional rights — permitting affirmance when the government shows beyond a reasonable doubt that the violation did not affect the conviction.12
“Effective” assistance of counsel13 is denied by a statute that, while permitting a defendant to make an unsworn statement, bars the defendant from having his testimony elicited by counsel through direct examination; 14 by a statute that restricts counsel in deciding when to put the defendant on the stand;15 by a statute that gives the judge in a non-jury trial the power to deny defense counsel closing summation;16 and by a trial court order directing a defendant not to consult with his attorney during an overnight recess that falls between direct and cross examination.17 These state-created procedures impair the accused’s enjoyment of the Sixth Amendment guarantee by disabling his counsel from fully assisting and representing him. Because these impediments constitute direct state interference with the exercise of a fundamental right, and because they are susceptible to easy correction by prophylactic rules, a categorical approach is appropriate.
*202A less clearcut rule emerges from the cases on multiple representation. The principle is stated categorically — to require an attorney to represent co-defendants whose interests may conflict denies the right to effective assistance of counsel.18 No showing of prejudice is necessary. However, because there is no absolute requirement that every defendant have his own attorney,19 the application of the rule requires some factual analysis to determine whether divergent interests that justify separate counsel may in fact exist. The factual analysis will not be exhaustive. As the Supreme Court has recently indicated, the courts must rely, by and large, on the representations of defense counsel that potential conflicts exist, since a thorough scrutiny might require the attorney to reveal the confidences of his client.20
The problem of late appointment moves us farther along the continuum. The Supreme Court has long recognized that sufficient time to prepare a defense is a vital element of effective assistance.21 Late appointment of counsel resembles the state-created restrictions on counsel’s ability to assist and represent his client. Yet in its 1970 Chambers opinion,22 the Supreme Court indicated categorical rules were not appropriate in this area. Although the Court’s treatment was cursory, it made clear that determining whether counsel was ineffective due to late appointment turned on the facts of the case. The Court emphasized, “we are not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel.” 23
At the other end of the continuum are cases, including the present one, in which the issue is counsel’s performance when he is “untrammelled and unimpaired”24 by state action. The Supreme Court has never addressed this issue frontally, though it has indicated — albeit in abbreviated fashion— that it does not contemplate simplistic or categorical approaches.
The Court has twice held that reliance on the erroneous advice of counsel does not negate an intelligent and voluntary guilty plea, so long as the advice fell “ ‘within the range of competence demanded of attorneys in criminal cases.’ ”25 The Court recognized the “inherent uncertainty in guilty-plea advice” and rejected any requirement of a per se rule invalidating guilty pleas. It emphasized that to undo a guilty plea, the defendant must show “serious derelictions on the part of counsel.”26 In the 1976 Agurs case,27 the Court ruled that defense counsel’s failure to request the criminal record of a murder victim did not demonstrate *203ineffective assistance.28 The Court’s opinion is without explication but is significant, since what was apparently involved was a failure of defense counsel to pursue potential sources of aid to the defense available without inordinate effort — and yet the Court abruptly negatived the possibility of a constitutional claim.
While the reasons for a non-categorical approach were not developed in Agurs, they are not difficult to discern. The defense attorney’s function consists, in large part, of the application of professional judgment to an infinite variety of decisions in the development and prosecution of the case. A determination whether any given action or omission by counsel amounted to ineffective assistance cannot be divorced from consideration of the peculiar facts and circumstances that influenced counsel’s judgment. In this fact-laden atmosphere, categorical rules are not appropriate.
Over and above — or should one say below — the Supreme Court opinions, there has emerged a considerable body of circuit and state court law on the issue of ineffective assistance. Several reflective judges have recognized that differing approaches are pertinent where different aspects of the assistance of counsel are involved. Judge Bright, writing for the Eighth Circuit, has noted that while the total absence of counsel cannot but be harmful, when a defendant is represented by counsel and the performance of counsel has fallen below the accepted standard, “the seriousness of this constitutional violation must be judged in terms of the particular factual circumstances of that case.”29
Recently, Judge Browning, writing for the Ninth Circuit en banc in Cooper v. Fitzharris,30 pointed out that the rulings that a defendant need not show prejudice involved an absolute denial of counsel or a structural impediment to counsel’s effective performance. In a case involving the quality of performance, as reflected in acts or omissions at trial, the accused must prove not mere errors but “serious derelictions”31 and that counsel’s errors prejudiced the defense. Judge Hufstedler’s dissent put it that a defendant with a “totally inept counsel” would not also have to show “precisely” how he was affected,32 but this opinion acknowledged that courts consider “prejudicial impact of attorney behavior” in determining whether the attorney was constitutionally competent,33 and further recognized that in many cases the outcome would be the same under both majority and dissenting approaches.
The task remains of delineating the non-categorical criteria that are to be applied in evaluating claims of inadequate performance by counsel. It is now clear that the courts will not abstain completely from some oversight of counsel’s performance. At one time this court came close to abstention, in the 1945 Diggs case34 adopting the “farce and mockery” standard. Even under that standard counsel’s performance was on occasion found so delinquent as to prompt judicial correction,35 but the occasions were rare. In the 1958 Mitchell opinion,36 Judge Prettyman in effect defended an approach of nonintrusion into the attorney/client relationship. Some of his observations still have merit, but they survive today as reasons for limiting the degree of judicial intrusion, not as a brief for abstention. *204Judge Fahy dissented, on the ground that a hearing was required on the ultimate question whether the conviction “rests in substantial degree” upon a course reflecting a lack of professional skill.37
Our 1967 Bruce opinion,38 which Judge Bazelon joined as to this issue, laid down a standard that recognized the need for more judicial oversight. It was put that “ineffective assistance” was established where “there has been gross incompetence of counsel and . . . this has in effect blotted out the essence of a substantial defense.”39 Bruce thus departed from Diggs and Mitchell, as has been recognized by this court40 and others.41 Although not stated explicitly, the Bruce departure was obviously away from Fifth Amendment due process concepts to a Sixth Amendment approach to the problem of ineffective assistance.42 And Bruce went beyond that to state that a less powerful showing of ineffectiveness was required on direct appeal than that necessary to support a collateral attack.
We pause to take note of the formulations adopted by the other circuits. As Justice White has put it, the circuits are in “disarray.”43
One prominent formulation appears in the Third Circuit’s 1970 Moore opinion as a standard of “normal competency:” “the exercise of the customary skill and knowledge which normally prevails at the time and place.”44 This is essentially a negligence standard. Indeed the Third Circuit cited the American Law Institute’s formulation of the standard for civil liability of an attorney.45 However, as the ALI points out, the mere fact that performance falls below average does not equal negligence. Thus, the question remains of what departures from a potential “norm” are so egregious as to call for judicial interposition.
Other circuits have adopted variations on a notion of “reasonable” competence,46 us*205ing tests that suffer from the same uncertainties as the Third Circuit’s. The Seventh Circuit has held that a defendant is entitled to assistance of counsel that meets a “minimum professional standard.”47 In the last analysis, all the circuits recognize that the performance of counsel must fall below a minimum, not just an abstract “norm.” There must be “serious derelictions.”48
Some circuits have attempted to give content to their standards by adopting, explicitly or by implication, specific duties the violation of which amounts to ineffective assistance. The panel of this court that wrote DeCoster I employed — with some embellishment — the standards for the defense function promulgated by the American Bar Association 49 In Decoster II the panel referred to these DeCoster I requirements as “the minimal components of ‘reasonably competent assistance,’ ”50 although in both opinions the panel qualified these duties by requiring a “substantial” violation.51
The ABA Standards, however, were not put forward by the ABA as either exclusively “minimum” standards or as “a set of per se rules applicable to post-conviction procedures.”52 Rather, they constitute a “blend of description of function, functional guidelines, ethical guidelines and recommended techniques,”53 a mixture of the aspirational and the obligatory.
Even those circuits that formulated an apparently categorical approach to these problems have shown restraint in actual application to the specific facts presented. While in Coles v. Peyton54 the Fourth Circuit laid down duties of defense counsel, including an unqualified duty to investigate, in Jackson v. Cox,55 the court apparently limited Coles, by distinguishing it as a case of virtually complete lack of investigation that was not controlling in a case where there were shortfalls in investigation, yet counsel had performed more than a “perfunctory” investigation. Similarly, the Third Circuit’s 1971 Green opinion56 has tempered any implication of Moore that it sufficed to identify specific aspects of incompetency. The District Court had granted habeas corpus because of unfairness due to the consolidation of rape and assault indictments arising out of unrelated events.57 In reversing, the Third Circuit stressed that the acquiescence of defense counsel in the consolidation was based on information furnished by the client that suggested a connection between the events. This course was accepted as not outside “the range of normally competent representation,” even though defense counsel acknowledged that he was not aware that the police version of the events differed significantly from that of his client.58
Finally, we find support in the recent 1979 decision of the California Supreme *206Court in the Pope59 case. As we have already noted, both majority and dissenting opinions of the Ninth Circuit’s 1978 en banc decision in Cooper v. Fitzharris acknowledged that the determination of lack of competence requires an assessment of both materiality and likely prejudice, with the opinions differing only as to the rule applicable to a defendant with a “totally inept counsel.”60 The California state court in Pope also disclaimed a categorical approach. In discarding the “farce or sham” standard, the court articulated “basic duties” of defense counsel that it characterized as “constitutional obligations,” using the DeCoster I approach of the “reasonably competent attorney acting as a diligent, conscientious advocate.” However, after establishing that defense counsel had failed to perform in accordance with that standard, defendant still had the additional burden of establishing that “counsel’s acts or omissions related in the withdrawal of a potentially meritorious defense.’.’61 This differs in degree but not in kind from Bruce (“blott[ing] out the essence of a substantial defense”), and requires a showing of likely effect on outcome.
This brief survey underscores that generalized standards may be little more than a “semantic merry-go-round.”62 Our Bruce opinion was one formulation and other courts have used others — but in the last analysis they are necessarily limited efforts to describe that courts will condemn only a performance that is egregious and probably prejudicial. As put by Justice Kaplan in the Massachusetts Saferian case:
Whatever the attempted formulation of a standard in general terms, what is required in the actual process of decision of claims of ineffective assistance of counsel, and what our own decisions have sought to afford, is a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer — and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of de-fence.63
For the first condition of judicial intervention, Saferian speaks of “serious incompetency, inefficiency or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.” This may fairly be regarded as a refinement of the “gross incompetence” language of Bruce. The other condition is more important. Bruce required that the accused show that the deficiency “blotted out the essence of a substantial defense.” But Saferian requires only that the accused show that counsel’s deficiency “likely” deprived him “of an otherwise available, substantial ground of defense.” This is an appropriate modification of Bruce.64 Overarching concepts of justice tug on the court whenever it is seriously troubled by likelihood of injustice, even though there is no concrete establishment of injustice as a fact.
*207In effect this consideration was identified in Bruce, where the court noted that on direct appeal the accused would be held to a lesser showing than that required for collateral attack. Bruce was in harmony with a similar observation by Judge Fahy, dissenting in Mitchell65 In general, including matters totally unrelated to performance of counsel, a federal appellate court has statutory authority to reverse convictions when this is “just under the circumstances.”66 Exercise of this authority may depend in some measure on a concern over the way the case was handled. It does not depend on a determination that there has been a lack of “effective assistance of counsel” in the constitutional sense. Indeed, in the Dyer case,67 cited in Bruce68 the court noted counsel’s general competence and the difficulties of “trying circumstances” and “an uncooperative client.” Nonetheless, the court had “misgivings” as to the adequacy of the defense “in net result” that caused it to reverse, on direct appeal, without any statement that the defendant had been denied effective assistance of counsel. On direct appeal the appellate court has latitude to exercise its supervisory function over the administration of justice in the court(s) subject to its review.69 That latitude is not fully available when a challenge is presented on collateral attack.70
Collateral attack requires a showing of violation of constitutional rights — save for the “exceptional circumstance” of a claim that both could not have been raised on appeal and that constituted a “fundamental defect which inherently results in a complete miscarriage of justice.”71 It may also be noted, without now attempting any doctrinal declarations, that the availability of collateral attack is also affected by concerns such as respect for finality of judgments and conservation of judicial resources, concerns that emerged in Stone v. Powell.72 Although the distinction between direct appeal and collateral attack, in terms of scope of cognizable problems, was not made the subject of separate discussion and justification in Bruce, it has been reaffirmed73 and has current vitality.
Although direct appeal gives more latitude to the court, the difference is likely *208one of application rather than formulation of standards. On direct appeal, as on collateral attack, the court is still concerned with the two considerations focused in Safe-rian. The claimed inadequacy must be a serious incompetency that falls measurably below the performance ordinarily expected of fallible lawyers. And the accused must bear the initial burden of demonstrating a likelihood that counsel’s inadequacy affected the outcome of the trial. Once the appellant has made this initial showing, the burden passes to the government, and the conviction cannot survive unless the government demonstrates that it is not tainted by the deficiency, and that in fact no prejudice resulted.74
The need for a criterion that requires defendant to show at least probable effect on outcome has been identified even by judges seeking to liberalize Sixth Amendment protection.75 Such a criterion achieves a realistic resolution of the pertinent legal tensions.
The court’s appraisal requires a judgmental rather than a categorical approach. It must be wary lest its inquiry and standards undercut the sensitive relationship between attorney and client and tear the fabric of the adversary system. A defense counsel’s representation of a client encompasses an almost infinite variety of situations that call for the exercise of professional judgment. A shortfall by defense counsel that is perceptible but is modest rather than egregious is no basis for judicial interposition — as appears from Agurs, Bruce, Saferian and the other cases cited. This limitation preserves the freedom of counsel to make quick judgments, and avoids the possibility that there will be frequent and wide-ranging inquiries into the information and reasoning that prompted counsel to pursue a given course. The problem is complicated by the fact that these decisions often derive from the information supplied by the client.
For the law to encourage a wide-ranging inquiry, even after trial, into the conduct of defense counsel would undercut the fundamental premises of the trial process and transform its essential nature.76 The resulting upheaval in the role of the trial judge, widely recognized as a serious difficulty,77 would in itself call into question any broad doctrine of ineffective assistance. And the prosecution in a criminal case would in turn ask to oversee defense counsel’s conduct at trial — to ensure against reversal.
An even more difficult problem would be posed by the supervision of defense counsel’s development of the case before trial. Even if we had the authority, it would be unwise to embark upon a doctrine that would open the door to a fundamental reordering of the adversary system into a system more inquisitorial in nature. The adversary system, warts and all, has worked to provide salutary protection for the rights of the accused. Efforts to improve the *209performance of defense counsel should not imperil that protection.
The approach we have outlined is congruent with most of the decisions of this court, including United States v. Pinkney78 An exception should be noted for DeCoster I —not for the result, but some of the broad observations.
D. The Duty To Investigate
The duty to investigate is a subset of the overall duty of defense counsel. A conscientious defense attorney will naturally investigate possible defenses. As part of this process, witnesses who may have information relevant to the case should be identified and interviewed. However, any claim of ineffectiveness must turn not on abstractions as to duty, but on an appraisal of consequences. And the development of the case before trial is an area of peculiar sensitivity in the attorney/client relationship.
Some failures to investigate may be so egregious as to command judicial correction without more. In McQueen v. Swenson,79 the defense counsel had adopted a blanket policy which he adhered to even in the face of requests by the defendant that certain persons be interviewed. This was held “an absurd and dangerous policy which can only be viewed as an abdication — not an exercise — of his professional judgment.”80 Counsel’s defect was subject to a simple, workable remedy and thus was a proper subject for judicial intervention.
Most claims of failure to investigate will not involve such clearcut situations. They must be appraised in light of the information available to the attorney. A claim of failure to interview a witness may sound impressive in the abstract, but it cannot establish ineffective assistance when the person’s account is otherwise fairly known to defense counsel. This is the teaching of our 1974 Glayborne opinion.81 As Judge MacKinnon, joined by Judge McGowan, and writing over Judge Bazelon’s dissent, pointed out: “[T]rial counsel had their own clients as sources of information.” 82
Realistically, a defense attorney develops his case in large part from information supplied by his client. As the Third Circuit indicated in Green,83 choices based on such information should not later provide the basis for a claim of ineffectiveness even though that basis would have been undercut by inquiry of others. Judicial intervention to require that a lawyer run beyond, or around, his client, would raise ticklish questions of intrusion into the at*210tomey/client relationship, and should be reserved for extreme cases where an effect on the outcome can be demonstrated. And so in Matthews v. United States,84 involving a claim that counsel was ineffective in failing to introduce evidence or call witnesses, then Circuit Judge Stevens focused on the failure to allege that such witnesses or evidence existed, adding:
Petitioners have not told us what was said in their conference with counsel. Perhaps, for all we know, they merely explained that they had indeed forged the 35 ballot applications which were placed in evidence by the government and that they were indeed guilty as charged. Surely, if that were the case, counsel had no duty to search for witnesses, expert or otherwise, who might falsely testify to the contrary.85
Our reflections on this point are congruent with the standard applicable when counsel for an indigent defendant seeks funds to obtain investigative services to assist in the preparation of the defense. While in general effective assistance of counsel embraces such an allowance it is far from automatic and “depends on the facts and circumstances of a particular case,” with funds provided when counsel makes a showing of necessity of the specific subjects to be explored and of their likely materiality.86
Finally, claims based on a duty to investigate must be considered in light of the strength of the government’s case. “When, . . . the prosecution has an overwhelming case based on documents and the testimony of disinterested witnesses, there is not too much the best defense attorney can do.”87 It is all well and good for a millionaire to retain counsel with the instruction to “leave not the smallest stone unturned.” But it goes too far to insist that such a course is a general constitutional mandate.
E. Appellant’s Claims
We turn from general questions of principle and approach to the matter of application to the case at hand. As focused in the remand proceedings, appellant makes some seven allegations of defective performance by his counsel.88 Following three days of *211hearings, Judge Waddy found that appellant had not been denied the effective assistance of counsel. We affirm. While we do not commend counsel’s performance, we have no serious misgivings that would lead us to reverse in the interest of justice.
1. Failure To Interview Potential Witnesses
We turn first to the claim that defense counsel failed to interview potential witnesses prior to trial. This is the claim that is most vigorously pressed on appeal, and by its nature requires somewhat detailed development.
Admittedly, defense counsel did not attempt prior to trial to interview the three prosecution witnesses — complainant Crump, and Officers Box and Ehler. However, at appellant’s preliminary hearing counsel did hear Officer Ehler testify that he and Officer Box were together when they witnessed the crime, and that Box pursued appellant to the hotel where he was apprehended. Ehler further testified that within minutes after the assault, Crump had identified appellant in the hotel lobby — a point appellant has never contested. Defense counsel was aware, therefore, of the main points of the likely testimony of the witnesses at trial.
Appellant attacks defense counsel’s failure to interview the desk clerk at the D.C. Annex Hotel, and his failure to make an effort to locate and interview potential eyewitnesses that might have been in the hotel at the time appellant entered and was apprehended. These are abstractions without context. Appellant himself testified at trial that he had just entered the lobby when he was arrested. Counsel was aware that there would be, as indeed there was, testimony of the police officer that he had not lost sight of appellant from the time of the robbery to the time of his apprehension. Appellant makes no claim that he advised counsel of any occurrence that would generate a significant issue as to his entry into the hotel.
If given an unrestricted budget and freed of any constraints as to probable materiality or accountability, a lawyer might have cheerfully logged in many hours looking for the legal equivalent of a needle in a haystack. As already noted, a millionaire might have retained counsel to leave not a single stone unturned. However, a defendant is not entitled to perfection but to basic fairness.89 In the real world, expenditure of time and effort is dependent on a reasonable indication of materiality. In the circumstances of this case, appellant has singularly failed to make a meaningful demonstration that counsel’s omission probably affected the outcome of the trial. It is argued that potential witnesses might have testified to appellant’s demeanor as he entered the lobby. This abstract possibility is not only speculative but remote in the extreme. It cannot fairly be said to undercut materially the positive police testimony.
Appellant goes on to challenge counsel’s failure to seek out and interview potential witnesses in the Golden Gate Club. It would be extravagant to require counsel to seek out the anonymous patrons of a bar in order to testify that two persons were having a drink — a point that is, incidentally, undisputed as far as appellant and Crump are concerned. Appellant makes no offer as to what more could have been learned.
We turn next to the failure of defense counsel to interview appellant’s co-defendants, Eley and Taylor, prior to trial, and his belated interview of Eley shortly before Eley testified on the second day of trial.
*212The record reveals that appellant consistently maintained to his attorney that his defense was alibi90 — that he had not been present at the scene of the crime, but rather had returned directly to the hotel from the bar where he had had a drink with Crump. This was the essence of appellant’s eventual testimony at trial.
We may assume for present purposes that appellant’s lawyer should have made some timely effort prior to trial to learn of the accounts of the co-defendants, beginning with consultation with their counsel. However, counsel subsequently did interview Eley and called him to the stand. At this time, be it noted, appellant had recently written to his counsel and raised a possible self-defense claim, altering his previous account (that he had left Crump in the bar) to claim that outside the bar Crump had assaulted him, and that Eley and Taylor would testify that they had come to his aid in fighting off Crump.
At the insistence of appellant, Eley was subpoenaed to appear at trial.91 Eley, who was in jail, was brought to the courthouse in the same bus as Decoster and placed in the cellblock behind the courtroom with De-coster. At the remand hearing, defense trial counsel testified that he had interviewed Eley, and that Eley had told him Decoster was not present at the scene of the crime. This narrative was consistent with Decoster’s trial testimony, and defense counsel called Eley as a witness. On the stand, however, Eley gave a different account, testifying that he had seen Crump and Decoster fighting. At the remand hearing Decoster and Eley both admitted that counsel had visited the cellblock prior to calling Eley as a witness. Decoster stated that he could not recall whether counsel had interviewed Eley, and Eley denied that he had spoken to counsel. The District Court found Eley’s testimony “incredible” and credited the testimony of defense counsel as to his interview of Eley.
As already indicated, we do not approve the belated effort to interview the co-defendants. However, appellant has not demonstrated a likelihood that counsel’s omission affected the outcome of trial. Counsel did interview Eley, and at a time when Eley could at least be asked to exculpate appellant without fear of self-injury, for by this time Eley’s own fate was set, following the plea of guilty he had made during the period appellant had eloped. Appellant was insisting that Eley be called, and Eley’s interview provided a glimmer of hope of corroborating appellant against a phalanx of credible prosecution witness. Neither appellant nor his counsel was in an enviable position at any time. Although appellant now claims ineffective assistance of counsel, what this conviction reflects is the clear-cut prosecution evidence, appellant’s weak contradiction, and Eley’s turnabout.
As a variant on the claim of failure to investigate, appellant points to counsel’s apparent confusion at the beginning of the trial. After defense counsel had announced “ready” for trial, the government demanded the names of alibi witnesses. Counsel stated that he might present alibi witnesses, but he sought the full twenty day period permitted by local rules to respond to such a demand. When this was denied, defense counsel announced he would proceed without alibi witnesses.
The effort of defense counsel to keep his options open was hardly unusual, but even if this indicated uncertainty as to theory of defense, some degree of confusion would not be unexpected in view of appellant’s shifting accounts and demands. In any event, there is no indication of likely effect on outcome. Counsel’s responses came be*213fore the jury was impanelled. At the trial, counsel did call Eley as a witness he understood would support defendant’s alibi defense.
2. Other Claims of Ineffective Assistance
As to appellant’s other claims, the District Court’s findings, while framed in response to the Decoster I mandate, are generally in accord with the principles we have developed in this opinion.
a. The Bond Review Motion. Appellant was arrested on May 29, 1970. A judge of the District of Columbia Court of General Sessions set bond at $5,000. Appellant could not meet that figure and remained incarcerated. On October 12, 1970, the Black Man’s Development Center accepted third-party custody. On November 9, 1970, counsel filed a motion for bond review in the District Court. The issue was disputed at the remand hearing, but Judge Waddy apparently found that this motion had included the condition of third-party custody. However, it was not until December 8,1970, that defense counsel filed in the correct court (General Sessions) a motion for bond review explicitly reflecting the third-party custody condition.92 Appellant was eventually released on January 14, 1971.
The District Court found that counsel’s deficiencies did not affect the result of the trial in the slightest degree, did not “limit defendant’s ability to contact witnesses and inform his counsel of them if there were any; nor did it frustrate his defense, nor affect his guilt or innocence.” While lack of diligence in obtaining a criminal defendant’s pretrial release cannot be condoned, reversal of a conviction is not the appropriate remedy where the trial itself was not affected by the default.93
b. Failure To Obtain Transcript. Defense counsel did not obtain a copy of the transcript of the preliminary hearing. At the remand hearing, he testified that it was his normal practice to read the prosecutor’s copy. This practice, and their cooperation, was substantiated by the prosecutors’ testimony. We cannot say that counsel’s practice was impermissible. He had not only access to a transcript, but his own memory of the preliminary hearing that he had attended. Appellant argues that Officer Ehler’s testimony at trial differed from his testimony at the preliminary hearing on the exact role of each of the defendants in the robbery. These variations were not “substantial” — Judge Waddy’s term — insofar as the alibi defense was concerned. There is no showing of likely impact on the trial result.
c. Offer To Waive Jury Trial. Appellant’s effort to condemn defense counsel for the offer to waive jury trial is frivolous. Appellant was in fact tried by a jury. Moreover, as the District Court found, appellant himself demanded that his attorney offer to waive jury trial, and appellant persisted in this demand even after the court advised him of his constitutional rights and explained that the court had heard part of the evidence against him.
We are moved to add a word. The trial judge, the late Honorable Joseph Waddy, had a distinguished record at the bar as a compassionate and effective defense counsel, and on the bench as a patient, fair and conscientious judge. Appellant’s wish for a trial by him was neither unusual nor such as to require conscientious counsel to set himself in opposition to his client.
d. Waiver of Opening Statement and Failure To See Sentence Properly Executed. As the District Court found, there is no merit in the claims of ineffectiveness on *214the ground of waiver of opening statement and failure to see that appellant’s sentence was properly executed. Waiver of an opening statement is a tactical decision. There was no effort to demonstrate that the waiver had, or was likely to have had, a substantial effect on the outcome. As to the sentencing issue, defense trial counsel had withdrawn from the case before the issue had arisen, an appeal had been taken, and appellate counsel had been appointed. And of course an omission would justify at most a reconsideration of sentence, not a reversal of the conviction.94
F. Conclusion
The several claims, both seriatim and in combination, do not raise in our minds serious misgivings as to whether justice was done. We certainly do not commend counsel’s performance as ideal. Yet some of the complaints border on the frivolous. And ultimately there was a total failure of appellant to show that it was likely that counsel’s deficiencies had any effect on the outcome of this trial. As the District Court found:
While it may be that defense counsel herein was lax in his duty to conduct as thorough a factual investigation as possible, we find that counsel did raise the only defense available to him, which defense was putting the government to its proof.
In the absence of a governmental impediment to effective assistance of counsel, the court cannot lightly vacate a conviction on the basis of its own appraisal of the performance of defense counsel. The door is open, but only for cases of grievous deficiency and where the court has serious misgivings that justice has not been done. Our adversary system will be tortured out of shape if defense counsel must contemplate from the beginning that the judge will subsequently retrace his conversations with his client, and his evolving perceptions of the problems and possibilities presented by the assignment.
We support efforts to upgrade performance of defense trial counsel. We commend the programs of the last decade in clinical education for law students. We approve the American Bar Association’s efforts to clarify the defense and prosecution functions. More should be done. But more is not better if it undercuts the adversary system.
So far as the present case is concerned, ultimately dispositive of the appeal are the strength of the government’s case and failure of appellant to demonstrate a likelihood of effect on the outcome.
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As Jan Deutsch has recently noted, it is often in the nature of a dissent to present a political statement.95
Judge Bazelon’s characteristic eloquence destines his remarks to stand as an oft-quoted expression of aspirations for the legal system. In our view, that eloquence is not matched by tenable standards.
1. Starting from the ABA Standards Relating to the Defense Function,96 Judge Bazelon propounds a list of “duties owed by counsel to client” as representing the “minimum requirements of competent performance.” 97 The ABA issued its standards — dropping the term “minimum” — as a “blend of description of function, functional guidelines, ethical guidelines and recommended techniques.” 98 They were not designed as a hard and fast checklist of duties for defense counsel. In application there must be room for judgment, and for consideration of context.
Our analytic structure permits reversal in the interest of justice, but without inappropriate rigidity. The claimed deficiency *215must fall measurably below accepted standards. To be “below average” is not enough, for that is self-evidently the case half the time. The standard of shortfall is necessarily subjective, but it cannot be established merely by showing that counsel’s acts or omissions deviated from a checklist of standards.
What is all-important is significance in terms of context. This has been understood by virtually every court and judge that has spoken to the issue.99 We resolve the problem of taking context into account without imposing an undue burden on the defense. We do not require that defendant bear the burden of proving actual prejudice.100 What defendant must demonstrate is a likelihood of effect on the outcome. In that event, the government would have the burden of showing that there was in fact no prejudice in the particular case.
Judge Bazelon qualifies his formulation by asserting that his “checklist” does not compel automatic reversal, as it applies only if the violation is “substantial.” In DeCoster I, the meaning of “substantial” was left ambiguous, but a fair reading of the opinion suggests that it referred to the magnitude of the violation, either in terms of egregiousness or frequency, rather than to the violation’s impact or likely impact. In Judge Bazelon’s panel opinion in Decoster II- — -later vacated by the en banc order— the defendant’s burden was expanded to include a reference to impact. Judge Bazelon stated that Pinkney101 made clear that “for a violation to be substantial,- it must [have been] ‘consequential,’ that is, it in some way must have impaired the defense.” 102 Judge Bazelon’s dissent now appears to recede from the concept of burden on defendant to show impairment of the defense. While Judge Bazelon’s dissent acknowledges that “the ‘reasonably competent’ attorney must tailor his actions to fit the unique circumstances presented by a given case,”103 defendant’s nominal burden to show “substantiality” is structured so that, realistically, deviation from the checklist makes out a prima facie case, leaving the actual burden on the government (or defense trial counsel) to show that the departure was “excusable” or “justifiable.” Judge Bazelon’s difficulties with the substantiality concept suggest that it is unsound to make this the analytical cutting edge.
Judge Bazelon recognizes that the government can always defend by showing beyond a reasonable doubt that the violation was harmless — a rule prescribed by Chapman104 even for established constitutional violations. The realistic thrust of Judge Bazelon’s approach, however, is a rule structured toward a conclusion of prejudice from any deviation from the checklist of standards concerning preparation, what*216ever the likely or actual consequence. Omissions of investigation lead to new trials on the rationale that one can never be certain what might have happened had counsel performed better. A new trial is needed if exculpatory information might have been turned up (obviously), and also if the fruits of the investigation would have proved neutral or even inculpatory, for defense counsel could have been in a stronger position to lead his client to plead guilty. This kind of speculation renders no error harmless.
3. The crucial difference between our views of this case is not the shortfall of counsel so much as the analysis of effect on outcome. The critical point is the duty to investigate. Since the defendant’s account to his counsel of his entry into the hotel was so close to that of the police, the speculation that something might have been turned up by interviewing the hotel clerk is tantamount to an obligation to turn over each and every stone. This is even clearer for the extreme suggestion that defense counsel should have made inquiries, of persons unknown, at the bar where defendant and the victim were drinking.
There is more force to the objection that counsel rested with the preliminary hearing, and did not interview the policemen or the victim. However, a notably conscientious trial judge has found that there was no effect on outcome. Finally, co-defendant Eley was interviewed prior to trial. Eley’s damaging testimony on the witness stand was a turnabout, defense trial counsel submitted. When one also factors in the reality of the turnabout in defendant’s own statements to counsel, the notion that counsel’s shortfall contributed to the outcome is comminuted.
4. Judge Bazelon’s premise is that the Sixth Amendment dictates an inevitable progression toward categorical rules governing the assistance of counsel. The Supreme Court decisions, however, establish a variable and judgmental approach depending on the nature of the claimed deprivation of the right. In particular, Chambers v. Maroney105 clearly, if briefly, rejected the proposition that per se rules were appropriate, and implicitly accepted an outcome requirement. In the cases where the Court rejected any kind of prejudice requirement,106 the violation could easily be remedied by a categorical prohibition of a state-erected impediment to effective assistance. Those cases did not involve intrusion into the more sensitive area of pretrial preparation. We are constrained by Chambers and the signals in Agurs.107 In the law, “leadership requires lieutenants as well as captains.” 108 On an intermediate court we have some latitude to initiate approaches and to interpret Supreme Court decisions, but we must abide by their constraints.
5. Judge Bazelon is animated by a view of the adversary system as so impaired in practice as to warrant a thorough reordering, with extensive supervision by the trial judge through a pretrial “checklist” to ensure that counsel has met his duties of preparation, and oversight of the conduct of the trial. The manifest consequence would be inevitable and increasing intrusion into the development and presentation of the defense case by the trial judge, and (out of self-protection) by the prosecution.
The adversary system is neither sacrosanct nor impervious to change. But Judge Bazelon has not pointed to any system — let alone the inquisitorial system of the Continent — that guarantees better protection against injustice. We do not think he has made a case for the drastic overhaul of a system that historically has heightened pro*217tection of the accused. Perhaps the spectre of disruption will lead to increased appropriations to the criminal justice system, but such a tactical approach to the judicial function would be perilous.
6. Starting with Bruce109 in 1967, this circuit has evolved and refined Sixth Amendment protections against the ineffectiveness of counsel. Judge Bazelon fashioned an important advance in the ruling of DeCoster 1110 that established a procedure by which the trial court could take a fresh look within the structure of a direct appeal.111 This opinion modifies the Bruce requirement of a showing that a substantial defense has in fact been “blotted out” by requiring only a showing of a likelihood of effect on outcome. We cannot accept the more radical departure outlined in the Decoster II panel opinion and reiterated in the dissent.
5(5 * * * * 5*
The concurring opinion subsequently received from Judge Robinson is subject to the comments addressed to Judge Bazelon’s dissenting opinion insofar as those two opinions are congruent. In key aspects the concurring opinion differs from Judge Ba-zelon’s dissent, notably Judge Robinson’s appraisal112 of the limited utility of the checklist approach of DeCoster I, and basically his assessment of the particular case before us.
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The judges of this court are emphatically not indifferent to the plight of the poor in the criminal justice system. Certainly there is need for the allocation of additional resources. Certainly there is need to cull out incompetent counsel or to call them to account. Responses are primarily required from the bodies that can supply resources— the legislature and the bar. Judge Bazel-on’s bold but single-valued approach would tolerate disruption of the administration of justice and a reordering of the adversary system, with little guarantee of improved performance and impassivity as to the uncharted and likely noxious consequences.
Our approach toward the minimum legal obligations of our democratic society to ward off injustice may be more earthbound, but in our view it is more salutary.
Affirmed.
MacKINNON, Circuit Judge, with whom TAMM and ROBB, Circuit Judges, join, concurring.
This case has a tortuous history. It started with a sua sponte remand from this Court to the District Court for determination of issues that were not raised on appeal and which were not apparent in the record. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973) [DeCoster I]. I dissented in part. On remand, the trial judge (Waddy, J.) held an extensive hearing. His findings and conclusions did not support the preconceived fears of the majority of the appellate panel that counsel had been ineffective. However, on appeal in a far reaching opinion that attempted to write new law the majority of the panel set aside Judge Waddy’s findings and conclusions and reversed the conviction. United States v. Decoster, 199 U.S.App.D.C. -, 624 F.2d 196 (1976), [Decoster II]. The factual and legal deficiencies of the reversal of Decoster’s conviction by the panel were set forth at length in my dissent, 199 U.S. App.D.C. -, 624 F.2d 196, and that opinion covers a number of points that need not be covered here. The full court subsequently ordered en banc rehearing of the case. Now the court en banc affirms the conviction.
In Judge Leventhal’s plurality opinion, which was prepared after my earlier origi*218nal draft, many issues raised by the earlier panel majority are now subordinated to a discussion of more general law, and the specific factual issues of this case, which support the finding of guilt and the effectiveness of counsel, receive less attention. I reach the same result as the opinions by Judges Leventhal and Robinson, but on several issues those opinions do not make as complete and conclusive a case against the theories and analysis of the dissent as the record supports, and, in some respects, I differ from their analysis. However, since such theories are now relegated to a dissent from an en banc opinion the need for an opinion to completely refute them is diminished. Thus, to avoid repetition, I have withdrawn a large portion of my original opinion and instead will make a few observations with respect to the dissent beyond those of Judge Leventhal’s opinion, and discuss the issues surrounding the burden of proof which I believe should be set forth with greater clarity and precision. I stand by my earlier statements which are accurately quoted in the dissent. I vote to affirm the conviction.
I. THE BURDEN OF PROOF IN SIXTH AMENDMENT RIGHT TO COUNSEL CASES
The Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall have the Assistance of Counsel for his defence.” 1 In addition to the right to not be actually denied the “Assistance of Counsel” it has long been recognized that a defendant has a right to the effective assistance of counsel, for courts have understood that a defense may be so ineffective as to constitute a constructive denial of the assistance of counsel. Obviously, the two types of cases are composed of radically different essential elements. This case turns on the nature of the showing that must be made in order to reverse a conviction because of alleged ineffective representation. I believe that a defendant who alleges that his counsel was ineffective must show that substantial prejudice to his defense resulted from the alleged violation of duty owed him by counsel.2 I base my conclusion on four considerations: (1) precedent in this Circuit; (2) the Supreme Court’s approach in the analogous Fifth Amendment area; (3) traditional common law principles governing the burden of proof; and (4) respect for the adversary system.
A. Precedent
1. Before DeCoster I
The early cases in this Circuit held that the Sixth Amendment only established a *219defendant’s right to appointment of competent counsel. Subsequent negligence of that counsel did not implicate the Sixth Amendment. However, the Fifth Amendment’s due process clause guarantees the accused a fair trial, and the early cases recognized that the performance of counsel might have been so inept that the defendant did not receive a fair trial. Thus, initially, the adequacy of counsel was considered to involve a Fifth Amendment question.3
The Sixth Amendment, however, guarantees more than the appointment of competent counsel. By its terms, one has a right to “Assistance of Counsel in his defence.” Assistance begins with the appointment of counsel, it does not end there. In some cases the performance of counsel may be so inadequate that, in effect, no assistance of counsel is provided. Clearly, in such cases, the defendant’s Sixth Amendment right to “have Assistance of Counsel” is denied. Thus, in Scott v. United States, 138 U.S. App.D.C. 339, 340, 427 F.2d 609, 610 (1970) we recognized that the right to adequate assistance of counsel is derived from the Sixth Amendment as well as from the Fifth.4
In addition to applying the Sixth Amendment to the adequate assistance of counsel area, the pre-DeCoster I cases established two principles. First, they delineated a constitutional standard by which the adequacy of attorney representation can be tested. Second, they clearly allocated the burden of proof in adequacy of representation cases.
(a) The Standard. In our earliest decisions on the subject, we stated that a defendant’s constitutional right to adequate representation is violated when counsel is shown to be so inept that the trial is a “farce and a mockery of justice.”5 Later cases stated that the “farce and mockery of justice” test was meant as an example of a constitutional violation; it was not intended to restrict the Sixth Amendment’s application to only those cases in which the trial could be called a “farce.” See Mitchell v. United States, 104 U.S.App.D.C. 57, 63, 259 F.2d 787, 793 (1958).6
*220Once the ambiguity surrounding the “farce and mockery of justice” test was cleared up, this court consistently held that a defendant’s right to assistance of counsel is violated when his attorney’s ineptness substantially prejudiced defendant’s ability to receive a fair trial. In United States v. Hammonds, 138 U.S.App.D.C. 166, 169, 425 F.2d 597, 600 (1970) we stated that “ ‘[t]he question * * * is whether [counsel’s] representation was so ineffective that Appellant was denied a fair trial’ ” Similarly, in Scott v. United States, 138 U.S.App.D.C. 339, 340, 427 F.2d 609, 610 (1970) the court held that the “appropriate standard for ineffective assistance of counsel ... is whether gross incompetence blotted out the essence of a substantial defense.”
(b) Burden oí Proof. The pre-DeCoster I cases also established that the burden rests on the defendant to show that he did not receive a fair trial. In Bruce v. United States, 126 U.S.App.D.C. 336, 339-40, 379 F.2d 113, 116-17, 121 (1967) (emphasis added) Judge Leventhal wrote for the Court:
In earlier cases it was said that a claim based on counsel’s incompetence cannot prevail unless the trial has been rendered a mockery and a farce. These words are not to be taken literally, but rather as a vivid description of the principle that the accused has a heavy burden in showing requisite unfairness. Although the cases are rare and extraordinary, it appears that an accused may obtain relief under 28 U.S.C. § 2255 if he shows that there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense either in the District Court or on appeal.
A claim of ineffective assistance of counsel might be made out if the wishes of the appellant were in fact diverted by clearly erroneous legal advice and he was substantially prejudiced thereby.
*221The defendant in Bruce was seeking habeas corpus release. Since his constitutional claim was made as a collateral attack on his conviction, Judge Leventhal acknowledged that a “more powerful” factual showing was necessary than would have been required were defendant seeking a new trial on direct appeal.7 But the fact that Bruce was a collateral attack case does not denigrate the relevance of its holding that the defendant bears the burden of showing prejudice.8
Judge Leventhal in a concurring opinion filed on petition for rehearing in Matthews v. United States, 145 U.S.App.D.C. 323, 449 F.2d 985 (1971) reiterated that the defendant must show prejudice. He wrote:
I have taken the trouble of outlining the prejudice I think occurred, because I am by no means of the view, as suggested in the Petition for Rehearing, that in these cases no possibility of prejudice need be shown. Where defendant has not been provided with counsel, that fact in and of itself establishes the need for reversal without regard to any other possibility of prejudice. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942), but when the claim is posed in terms of ineffective assistance of counsel, then I think the ineffectiveness has to be measured in terms of whether the attorney has in effect blotted out the substance of a defense, Bruce v. United States, 126 U.S.App.D.C. 336, 340, 379 F.2d 113, 117 (1967).
145 U.S.App.D.C. at 332, 449 F.2d at 994. This excerpt expresses the basic difference between those cases in which the defendant was actually denied counsel and those in which it is asserted that his counsel was ineffective: in the ineffectiveness types of claims the burden of proving prejudice rests on the defendant.
Judge Fahy’s majority opinion in Matthews, joined by Judge Wright, rested explicitly on United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970). Hammonds, which involved a direct appeal, reaffirmed the earlier case law in this circuit that required the defendant to show prejudice. 138 U.S.App.D.C. at 169, 425 F.2d at 600. Hammonds was decided in favor of the defendant. But this was because “[ajppellant ha[d] sustained his burden of establishing his claim that he was deprived of his constitutional right to effective assistance of counsel.” 138 U.S.App. D.C. at 173, 425 F.2d at 604 (emphasis added).9
*222Hammonds relied heavily on then Judge (now Chief Justice) Burger’s opinion for the court in Harried v. United States, 128 U.S. App.D.C. 330, 389 F.2d 281 (1967). Though Harried involved a direct appeal, the court relied on Bruce, supra, and Mitchell, supra, and explicitly stated that the
burden on the Appellant to establish his claim of ineffective assistance of counsel is heavy. The question ... is whether his representation was so ineffective that appellant was denied a fair trial.
128 U.S.App.D.C. at 333-34, 389 F.2d at 284-85 (citations omitted) (emphasis added).
Finally, in Scott v. United States, 138 U.S.App.D.C. 339, 340, 427 F.2d 609, 610 (1970) the court held that the District of Columbia Court of Appeals properly applied the “standard in Bruce ” in a direct appeal case. Scott is significant both because it is a direct appeal case and because it was the first case to acknowledge that inadequate assistance of counsel claims have Sixth Amendment underpinnings. By relying on Bruce, the Scott court held that in the Sixth Amendment context, as well as under the Fifth Amendment, the burden is on the defendant to show prejudice from the acts or omissions of his counsel.
To recapitulate, both the Fifth and the Sixth Amendments are implicated in cases involving alleged ineffectiveness of counsel. The Fifth Amendment is violated if counsel’s performance is so inadequate that defendant is denied a fair trial. The Sixth Amendment is violated when the performance of counsel is so inadequate that, in effect, the required “Assistance of Counsel” in his behalf has not been afforded. Under either Amendment, the pre-DeCoster I cases indicate that the defendant has the burden of showing that he was prejudiced by his counsel’s inadequacy. The DeCoster I opinion and subsequent cases in this Circuit do not abandon — nor do they provide a basis for abandoning — the decisions in this Circuit as to the burden of proof.10
2. DeCoster I
DeCoster I stated that under the Sixth Amendment an attorney has a duty to his client to be a diligent and conscientious advocate and to provide reasonably competent assistance. This standard of conduct is almost self evident. The court gave this general duty more specific content by listing some of counsel’s responsibilities toward his client.11
*223No itemization of general duties, however, can serve as a check-off list of absolute, hard and fast rules such that the slightest deviation will constitute a constitutional error.12 It would be wrong to construe DeCoster I as establishing such rigid guidelines. The duties listed in DeCoster I were phrased generally,13 and most of them require the exercise of considerable judgment, discretion and adjustment to the widely varying facts of criminal cases. The borderline between the adequate assistance (required by the Constitution) and inadequate assistance may vary greatly with the factual circumstances of each case.14 In recognition of this, the American Bar Association Standards for the Defense Function, which the DeCoster I guidelines incorporate by reference, explicitly provide that they are not intended “as criteria for judicial evaluation of the effectiveness of counsel to determine the validity of a conviction.”15 *224Thus, while counsel has certain general duties to his client, the exact nature of these duties varies with the case, and counsel’s competent judgment exercised in the best interests of his client should be afforded great weight, as should that of the trial judge with his first hand knowledge of the proceedings. In short, whether counsel has breached his duty depends upon the facts in each case.
Once a defendant establishes a breach of duty by his counsel, DeCoster I, supra, still requires that the defendant demonstrate that this breach constitutes a “substantial violation.”
If a defendant shows a substantial violation of any of these requirements he has been denied effective representation unless the government, “on which is cast the burden of proof once a violation of these *225precepts is shown, can establish lack of prejudice thereby.” Coles v. Peyton, 389 F.2d 224, 226 (4th Cir. 1968).
159 U.S.App.D.C. at 333, 487 F.2d at 1204 (emphasis added). The deficiencies in this formulation are set out in the plurality opinion. In addition, what was meant by “substantial violation” is not clearly articulated in DeCoster I. United States v. Pink-ney, 177 U.S.App.D.C. 423, 543 F.2d 908 (1976), decided subsequently, indicates that “substantial violation” contemplates a showing that counsel’s duty to the defendant was breached substantially and that this prejudiced the defendant.
In Pinkney, appellant alleged inadequate assistance of counsel. The court rejected Pinkney’s claim, holding that a DeCoster I motion is one for a new trial in which the defendant bears the same obligation to show prejudice to his cause as in any other new trial motion:
The vehicle [for raising an inadequate assistance of counsel claim], we said [in DeCoster I], was a motion for a new trial, obviously one presenting new evidence in the sense of evidence outside the record — in other words, a new-trial motion based on newly discovered evidence. An essential characteristic of such a motion is a disclosure of evidence portraying the movant’s claim materially and resolutely, and evincing a capability of mounting a serious challenge. By the same token, a motion charging ineffective assistance of counsel must set forth evidence upon which the elements of a constitutionally deficient performance might properly be found.
177 U.S.App.D.C. at 431, 543 F.2d at 916 [footnote omitted] (emphasis added). The court then cited several cases, each of which unambiguously states that a defendant must show prejudice to sustain his new trial motion.16 According to Pinkney, therefore, *226prejudice to the accused is a necessary element of a claim of a “constitutionally deficient performance” by counsel.17
In summary, under DeCoster I and our prior decisions, the defendant lacks a substantial claim unless he makes out a prima facie case showing (1) that counsel’s constitutional duty toward him was breached and (2) that he suffered unfair prejudice as a result of that breach. The burden of proof to make this showing falls squarely on the defendant.18
B. Fifth Amendment Analysis
A defendant’s right to adequate assistance of counsel is derived from both the Fifth and the Sixth Amendments. Therefore, the Supreme Court’s treatment of cases involving purported violations of the Fifth Amendment is relevant. In such cases the Court has required that defendants prove prejudice.19
*227In Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975), for example, petitioner claimed that his rights were violated when members of the jury heard news accounts about his case. The Supreme Court found no violation of his constitutional right:
Petitioner has failed to show that the setting of the trial was inherently prejudicial or that the jury-selection process of which he complains permits an inference of actual prejudice.
421 U.S. at 803, 95 S.Ct. at 2038 (emphasis added). The court thus refers to the two types of prejudice that must be shown — inherent and actual prejudice. In Murphy, the Court refused to presume that the trial was unfair. The defendant was required to bear the initial burden of showing prejudice; only after such proof would the government be required to show the lack of prejudice or harmless error.
Similarly, in United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), which emanated from this court, defendant claimed that her rights were violated by prosecutor’s failure to inform her of her victim’s criminal record. The Supreme Court rejected this argument even though she had not been so informed:
[T]he prosecutor will not have violated his constitutional duty of disclosure unless his omission is of sufficient significance to result in the denial of the defendant’s right to a fair trial. . If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial.
427 U.S. at 108, 112-13, 96 S.Ct. at 2400, 2402 (emphasis added). Since the victim’s criminal activities did not cast doubt on the verdict, the defendant’s conviction was upheld — obviously because of the defendant’s failure to prove prejudice.
While Agurs does not explicitly deal with the burden of proof issue, it strongly indicates that the Supreme Court would be reluctant to presume the existence of a constitutional violation from the mere failure to comply with a single guideline where “there is no reasonable doubt about guilt.” The Agurs court indicated that it was concerned with the “justice of the finding of guilt.” 427 U.S. at 112, 96 S.Ct. at 2401.20 If the logic of the dissent here had been followed in Agurs, once it was shown that the government had not disclosed the victim’s criminal record, the government would have been required to bear the burden of proving lack of prejudice to the defendant. The Supreme Court refused to impose such a completely impractical burden.
There will be a few cases in which, because of the inadequacy of counsel, exculpatory evidence is lost. But in light of Fifth Amendment cases like Murphy and Agurs, courts should be wary of declaring certain acts or omissions of counsel, without proof of prejudice, to be per se constitutional violations that in the absence of refutation are sufficient to negate a criminal conviction. Where the Sixth Amendment is relied upon, the defendant must always show by direct or indirect evidence that the complained of acts or omissions by counsel were the legal equivalent of the denial of his right “to have the Assistance of Counsel for his defence.” That is what the Sixth Amendment is all about.
C. Common Law Principles
The dissent argues that once a violation of any duty is demonstrated, even though no prejudice is shown, the government has the burden of showing that the defendant was not prejudiced. This shifting of the burden of proof from the proponent to the Government is inconsistent with common law principles.21 In Nader v. Allegheny Airlines, Inc., 167 U.S.App.D.C. 350, 361, 512 F.2d 527, 538 (1975), rev’d on other *228grounds, 426 U.S. 290, 96 S.Ct. 1978, 48 L.Ed.2d 643 (1976) we delineated two criteria for allocating the burden of persuasion.
[ 1 ] Although a plaintiff generally carries the burden of persuasion on each element of his cause of action, special circumstances may lead a court to shift the burden of persuasion to the defendant on some part of the claim. [2] One special circumstance commonly accepted is that the burden will be shifted where the material necessary to prove or disprove an element “lies particularly within the knowledge” of the defendant.
167 U.S.App.D.C. at 361, 512 F.2d at 538. Thus, normally the burden should lie on the person pressing the claim;22 an exception may be made when the other party has sole access to the facts.
In the instant case, Decoster has the primary access to the relevant facts; the government is highly restricted in its ability to discover them because of the attorney-client privilege and the Fifth Amendment privilege against self-incrimination. Moreover, normally it is the defendant who raises the inadequate assistance of counsel claim (here it was raised by the appellate court sua sponte). Therefore, the twin policies of placing the burden of proof on the person pressing the claim and placing the burden on the person with access to the facts are both satisfied by holding that De-eoster bears the burden of proving a prima facie. Sixth Amendment violation which includes a showing of prejudice.
D. Attorney-Client Relationship and the Adversary System
The formula suggested by the dissent for determining when a defendant has not received effective assistance of counsel — presuming prejudice from scanty evidence and then shifting the normal burden of proof to the Government to disprove the existence of prejudice — would have very detrimental consequences to the adversary system. The Government would be forced to attempt to produce proof entirely from the acts and privileged discussions of the accused and his counsel and to make its showing long after the trial, when memories have faded — as they have here.23 In addition to creating an almost impenetrable obstacle to sustaining convictions in many cases, such requirement would lead to highly objectional intrusions into the adversary system in most cases. Shifting the burden to the Government would force it to get very involved in a relationship that it should stay out of.
If the Government were required to prove that its adversary defense counsel was adequate, it would be strongly motivated and well advised during a criminal trial, in order to protect the prospect of guilty verdicts, to oversee the major decisions and activities of defense counsel and the accused that affect the trial. Performing this function would, as a practical matter, require the prosecution to probe what has heretofore been a sacrosanct area — the highly confidential relationship between a criminal defendant and his lawyer. Some *229tension in this area unavoidably exists when the defendant makes a prima facie showing of prejudicial conduct constituting a constitutional violation, and the Government seeks to rebut that showing. Presuming prejudice from certain minimal facts that do not constitute a full prima facie case and then switching the burden of proof to the Government (which has limited access to the defendant’s information) to prove that no prejudice resulted would heighten that tension inexorably.
To the extent that the prosecutor during trial might implore the trial judge to correct or direct the decisions or acts of defense counsel, or the accused, to prevent presumptive prejudice which would redound against the Government (though it in no way participated in such conduct or decisions), the result could well be judicial supervision of many of the tactical trial decisions of defense counsel. The hazards of creating such a rule were described by Judge Prettyman in Mitchell v. United States, supra:
[T]he constitutional right of an accused to the assistance of counsel might well be destroyed if counsel’s selections upon tactical problems were supervised by a judge. The accused is entitled to the trial judgment of his counsel, not the tactical opinions of the judge. Surely a judge should not share the confidences shared by client and counsel. An accused bound to tactical decisions approved by a judge would not get the due process of law we have heretofore known. And how absurd it would be for a trial judge to opine that such-and-such a course was ineffective or incompetent because it persuaded him (the judge) to decide thus- and-so adversely to the accused.
104 U.S.App.D.C. at 63, 259 F.2d at 793. These difficulties can be avoided by leaving the burden of proof in most cases on the defendant to show substantial unfair prejudice from the acts or omissions of counsel. Such showing would constitute a prima fa-cie case of a Sixth Amendment violation, and the burden of proceeding would then be cast on the Government to disprove the prima facie case and failing that the accused would prevail.24
E. Sixth Amendment Framework
To summarize, Sixth Amendment right to “assistance of counsel” cases can be divided into two categories: (1) those in which the accused is actually denied the assistance of *230counsel, and (2) those in which his constitutional right to the assistance of counsel is denied by virtue of the ineffective representation that counsel rendered. The classic case involving the actual denial of counsel is Gideon v. Wainwright:25 no defense coun*231sel was appointed. Other examples in which the assistance of counsel was actually denied include Geders v. United States26 and Herring v. New York.27 In both of those cases the defendant did not have the assistance of a lawyer at a critical stage in his trial.
The second category, which may be termed a constructive denial of counsel, includes cases in which defense counsel was present and able to participate in every aspect of the trial, but for one reason or another the defense presented is viewed as the equivalent of a denial of the constitutional right to the “assistance of counsel.” Cases in which the defense lawyer was ineffective fall into this second category: though the defendant was actually represented, his lawyer’s performance was so ineffective that it was tantamount to a denial of his constitutional right.
If a defendant is denied the actual assistance of counsel, his constitutional right is violated without any further showing. A showing of such denial is all the prejudice that the Constitution requires, so when he is denied the “presence and assistance” of counsel at a critical phase of his trial a defendant need not prove further exactly how he was harmed.28 But cases where *232counsel was present and assisting, and which involve allegations that a defendant’s constitutional right to assistance of counsel was constructively denied as a result of the defense lawyer’s ineffectiveness, are different. In these cases the question is: was the attorney’s performance so deficient as to constitute the equivalent of a denial of the accused’s constitutional right? And in case after case involving an alleged constructive denial of the assistance of counsel it has been held that a lawyer’s ineffectiveness is not tantamount to denial of the constitutional right to the assistance of counsel unless the defendant can show that he was prejudiced.29 Therefore in order to establish that his lawyer’s ineffectiveness amounted to a Sixth Amendment violation, a defendant must show substantial unfair prejudice to his defense resulting from a substantial violation of duty owed him by his counsel.
To illustrate: suppose defense counsel, as frequently happens in criminal cases, does not call any witnesses.30 Such an allegation would have no force unless it were shown that witnesses to beneficial material facts exist and the lawyer’s failure to produce their testimony worked some substantial unfair prejudice to defendant’s cause. If the defendant makes the requisite prima facie showing of a substantial violation of the constitutional duty owed him by counsel that resulted in substantial unfair prejudice to his defense, the burden of proceeding shifts to the Government.31 Then the Government has a right to show, for example, that the alleged witnesses did not exist or could not be located, or that counsel was given no indication that such witnesses did exist, or that the testimony of the witnesses was irrelevant or otherwise deficient.32 If *233despite the Government’s effort to rebut the evidence presented by the defendant, the defendant eventually carries his burden — he demonstrates that a substantial violation of a duty owed him by counsel resulted in substantial unfair prejudice to his defense — then a constitutional violation has occurred.33
Applying this test to the instant case, it is clear that Decoster’s Sixth Amendment right was not infringed. First, Decoster has great difficulty demonstrating that there was a substantial breach of duty by his lawyer. Judge Waddy’s findings to the contrary have not been shown to be clearly erroneous. I agree that counsel is under an obligation to investigate non-fabricated defenses, but the facts here overwhelmingly support Judge Waddy’s finding that the only possible defense for Decoster was to put the Government to its proof. From the entire record, it is my view that Decoster’s lawyer concluded that he was guilty after: (1) participating in the preliminary hearing; 34 (2) six interviews with appellant;35 (3) studying the government’s file, to which he had access;36 (4) reviewing the grand jury testimony;37 (5) reading the transcript of the preliminary hearing;38 and (6) receiving a letter from Decoster in which he admitted that he was fighting with the victim at the time of the robbery.39 In *234addition, counsel, who acted for all defendants at the preliminary hearing,40 knew that both men who were with Decoster at the time of the robbery had pleaded guilty to that charge on June 18, 1971. Under such circumstances, an extensive investigation was not warranted.
More important, there is not a shred of evidence in the record suggesting that De-coster was prejudiced in any way by the conduct of his counsel. We now know, on the basis of Decoster’s admission at sentencing on March 3, 1972, that he was guilty, and this is corroborated by a letter he wrote to the Judge which the court referred to at sentencing and which Decoster then acknowledged.41 Even without Decoster’s admissions, it would be hard to imagine a case with more certain proof of guilt and with less room for creditable contrary evidence. Two policemen actually observed Decoster committing the robbery in broad daylight; one of them chased him and without losing sight of him, arrested him. (The dissent shades the facts by stating that the police officers “found” Decoster. Dissent page - of 199 U.S.App.D.C., page 267 of 624 F.2d.) Decoster was identified on the spot by the victim and one of Decoster’s confederates contradicted Decoster’s alibi when he testified that Decoster was present at the scene of the robbery. With this factual background, it is not, and cannot be, contended that Decoster was innocent. Even the most extensive investigation could not have discovered exculpatory facts, for there were none to find. Since any failure on the part of defense counsel to investigate was not prejudicial to Decoster, Decoster’s Sixth Amendment right to have the assistance of counsel was not violated.
II. THE DISSENT’S POSITION ON THE BURDEN OF PROOF
Since Decoster has been wholly unable to show that he was prejudiced as a result of his lawyer’s alleged inadequacies, the dissent is forced to argue that the burden of proof is on the government to show that *235Decoster was not prejudiced.42 In addition to DeCoster 143 and the dissenting opinion in Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978) (en banc),44 which are obviously not controlling, my dissenting colleagues rely primarily on three cases: Geders v. United States,45 Holloway v. Arkansas46 and Chapman v. California47 They conclude, on the basis of these decisions, that “[rjecent Supreme Court decisions affirm that a distinct showing of prejudice is unnecessary to establish a Sixth Amendment violation.”48 That conclusion is unwarranted in the context of a claim based on ineffective assistance of counsel.
A. Geders v. United States
Geders is easily distinguished from this case. It was not based on ineffectiveness. In that case the defendant was not permitted to consult with his attorney during the overnight recess between his direct- and cross-examination. This prevented the accused from having the actual assistance of counsel during a critical stage of his trial. When a person is actually denied counsel at an important point in his trial, his constitutional right is violated without any further showing of prejudice. This case, which involves an alleged constructive denial of counsel because of the defense lawyer’s ineffectiveness, involves different considerations.49 Accordingly, Geders is not controlling here.
B. Holloway v. Arkansas
In Holloway, three defendants were charged in connection with a rape and robbery incident. The public defender who was appointed to represent all three defendants informed the court that his clients had conflicting interests, but the trial court insisted on joint representation. The Supreme Court reversed the defendants’ convictions, holding “that whenever a trial court improperly requires joint representation over timely objection reversal is automatic.” 50
The facts in Holloway have a superficial similarity to those involved here. In both cases the defendants were actually represented by counsel throughout their trials. Nevertheless, the two reasons why the Supreme Court presumed that there was prejudice in Holloway, and dispensed with the requirement that the defendant show it, are plainly inapplicable here.
First, the Supreme Court noted that a defense counsel’s statement that his clients have conflicting interests is extremely strong evidence that joint representation will prejudice them by preventing their counsel from being able to fully represent one of them at all stages of the trial. Chief Justice Burger wrote:
[Mjost courts have held that an attorney’s request for the appointment of separate counsel, based on his representations as an officer of the court regarding a conflict of interests, should be granted. . An “attorney representing two defendants in a criminal matter is in the best position professionally and ethically to determine when a conflict of interest exists or will probably develop in the course of a trial.” State v. Davis [110 Ariz. 29, 31, 514 P.2d 1025, 1027 (1973)]. Second, defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem. *236Ibid. Finally, attorneys are officers of the court, and “ ‘when they address the judge solemnly upon a matter before the court, their declarations are virtually made under oath.’ ” State v. Brazile [226 La. 254, 266, 75 So.2d 856, 860-61 (1954)]. We find these considerations persuasive.
435 U.S. at 485-86, 98 S.Ct. at 1179-1180 (footnotes omitted). In effect, the Court was able to determine from counsel’s statement that the accused had been denied full representation by his counsel because of the lawyer’s conflicting loyalties. Since the conflict of interest creates a presumption of prejudice, a further showing of prejudice was not required.51
In addition, the Supreme Court recognized that it would be virtually impossible for an accused to show prejudice in the joint representation context.
[A] rule requiring a defendant to show that a conflict of interests — which he and his counsel tried to avoid by timely objections to the joint representation — prejudiced him in some specific fashion would not be susceptible of intelligent, even handed application. In the normal case where a harmless error rule is applied, the error occurs at trial and its scope is readily identifiable. Accordingly, the reviewing court can undertake with some confidence its relatively narrow task of assessing the likelihood that the error materially affected the deliberations of the jury. Compare Chapman v. California, supra, [386 U.S.] at 24-26 [87 S.Ct. 824, at 828-829], with Hamling v. United States, 418 U.S. 87, 108 [94 S.Ct. 2887, 2902, 41 L.Ed.2d 590] (1974), and United States v. Valle-Valdez, 554 F.2d 911, 914-917 (CA9 1977). But in a case of joint representation of conflicting interests the evil — it bears repeating — is in what the advocate finds himself compelled to refrain from doing, not only at trial but also as to possible pretrial plea negotiations and in the sentencing process. It may be possible in some cases to identify from the record the prejudice resulting from an attorney’s failure to undertake certain trial tasks, but even with a record of the sentencing hearing available it would be difficult to judge intelligently the impact of a conflict on the attorney’s representation of a client. And to assess the impact of a conflict of interests on the attorney’s options, tactics, and decisions in plea negotiations would be virtually impossible. Thus, an inquiry into a claim of harmless error here would require, unlike most cases, unguided speculation.
435 U.S. at 490-91, 98 S.Ct. at 1182.
These two reasons do not support a presumption of prejudice in cases that, like this one, involve allegations that defense counsel was ineffective. Unlike the joint representation cases, there is no showing that a defense lawyer’s mistakes usually cause prejudice to an accused. This case is a good example in which a defendant was not even slightly harmed as a result of his counsel’s alleged errors.
Perhaps more important, in cases involving alleged inadequacy of representation, it will not be as difficult for the defendant to prove prejudice. For example, if (as the dissent asserts) an attorney fails to undertake a thorough investigation, the defend*237ant could readily prove prejudice simply by showing that the evidence that would have been found was exculpatory. Unlike the joint representation cases, the defendant would not be forced to engage in “unguided speculation.” 52
In short, while the facts in Holloway (the trial court ignored counsel’s warning that his clients had conflicting interests) establish inherent prejudice so that “a distinct showing of prejudice [was] unnecessary,”53 that ruling does not constitute a precedent for presuming prejudice from a defendant’s allegations that his counsel provided ineffective representation.
C. Chapman v. California
According to the dissent, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967) establishes that “the burden in each case rests squarely on the government to prove beyond a reasonable doubt that [the] error was harmless.”54 I have no quarrel with that interpretation of Chapman : once a constitutional error is proven the burden of proceeding does shift to the government to prove that the error is harmless. But it begs the question for the dissent to rely on Chapman here because Chapman does not address who has the burden of proof with respect to whether a constitutional error has been committed.
Before the burden of proof shifts to the government under Chapman, whatever prejudice the constitutional error involves must first be established by the claimant. Thus, in Chapman itself, the Government was not required to show that the error was harmless until the defendants had shown that a prejudicial error had been committed. Mr. Justice Black wrote:
Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments, casts on someone other than the person prejudiced by it a burden to show that it was harmless.
386 U.S. at 24, 87 S.Ct. at 828 (emphasis added). Chapman, therefore, only supports the dissent’s position if one assumes that counsel’s alleged breach of duty alone constitutes a constitutional violation. Since that is the question at issue in this case, such an assumption is obviously inappropriate.
D. Chambers v. Maroney
While neither Geders, Holloway, nor Chapman is precedent for the view adopted by the dissent, another Supreme Court opinion, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970), is strong authority for the rule that the burden of proving prejudice rests on the accused.55 In Chambers, the defendant asserted that he “was not afforded the effective assistance of counsel” because his new counsel at his second trial56 did not confer “with [him] until a few minutes before the second trial began.” 399 U.S. at 53, 90 S.Ct. at 1982. The defendant contended that because his lawyer was “unprepared,” he failed to make an adequate effort “to have [certain] guns and ammunition excluded from evidence.” 399 U.S. at 54, 90 S.Ct. at 1982. The district court rejected petitioner’s claim without a hearing and the court of appeals affirmed, noting that “the guns and other materials seized from the *238car were admissible evidence.” Id. In light of the defendant’s inability to show that he was prejudiced, the Supreme Court (7-1) affirmed the conviction.' Mr. Justice White wrote for the Court:
Unquestionably, the court should make every effort to effect early appointments of counsel in all cases. But we are not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel or to hold that, whenever a habeas corpus petition alleges a belated appointment, an eviden-tiary hearing must be held to determine whether the defendant has been denied his constitutional right to counsel.
399 U.S. at 54, 90 S.Ct. at 1982-1983. From the foregoing it is obvious that a mere breach of duty to an accused is not a constitutional violation unless the defendant proves that he was prejudiced. If the principles advocated in the dissent had been applied in Chambers, then the failure of counsel to confer with the accused before trial (a violation of the American Bar Association guidelines) would have been sufficient to establish a constitutional error, thereby forcing the prosecution to prove beyond a reasonable doubt that the defendant was not prejudiced. Thus, Chambers is contrary to the basic contention of the dissent.57
III. THE PHILOSOPHY OF THE DISSENT
There are a great many assertions in the dissent that are not supported by the record and which are unsound factually, legally and logically. These are set forth in considerable detail in my dissent to the panel opinion in Decoster II, (1976), 199 U.S.App. D.C. -, 624 F.2d 196. The plurality opinion ignores many of these and only partially deals with others. Lest silence be interpreted as recognizing their validity a few are hereinafter replied to.
A. Adequacy of Investigation
The principal contention of the dissent is that counsel’s investigation was inadequate because certain witnesses or possible witnesses were not interviewed. The supposed witnesses fit into five categories: (1) witnesses at the Golden Gate Bar, (2) witnesses who were in the D.C. Annex, (3) the two policemen, (4) the victim, and (5) the co-defendants.
1. Golden Gate Bar. There is no controversy as to what happened in the bar; no proffer as to what witnesses in the bar could have said; and Decoster told his counsel, and so testified, that there was “nobody [in the bar] who could testify [he was] there.”58
2. D.C. Annex. There is no dispute as to what transpired at the hotel, and there has never been any indication that exculpatory evidence could have been obtained from witnesses in the Annex.
3. Policemen. Counsel examined officer Ehler at the preliminary hearing.59 In addition, the United States Attorney furnished Decoster’s lawyer with all Jencks Act material and grand jury testimony in advance of the trial. From this, he knew that the testimony of all three of the Government’s witnesses was substantially the same, and very prejudicial to defendant’s case.
4. Victim. After the incident, Crump moved away from the Washington area. There is no indication that he was available to be interviewed by defense counsel. In *239addition, a witness need not consent to pretrial interviews by defense counsel, and there is no assurance that Crump would have done so. Finally, Crump was seriously injured in an automobile accident, and his ability to recollect the incident at the trial was hampered. His only testimony at the trial was as to his identification at the scene of the crime. In light of the limited nature of his testimony, a lengthy interrogation of Crump would have been useless.
5. Co-defendants. Decoster’s counsel was familiar with their versions of the events because he had represented two of the defendants at the preliminary hearing. Counsel’s probing cross-examination of the government’s witnesses proves his familiarity with the facts of the case.
Even now, the dissent and appellant do not and cannot point to any exculpatory evidence that could have been found if De-coster’s lawyer had conducted the unnecessarily thorough investigation that the dissent demands. Judge Bazelon concedes that “[m]y colleagues may be correct that no material information could be elicited from such an investigation.”60 His whole argument rests on the assertion that “it is possible” that exculpatory evidence could have been found. From this he concludes that an enormous investigation should have been conducted so that we would not have to “speculate, post hoc, as to what the witnesses would have said.” 61
On this record, it is clear that it is only my dissenting colleagues who are engaging in speculation. Decoster’s counsel knew from the information available to him that his client was guilty.62 This knowledge was confirmed after the trial when Decoster admitted his guilt. Thus, without speculating at all, it can be said that no investigation, however exhaustive, could have discovered evidence that would have helped De-coster. When as here a defense attorney knows his client is guilty, I wholeheartedly agree with then Judge (now Justice) Stevens’ statement that “counsel ha[s] no duty to search for witnesses, expert or otherwise, who might falsely testify to the contrary.” Matthews v. United States, 518 F.2d 1245, 1246 (7th Cir. 1975). This statement contradicts the dissent’s claim that counsel was required to search for alibi witnesses. Dissent nn.107, 110.
B. Duty to Investigate Accused’s Contradictory Statements
The dissent contends that defense counsel are obligated to investigate contradictory statements by an accused. Dissent n.110. To apply that law here, an accused like Decoster who initially told his attorney that he was present at the scene of the robbery, but later contradicted himself and said that he was not present, would thereby force his counsel to conduct an independent investigation for evidence that might support either statement to determine which version should be presented as a defense63 This suggestion is incredible. It grossly over*240states the duty to investigate and is symptomatic of the unreasonable duties that the dissent is attempting to foist on defense lawyers. Without any investigation, the defendant’s contradictory statements are conclusive proof that one of them is false and defense counsel owes no duty to a prevaricating accused to straighten out an obviously crooked story. See Dissent nn.22, 49, 112, page-of 199 U.S.App.D.C., page 272 of 624 F.2d.
C. Duty to Investigate for a Guilty Client
The dissent states: “[T]he suggestion that a client whose lawyer believes him to be guilty deserves less pretrial investigation is simply wrong. An attorney’s duty to investigate is not relieved by his own perception of his client’s guilt or innocence.”64 This pronouncement is foreign to a lawyer’s basic obligation to the court and his profession. When, as here, defense counsel has reasonable grounds for believing his client guilty, that perception must influence his representation of the client. My dissenting colleagues recognize that a lawyer’s obligation is only to make “reasonable” inquiries (dissent n.112), but then they ignore the reasonableness requirement and dissent because of counsel’s failure to investigate in support of a fabricated defense. Dissent pages -, -, -, - of 199 U.S.App. D. C., pages 285, 286, 292, 294 of 624 F.2d. The dissent would “brand as ineffective any conduct falling below the minimum standards of competent lawyering, without regard to the client’s guilt or innocence.” Dissent n.131. While the quality of counsel’s performance may not depend on the guilt or innocence of his client, that does not contradict the principle that in determining whether a counsel has breached a duty, the guilt or innocence of his client may affect what he was required to do to satisfy the requirement of a reasonably competent lawyer.
Defense counsel are not required to close their eyes to the obvious and search for alibis for defendants who would like assistance in the fabrication of a defense, for that would be a violation of the ethical standards of the legal profession. As Chief Justice Burger wrote for the Court: there is “an important limitation on a defendant’s right to the assistance of counsel: counsel ethically cannot assist his client in presenting what the attorney has reason to believe is false testimony.” United States v. Grayson, 438 U.S. 41, 98 S.Ct. 2610, 57 L.Ed.2d 582, 592 (1978) (emphasis added). Thus, when the dissent states that an attorney cannot be guided by “his own perception of his client’s guilt or innocence,”65 it contradicts the Supreme Court.
D. Bond Review
The dissent contends that defense counsel’s delay in seeking bond review is an example of his ineffectiveness. It is clear, however, that such delay was entirely irrelevant to the outcome of the case, for when the bond review motion was filed it was denied. Even assuming that counsel had unreasonably delayed filing for bond review, Decoster was not prejudiced in any way.
In addition, on the facts of this case it is apparent that it was unnecessary for defense counsel to file for bond review at all. Counsel, however, cannot be blamed for filing such a frivolous motion as this court is partially responsible because of the ever increasing list of unreasonable burdens some of our opinions place on defense counsel. On the facts the merit of the decision to deny bond reduction cannot be questioned. When Decoster was arrested on this charge, (1) he was already being sought as a fugitive on a bench warrant issued in *241another case; (2) he had no fixed address, no community ties, and no employment whatsoever; (3) he was an admitted narcotics user; (4) he had previously been arrested for carrying a dangerous weapon and had jumped bail while under a $600 bond; (5) as a juvenile he had been involved in a robbery and was sent to the Receiving Home from which he escaped;66 and (6) the Bail Agency did not recommend release, even on conditions.
The wisdom of the decision to continue Decoster’s incarceration was borne out when his trial was postponed. As a result of this delay, Decoster was released to the Black Man’s Development Center. As might have been expected from his history of escapes, appellant promptly became a fugitive from justice. Under these circumstances, all of which were known to Decoster’s counsel, it is folly to suggest that a motion for release should have been filed or that any prejudice resulted from trial counsel not immediately moving for Decoster’s release. It was a complete waste of judicial effort for the panel, knowing all of this, to remand the case for a hearing on this frivolous point.
E. Decoster as a Fugitive from Justice
The dissent comments critically about the seventeen month period between the date of the offense and appellant’s trial. It fails to recognize that over eight months of this delay was caused by Decoster jumping bail and remaining a fugitive. The facts are delineated in the Government’s Supplemental Brief 3:
On January 21 appellant absconded from the Black Man’s Development Center and never returned. [The] Bail Agency then reported that appellant had further violated the conditions of his release by reporting only once since being released. When the case was called for trial on February 9, appellant did not appear, and a bench warrant issued. Appellant was not rearrested until September 1971, after his codefendants in this case had pleaded guilty [at their trial] on June 18, 1971.
The trial was also delayed because one of the primary prosecution witnesses, Mr. Crump, was seriously injured in an automobile accident. The seventeen month delay, therefore, was not caused by any fault on the part of the Government.
F. Avoiding Futile Retrials
The dissent states:
Although the question of prejudice remains part of the court’s inquiry, it is distinct from the determination of whether the defendant has received effective assistance. Rather, prejudice is considered only in order to spare defendants, prosecutors and the courts alike a truly futile repetition of the pretrial and trial process.67
Decoster was found guilty on clear, uncon-tradicted evidence. Prior to trial his letters in effect admitted his participation in the robbery and thereafter, at sentencing, he practically admitted his guilt. If this case is a good example of how my dissenting colleagues would apply their rule, then it is hard to imagine what it would take to convince them that a retrial would be futile. This illustrates part of the problem presented by the issues here. Courts can agree on language for standards for counsel but some judges, as in the dissent, give the standards such an unreasonable construction that the actual standard becomes meaningless.
G. Decoster’s Participation in the Events of the Robbery
There is considerable doubt about what story Decoster was telling when he was first arrested. The dissent states: “Decoster claimed that he was not with [his co-defendants].” Dissent n.110. Yet in his letter to Judge Waddy filed November 13, 1970, Decoster wrote: “I can prove that I am only guilty of assault by self defence." See dissent n.22. And in his letter to his counsel, which Decoster testified he mailed *242between May and November, 1970, he admitted his participation in the events of the robbery. Dissent page-of 199 U.S.App. D.C., page 273 of 624 F.2d. These letters obviously contradict the statements of the dissent at n.110 because if Decoster were “guilty of assault by self defence” he would have had to be in Crump’s presence when he assaulted him in “self defence.” So to the extent that the dissent relies on any claim by Decoster that he was not with the co-defendants it is of questionable validity.
H. Sentencing
The dissent states that the Department of Corrections “clarified Decoster’s sentence” because it was allegedly not properly executed.68 This confuses the role of trial and appellate counsel and what is referred to as a “clarification” is nothing more than the routine computation of a legally adjudged sentence.
The dissent also implies that “counsel’s failure to offer any allocution” caused “the trial judge’s decision to sentence Decoster to a prison term of 2-8 years while his co-defendants received only probation.”69 The lesser sentences for the co-defendants, however, were justified by (1) their guilty pleas, and because they did not (2) use narcotics, (3) jump bail, and (4) have a substantial criminal record, as Decoster did.70
I. Reversible Error
The trial court found after an extensive and complete hearing that Decoster’s counsel, in putting the Government to its proof, had presented Decoster’s only defense and that Decoster had failed to demonstrate any prejudice from his counsel’s conduct of his defense. The dissent has failed to demonstrate wherein the trial court’s findings and conclusions are clearly erroneous. In material respects, the dissent understates incriminating evidence, seeks to avoid evaluating “the precise effect” of omissions by defense counsel, dissent 26, grossly exaggerates the probative effect of evidence that might favor the defendant, claims impeachment on the basis of immaterial variances, dissent n.106, indulges in a great deal of unwarranted speculation, grossly misstates my position, dissent n.102, places unwarranted reliance on dissenting opinions and its prior opinion in this case, goes outside the record, raises new issues, dissent n.38, 89, 105, refuses to recognize that Decoster was attempting to force his counsel to assert a perjured defense, relies on immaterial and irrelevant evidence, and would rigidly apply erroneous legal theories and arbitrary per se and “automatic reversal” rules, dissent page - of 199 U.S.App.D.C., page 293 of 624 F.2d, n.149. Thus, no reversible error has been shown.
J. Changing Judges’ Duties
The dissent argues that the “adversary system is . .in shreds,”71 and suggests that trial judges should greatly expand their intervention in the trial of criminal cases, allegedly to protect defendants. This overlooks the rule that a judge’s obligation is to see that justice is done — to all parties. The dissent would ignore the rights of the public.
K. Extraneous Considerations
Most extraordinarily, the dissent sees merit in a “rule requiring automatic reversal” in order to “provide the deterrent effect necessary to insure • that all defendants — innocent or guilty — receive the effective assistance of counsel” according to the extreme standards of the dissent. It argues: “Reversing convictions [automatically] is likely to have a significant prophylactic effect for several reasons [among them] . . . frequent reversals *243are likely to attract the attention of the public and may enhance the likelihood of legislative reform[s].” Dissent page-of 199 U.S.App.D.C., page 293 of 624 F.2d and n.145. (Emphasis added). However, it is fundamental to the proper administration of justice that criminal convictions should only be reversed for legal error and never for the “prophylactic effect”. I cannot agree with the outrageous suggestion that freeing convicted criminals is an appropriate way to go about securing legislation from Congress that conforms to the desires of individual judges.
L. Ready for Trial
The dissent finds fault with Decoster’s lawyer because
even after receiving appellant’s letter [stating that he was only guilty of assault by self-defense] counsel was ready to go to trial without having attempted to contact the co-defendants to learn their version of the events on the night of the robbery.72
This criticism is preposterous. Defense counsel had been acting for Decoster since May 30, 1970, and was ready to go to trial in November, 1971: while the record is not clear, it is my analysis that counsel’s defense was that Decoster was only fighting not robbing, the victim. The testimony of two accomplices who had pled guilty would obviously not be helpful. The day before trial in 1972 Decoster changed his story and claimed that he was not at the scene of the robbery. On these facts, counsel had no choice but to announce ready for trial. What else could he have done: ask for a continuance and tell the court that he needed extra time because his client was changing his story? Of course not. The trial date had been set after Decoster’s long fugitivity and Decoster’s attempt to change his story on the eve of a reset trial was no justification for a continuance. No Judge would or should grant a continuance under such circumstances. In short, counsel’s difficulties were caused by Decoster’s eleventh hour attempt to fabricate an alibi. Counsel simply had to do as well as he could with a bad situation.73 The dissent in this complaint thus unsuccessfully scratches in barren ground to find some basis to criticize counsel.
M. Representation of Indigents
The dissent plays the theme from Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956), that “[t]here can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” But there is nothing in the record to indicate that Decoster’s poverty caused him to commit robbery or prevented him from receiving a fair trial.74 Increased billions have been spent in recent years to alleviate *244poverty, but during this period all forms of crime have soared. And under the Criminal Justice Act most defendants in this court are as well, if not better represented than the Government. Thus, the dissent’s reference to poverty is an injudicial appeal to sympathy.
Those of us who have been familiar through the years with the massive efforts of the members of the bar to represent indigent defendants, most times without any fee, deny categorically the assertion by the dissent that criminal defendants are poorly served by the bar. Dissent, 2, 6, n.3, n.80, n.89. We specifically resent the inference that appointed counsel scrimp on requesting investigative expense because of an alleged fear that their own fees would thereby be lessened. Dissent n.80. And the claim that some writers and reports support its position, when it is based on partial statements, is. unseemly. For instance, Tague, The Attempt To Improve Criminal Defense Representation, 15 Am. Crim.L.Rev. 109, 131 (1977) is cited, Dissent n.80. But the statement is ignored that “The relationship that an attorney has with his client and with the court can be further strained if the attorney must be ordered to investigate.” Id. at 133.
The dissent purports to be concerned with “equal justice” for the poor. But its myopic view of justice overlooks justice for the public, and for that far larger number of poor Americans who are the victims of crime. It has also been a boon to some defendants who are not only not poor but are extremely wealthy. Illicit drug dealers, many of whom are rolling in illegal wealth, are equal beneficiaries with the poor.75 The ease with which a post trial claim of ineffective assistance of counsel can be made is evidenced by the reported claim of Patty Hearst, not normally thought of as poor, that her defense counsel, the famed F. Lee Bailey, had provided her with ineffective assistance.76
It is hardly an exaggeration to say that under the arguments of the dissent, the principle issue in a criminal appeal is whether the accused is poor, rather than whether his guilt was properly determined in a fair trial. Thankfully, this Circuit has now definitively rejected that approach. Neither a rich man nor a poor man has a right to use perjured testimony in his defense. Neither a rich nor a poor defendant has a right to compel his counsel to investigate perjured alibis. And no defendant, be he rich or poor, has a right to have his conviction set aside because his lawyer did not investigate to obtain witnesses who would support a phony defense.
IV. CONCLUSION
While purporting to explore standards for defense counsel in their representation of criminal defendants, Decoster I was in fact a bold attempt to shift the burden of proof to the Government. The intolerable results that inevitably follow from such a shift are well illustrated by the position taken by the panel below and the dissent here.
We now repudiate this. misguided attempt to change the law and reaffirm the well established rule in this Circuit that the burden of proving prejudice from defense counsel’s ineffectiveness rests on the accused. Counsel in this Circuit need not search for non-existent witnesses who might support perjured alibis conjured up by defendants on the eve of trial.
Thus fails the attempt of my dissenting colleagues to create a standard of law that would result in a retrial for an obviously guilty defendant, supposedly because his lawyer’s investigation of the crime was not thorough enough, despite the defendant’s failure to produce a single witness who *245would testify to a single truthful exculpatory fact. Decoster was found guilty by a jury. The trial judge twice concurred in that judgment. The accused in effect admitted his participation in the robbery and his guilt and on appeal to this court did not contend that his counsel had been ineffective. That claim was initiated by the other members of the original panel. It would be unthinkable for this court to reverse such a conviction because defense counsel failed to investigate every possible fabricated defense.
. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973) [hereafter referred to as DeCoster /].
. American Bar Association, Project on Standards for Criminal Justice, Standards Relating to the Defense Function (App.Draft 1971) [hereafter referred to as ABA Standards].
. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938).
. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
. Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942).
. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
. Id.
. Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
. Payne v. Arkansas, 356 U.S. 560, 567-68, 78 S.Ct. 844, 2 L.Ed.2d 975 (1958).
. Tumey v. Ohio, 273 U.S. 510, 47 S.Ct. 437, 71 L.Ed. 749 (1927).
. Chapman v. California, 386 U.S. 18, 43, 87 S.Ct. 824, 837, 17 L.Ed.2d 705 (1967) (Stewart, J., concurring).
. Id. at 22-24, 87 S.Ct. 824; Fahy v. Connecticut, 375 U.S. 85, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963).
. The term originated in Powell v. Alabama, supra, where the Court held that the trial judge’s failure to make an “effective appointment of counsel,” 287 U.S. at 71, 53 S.Ct. 55, had resulted in the “denial of effective and substantial aid” of counsel, id. at 53, 53 S.Ct. at 58, thereby depriving defendant of due process of law.
. Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).
. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972).
. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975).
. Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).
. Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Glasser v. United States, 315 U.S. 60, 69-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. Holloway v. Arkansas, supra, 435 U.S. at 482, 98 S.Ct. 1173. Indeed, joint representation may afford economies and even enhance the presentation of a defense. See Glasser v. United States, supra, 315 U.S. at 92, 62 S.Ct. at 475 (Frankfurter, J., dissenting) (“Joint representation is a means of insuring against reciprocal recrimination. A common defense often gives strength against a common attack.”), quoted in Holloway v. Arkansas, supra, 435 U.S. at 482-83, 98 S.Ct. 1173. After all, many cases of multiple defendants (even where each has his own counsel) may involve situations where each would rather be tried alone. But severance is a matter of judicial discretion under Fed.R.Crim.P. 14.
. Holloway v. Arkansas, supra, 435 U.S. at 484-87, 98 S.Ct. 1173.
. See Powell v. Alabama, supra, 287 U.S. at 71, 53 S.Ct. 55.
. Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970).
. Id. at 54, 90 S.Ct. at 1982-1983.
. Holloway v. Arkansas, supra, 435 U.S. at 482, 98 S.Ct. 1173, quoting Glasser v. United States, supra, 315 U.S. at 70, 62 S.Ct. 457.
. Tollett v. Henderson, 411 U.S. 258, 264, 93 S.Ct. 1602, 1606, 36 L.Ed.2d 235 (1973); McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970).
. McMann v. Richardson, supra, 397 U.S. at 774, 90 S.Ct. at 1450.
. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976).
. Id. at 102 n.5, 96 S.Ct. 2392.
. McQueen v. Swenson, 498 F.2d 207, 218 (8th Cir. 1974), on remand, 560 F.2d 959 (8th Cir. 1977).
. 586 F.2d 1325 (9th Cir. 1978).
. Id. at 1330, quoting McMann v. Richardson, supra, 397 U.S. at 774, 90 S.Ct. 1441.
. Id. at 1340 (Hufstedler, J., concurring and dissenting).
. Id. at 1336-37.
. Diggs v. Welch, 80 U.S.App.D.C. 5, 7, 148 F.2d 667, 669 (1945).
. See Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945).
. Mitchell v. United States, 104 U.S.App.D.C. 57, 259 F.2d 787, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958).
. Id. 104 U.S.App.D.C. at 65-66, 259 F.2d at 795-96 (Fahy, J., dissenting).
. Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).
. 126 U.S.App.D.C. at 339-40, 379 F.2d at 116-17.
. Scott v. United States, 138 U.S.App.D.C. 339, 427 F.2d 609 (1970); United States v. Hammonds, 138 U.S.App.D.C. 166, 425 F.2d 597 (1970).
. E. g., Beasley v. United States, 491 F.2d 687, 694 (6th Cir. 1974).
. As it happens, the author of Bruce had previously, as appointed counsel in Mitchell, sought to persuade the court to move from Fifth Amendment to Sixth Amendment analysis. See 104 U.S.App.D.C. at 66, 259 F.2d at 796 (Fahy, J., dissenting).
. Maryland v. Marzullo, 435 U.S. 1011, 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (White, J., dissenting).
. Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970). See also Marzullo v. Maryland, 561 F.2d 540, 543-44 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (“range of competence demanded of attorneys in criminal cases”).
. Restatement (Second) of Torts § 299A & comment e (1965), cited in Moore v. United States, supra, 432 F.2d at 736 n.24.
. See, e. g., Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978) (“reasonably competent attorney acting as a diligent conscientious advocate”); United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976) (“customary skills and diligence that a reasonably competent attorney would perform under similar circumstances”); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir. 1960) (“counsel reasonably likely to render and rendering reasonably effective assistance”). The MacKenna test has been adopted by the Sixth Circuit. Beasley v. United States, supra, 491 F.2d at 696.
Three circuits continue to adhere to the “farce and mockery” standard. See, e. g., Gillihan v. Rodriguez, 551 F.2d 1182, 1187 (10th Cir.), cert. denied, 434 U.S. 845, 98 S.Ct. 148, 54 L.Ed.2d 111 (1977); Rickenbacker v. Warden, 550 F.2d 62 (2d Cir. 1976), cert. denied, 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85 (1977); United States v. Madrid Ramirez, 535 F.2d 125, 129 (1st Cir. 1976). The First and Second Circuits, while formally adhering to the “farce and mockery” standard, have in many recent cases concluded that a reevaluation of that test is not necessary because counsel’s alleged deficiencies did not amount to ineffectiveness even under the standard of “reasonable competency.” See, e. g., Rickenbacker v. Warden, supra, 550 F.2d at 66; United States v. Madrid Ramirez, supra, 535 F.2d at 129-30.
. United States ex rel. Williams v. Twomey, 510 F.2d 634, 640 (7th Cir.) (Wyzanski, J.), cert. denied, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109 (1975).
. Cooper v. Fitzharris, supra, 586 F.2d at 1330, quoting McMann v. Richardson, supra, 397 U.S. at 774, 90 S.Ct. 1441.
. 159 U.S.App.D.C. at 332-33, 487 F.2d at 1203-04.
. 199 U.S.App.D.C. at-, 624 F.2d at 203.
. DeCoster 1, 159 U.S.App.D.C. at 333, 487 F.2d at 1204; Decoster II, 199 U.S.App.D.C. at -, 624 F.2d at 203.
. ABA Standards, supra note 2, at 11. That the ABA Standards were not conceived as “minimum” standards is highlighted by the fact that both the Special Committee on Standards for the Administration of Justice and the Project on Standards for Criminal Justice originally included the term “Minimum Standards” in their titles. These designations were dropped by vote of the ABA House of Delegates in August 1969. Id. at v.
. Id. at - of 199 U.S.App.D.C., at 203 of 624 F.2d.
. 389 F.2d 224 (4th Cir. 1968).
. 435 F.2d 1089 (4th Cir. 1970).
. United States ex rel. Green v. Rundle, 452 F.2d 232 (3d Cir. 1971).
. United States ex rel. Green v. Rundle, 303 F.Supp. 972 (E.D.Pa.1969), reversed, 452 F.2d 232 (3d Cir. 1971).
. 452 F.2d at 235.
. People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (Feb. 22, 1979).
. See text accompanying notes 30-33 supra.
. 23 Cal.3d at 424-25 & n.14, 152 Cal.Rptr. at 738-39 & n.14, 590 P.2d at 865-66 & n.14.
. Cooper v. Fitzharris, 551 F.2d 1162, 1166 (9th Cir. 1977) (Duniway, J., concurring), vacated, see 586 F.2d 1325 (1978) (en banc).
. Commonwealth v. Saferian, 366 Mass. 89, 96, 315 N.E.2d 878, 883 (1974).
. In our decision to modify Bruce, we have taken into account that the District of Columbia Court of Appeals uses the Bruce standard and language. See, e. g., Fernandez v. United States, 375 A.2d 484, 486-87 (D.C.App.1977); Cooper v. United States, 248 A.2d 826, 827 (D.C.App.1969). However, the change is only from a requirement that defendant show actual effect, required by Bruce, to the “likelihood” test of Saferian, that is in turn subject to prosecution rebuttal to negative prejudice in fact.
As to the content of the effect that defendant must show is likely, whether it be characterized as “blott[ing] out the essence of a substantial defense” or “deprivation of an otherwise available, substantial defense” is a matter of form more than substance.
. Mitchell v. United States, supra, 104 U.S.App.D.C. at 65, 259 F.2d at 795 (Fahy, J., dissenting).
. 28 U.S.C. § 2106 (1976); see Scott v. United States, supra, 138 U.S.App.D.C. at 340, 427 F.2d at 610.
. Dyer v. United States, 126 U.S.App.D.C. 312, 379 F.2d 89 (1967).
. 126 U.S.App.D.C. at 340, 379 F.2d at 117.
. See, e. g., McNabb v. United States, 318 U.S. 332, 340-41, 63 S.Ct. 608, 87 L.Ed. 819 (1947).
. See Boyd v. Henderson, 555 F.2d 56, 62 n.8 (2d Cir. 1977).
. United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979) (formal violation of Fed.R.Crim.P. 11 provides no basis for collateral attack of conviction based on guilty plea); Davis v. United States, 417 U.S. 333, 345-46 & n.15, 94 S.Ct. 2298, 41 L.Ed.2d 109 (1974) (intervening change in law of circuit at as what constitutes a lawful draft induction order is cognizable under 28 U.S.C. § 2255; conviction for an act the law does not make criminal presents one of the “exceptional circumstances” that “inherently results in a complete miscarriage of justice”); Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 471, 7 L.Ed.2d 417 (1962) (failure to permit allocution at sentencing not a “fundamental defect”); see Stone v. Powell, 428 U.S. 465, 477 n.10, 96 S.Ct. 3037, 3044, 49 L.Ed.2d 1067 (1976) (reiterating the “established rule” that “non-constitutional claims that could have been raised on appeal, but were not, may not be asserted in collateral proceedings”); Sunal v. Large, 332 U.S. 174, 178, 67 S.Ct. 1588, 91 L.Ed. 1982 (1947) (collateral attack may not “do service for an appeal”).
. 428 U.S. 465, 491 n.31, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976); see also United States v. Timmreck, 441 U.S. 780, 99 S.Ct. 2085, 2087, 60 L.Ed.2d 634 (1979); Henderson v. Kibbe, 431 U.S. 145, 154 n.13, 97 S.Ct. 1730, 52 L.Ed.2d 203 (1977); Schneckloth v. Bustamonte, 412 U.S. 218, 259-63, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973) (Powell, J., concurring). In Stone v. Powell, those concerns were heightened by the special problem of federalism raised by federal challenges to state court judgments. The combination led to denial of collateral relief even for a constitutional claim.
. Scott v. United States, supra, 138 U.S.App.D.C. at 340, 427 F.2d at 610; United States v. Hammonds, supra, 138 U.S.App.D.C. at 169, 425 F.2d at 600.
. See McQueen v. Swenson, supra, 498 F.2d at 220. As to the nature of the government’s burden there may be a distinction depending on the court’s appraisal of the showing by accused. If the court concludes that a constitutional violation has been established, then there is doctrine indicating that the government must show beyond a reasonable doubt that there has been no prejudice in fact. Chapman v. California, supra, Fahy v. Connecticut, supra. See text accompanying notes 11-12 supra. If the showing by the accused causes the court serious misgivings notwithstanding the absence of a constitutional violation, see discussion at text accompanying notes 65-70, supra, the court may be satisfied with a response by the government, that there has not in fact been any injustice, even though this response falls short of a “beyond a reasonable doubt” standard.
. E. g., Mitchell v. United States, supra, 104 U.S.App.D.C. at 65-66, 259 F.2d at 795-96 (Fahy, J., dissenting) (ultimate question is whether the conviction “rests in substantial degree” upon lack of professional skill); Cooper v. Fitzharris, supra, 586 F.2d at 1136-40 (Hufstedler, J., concurring and dissenting); People v. Pope, supra, 23 Cal.3d at 425, 152 Cal.Rptr. at 739, 590 P.2d at 866.
. See Mitchell v. United States, supra, 104 U.S.App.D.C. at 63, 259 F.2d at 793; discussed at text accompanying note 36 supra.
. See Bines, Remedying Ineffective Assistance in Criminal Cases: Departures from Habeas Corpus, 59 Va.L.Rev. 927, 961 (1973).
. 177 U.S.App.D.C. 423, 543 F.2d 908 (1976). In Pinkney, appellant claimed denial of effective assistance of counsel at a sentencing hearing because counsel failed, first, to discuss with him the content of the government’s allocution memorandum and, second, to .object to the government’s allegation in the memorandum that appellant participated in drug traffic in the District of Columbia. We emphasized that appellant had failed to present an affidavit disclosing “evidence portraying the movant’s claim materially and resolutely, and evincing a capability of mounting a serious challenge.” 177 U.S.App.D.C. at 431, 543 F.2d at 916 (emphasis supplied). It was acknowledged that “once a substantial violation of counsel’s duties is shown, the Government’s burden is to demonstrate lack of prejudice therefrom." Id. 177 U.S.App.D.C. at 431-32 n.59, 543 F.2d at 916-917 n.59. But the court said:
Only if the evidentiary elements of [appellant’s claim that counsel’s failure to inform him deprived him of the opportunity to contest the allegations of the government’s memorandum] had appeared in appellant’s motion would he have been entitled to a hearing, and only if evidence offered at a hearing tended to establish the elements would the Government have been summoned to disestablish prejudice.
Id. In short, the defendant must show that counsel’s alleged deficiencies would probably have affected the outcome before the government has the burden of demonstrating that, in fact, the result would not have been affected.
. 498 F.2d 207 (8th Cir. 1974), on remand, 560 F.2d 959 (8th Cir. 1977).
. Id. at 216.
. United States v. Clayborne, 166 U.S.App.D.C. 140, 509 F.2d 473 (1974).
. Id. 166 U.S.App.D.C. at 144, 509 F.2d at 477.
. United States ex rel. Green v. Rundle, 452 F.2d 232, 235 (3d Cir. 1971); discussed at text accompanying notes 56-58 supra.
. 518 F.2d 1245 (7th Cir. 1975).
. Id. at 1246.
. 18 U.S.C. § 3006A(e) (1976) (contemplating ex parte proceeding); United States v. Harris, 542 F.2d 1283, 1314-16 (7th Cir. 1976), cert. denied, 430 U.S. 934, 97 S.Ct. 1558, 51 L.Ed.2d 779 (1977); Mason v. Arizona, 504 F.2d 1345 (9th Cir. 1974), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975); Report of the Committee to Implement the Criminal Justice Act, 36 F.R.D. 285, 290 (1965).
. United States v. Katz, 425 F.2d 928, 930 (2d Cir. 1970). Judge Friendly’s comment, although directed to the choice of tactics at trial, has more general application. He said:
Determination of the effectiveness of counsel cannot be divorced from the factual situation with which he is confronted. When, as here, the prosecution has an overwhelming case based on documents and the testimony of disinterested witnesses, there is not too much the best defense attorney can do. If he simply puts the prosecution to its proof and argues its burden to convince the jury beyond a reasonable doubt, the defendant may think him lacking in aggressiveness, and surely will if conviction occurs. If he decides to flail around and raise a considerable amount of dust, with the inevitable risk that some may settle on his client, the defendant will blame him if the tactic fails, although in the rare event of success the client will rank him with leaders of the bar who have used such methods in some celebrated trials of the past.
. Listed in order of the proceedings in appellant’s case, they are:
(1) Counsel was dilatory in seeking a bond review while appellant was incarcerated for almost five months following his arrest on May 29, 1970;
(2) Counsel failed to obtain a transcript of appellant’s preliminary hearing and failed to employ that transcript to impeach prosecution witnesses at trial;
(3) Counsel failed to interview any potential witnesses prior to trial;
(4) Counsel announced “ready” for trial at a time when he did not know whether or not he would present alibi witnesses and before he had fully developed his defense;
(5) Counsel offered to waive jury trial and to permit appellant to be tried before the court when the court had heard a part of the evidence in connection with the guilty pleas of the two co-defendants;
*211(6) Counsel failed to make an opening statement; and
(7) Counsel failed to see that appellant’s sentence was properly executed, in that he failed to see that appellant was given credit for time served.
Appellant also alleges that he was denied the effective assistance of counsel because of counsel’s failure to object to appellant’s appearing before the jury in prison clothing. This objection was not asserted below, and therefore is not properly before this court.
. See Lutwak v. United States, 344 U.S. 604, 619, 73 S.Ct. 481, 97 L.Ed. 593 (1953); United States v. Liddy, 166 U.S.App.D.C. 95, 109, 509 F.2d 428, 442 (1974).
. While incarcerated after his arrest, appellant did allege, in a letter to Judge Waddy protesting his continued confinement and the failure of counsel to file a bond review motion, that he had been defending himself from an assault by Crump. This claim is consistent with that he made in a letter to his attorney shortly before trial. There is no indication that the attorney was ever aware of the contents of this letter, or that appellant made similar representations to him prior to the letter to counsel mentioned above. At the remand hearing, appellant admitted this latter self-defense claim was a fabrication.
. Taylor could not be located.
. Appellant attacks counsel’s filing of the bond review motion in an incorrect court, the District Court, rather than the correct court, General Sessions. While we do not commend this error, some confusion was “understandable,” as the government’s lawyer commented at the remand hearing.
. See Dillane v. United States, 121 U.S.App.D.C. 354, 350 F.2d 732 (1965) (ineffectiveness in filing notice of appeal warrants only remedy of opportunity to file appeal).
. See note 93 and accompanying text supra.
. Deutsch, Law as Metaphor: A Structural Analysis of Legal Process, 66 Geo.L.J. 1339, 1342 (1978).
. See note 2 supra.
. Dissenting opinion of Bazelon, J., at-of 199 U.S.App.D.C., at 276 of 624 F.2d.
. ABA Standards, supra note 2, at 11; see text accompanying notes 52-53 supra.
. Although Judge Hufstedler dissented from the imposition of a strict prejudice requirement in Cooper v. Fitzharris, 586 F.2d 1325 (9th Cir. 1978), she recognized that considerations of effect on outcome where pertinent to determining whether a defendant had been denied the effective assistance of counsel. Id. at 1340; see text accompanying notes 32-33 supra. And the Supreme Court of California, while adopting a standard similar to that of DeCoster I, still imposed on defendant the burden of showing that counsel’s failures had resulted “in the withdrawal of a potentially meritorious defense.” People v. Pope, 23 Cal.3d 412, 425, 152 Cal.Rptr. 732, 739, 590 P.2d 859, 866 (1979); see text accompanying notes 59-61 supra.
. See dissenting opinion of Bazelon, J., at ---of 199 U.S.App.D.C., at 288-289 of 624 F.2d.
. United States v. Pinkney, 177 U.S.App.D.C. 423, 543 F.2d 908 (1976).
. Decoster II, 199 U.S.App.D.C. at----, 624 F.2d at 308-309. He observed, 199 U.S.App.D.C. at---, 624 F.2d at 309-310, that impairment could be presumed where “acts or omissions of [defense] counsel are . . . likely to have impaired the defense” and yet consequence would be difficult to prove. These words - could be viewed as suggesting an approach not unlike our own opinion, except that the likely effect is based not on an inquiry in context, but is established by the nature of the violation (described as a “total failure to conduct factual investigations,” 199 U.S.App.D.C. at -, 624 F.2d at 310).
. Dissenting opinion of Bazelon, J., at-of 199 U.S.App.D.C., at 282 of 624 F.2d.
. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); see text accompanying notes 22-23 supra.
. See dissenting opinion of Bazelon, J., at ---of 199 U.S.App.D.C., at 289-290 of 624 F.2d, citing Holloway v. Arkansas, 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978); Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).
. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976); see text accompanying notes 27-28 supra.
. W. Hurst, Law and Social Process in United States History 165 (1972) (1959 Cooley Lectures, U. Michigan).
. Bruce v. United States, 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).
. United States v. DeCoster, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973).
. This flexibility in remedies on direct appeal found its roots in Bruce’s recognition, building on the case of Dyer v. United States, 126 U.S. App.D.C. 312, 379 F.2d 89 (1967), that relief may be justified by a lesser showing on direct appeal than on collateral attack. See text accompanying notes 65-73 supra.
. Opinion of Robinson, J., at-n.44, of 199 U.S.App.D.C., at 250 n.44 of 624 F.2d.
. See, e. g., Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932); Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Betts v. Brady, 316 U.S. 455, 62 S.Ct. 1252, 86 L.Ed. 1595 (1942); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Faretta v. California, 422 U.S. 806, 807, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). The importance of counsel’s function to the effective operation of our adversary system is unquestioned. The Supreme Court stated in Geders v. United States, 425 U.S. 80, 88, 96 S.Ct. 1330, 1335, 47 L.Ed.2d 592 (1976):
Our cases recognize that the role of counsel is important precisely because [the ordinary] defendant is ill-equipped to understand and deal with the trial process without a lawyer’s guidance.
Glasser v. United States, 315 U.S. 60, 69-70, 62 S.Ct. 457, 464, 86 L.Ed. 680 (1942), is to the same effect:
The guarantees of the Bill of Rights are the protecting bulwarks against the reach of arbitrary power. Among those guarantees is the right granted by the Sixth Amendment to an accused in a criminal proceeding in a federal court “to have the Assistance of Counsel for his defense.” “This is one of the safeguards * * * deemed necessary to insure fundamental human rights of life and liberty,” and a federal court cannot constitutionally deprive an accused, whose life or liberty is at stake, of the assistance of counsel. Johnson v. Zerbst, 304 U.S. 458, 462, 463, 58 S.Ct. 1019, 82 L.Ed. 1461 [(1938)].
. This rule applies in almost every case. Exceptions may perhaps be in order in the few cases in which the prosecutor somehow has easier access than the defendant to relevant information. See I.C., infra.
. See, e. g., Diggs v. Welch, 80 U.S.App.D.C. 5, 6-7, 148 F.2d 667, 668-69 (1945); Jones v. Huff, 80 U.S.App.D.C. 254, 255, 152 F.2d 14, 15 (1945).
. The panel was composed of Chief Judge Ba-zelon and Judge Leventhal and issued per cu-riam.
. See cases cited at note 3 supra.
. In addition to this circuit, seven other circuits — the Third, Fourth, Fifth, Sixth, Seventh, Eighth, and Ninth — have rejected the farce and mockery test as a standard that must be met in determining inadequate assistance of counsel. In Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970), the Third Circuit stated:
|T]he standard of adequacy of legal services as in other professions is the exercise of the customary skill and knowledge which normally prevails at the time and place.
This standard was reaffirmed in United States v. Johnson, 531 F.2d 169, 174 (3d Cir. 1976), where the court added:
[I]t is clear from our decisions that it is the particular facts of each case which determine whether the attorney in question has provided the constitutionally required effective assistance of counsel.
In Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) the Fourth Circuit expressly rejected the farce and mockery test and adopted a normal competence standard: “Was the defense counsel’s representation within the range of competence demanded of attorneys in criminal cases?” The Fifth Circuit has adopted the following standard: whether the attorney was “reasonably likely to render and [rendering] reasonably effective [assistance.]” United States v. Gray, 565 F.2d 881, 887 (5th Cir. 1978); Mason v. Balcom, 531 F.2d 717, 724 (5th Cir. 1976); Burston v. Caldwell, 506 F.2d 24 (5th Cir.), cert. denied, 421 U.S. 990, 95 S.Ct. 1995, 44 L.Ed.2d 480 (1975). The Sixth Circuit has adopted the same standard as the Fifth Circuit. United States v. Toney, 527 F.2d 716, 720 (6th Cir. 1975), cert. denied, 429 U.S. 838, 97 S.Ct. 107, 50 L.Ed.2d 104 (1976); Maglaya v. Buchkoe, 515 F.2d 265, 269 (6th Cir. 1975); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). In United States v. Sielaff, 542 F.2d 377, 379 (7th Cir. 1976), cert. denied sub nom. Sielaff v. Williams, 423 U.S. 876, 96 S.Ct. 148, 46 L.Ed.2d 109, the Seventh Circuit stated:
In this Circuit a petitioner asserting a lack of effective assistance of counsel in a criminal case must prove that his counsel’s performance did not meet “a minimum stan*220dard of professional representation.” [citations omitted].
This standard was reaffirmed in United States v. Brugger, 549 F.2d 2, 4 (7th Cir.), cert. denied, 431 U.S. 919, 97 S.Ct. 919, 53 L.Ed.2d 231 (1977), and in United States v. Krohn, 560 F.2d 293, 297 (7th Cir.), cert. denied, 434 U.S. 895, 98 S.Ct. 275, 54 L.Ed.2d 185 (1977). The Eight Circuit in United States v. Malone, 558 F.2d 435, 438 (8th Cir. 1977), articulated its standard this way:
It is established in this Circuit that a defendant is denied effective assistance of counsel if his trial counsel “does not exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances.” United States v. Easter, 539 F.2d 663, 666 (8th Cir. 1976); Pinnell v. Cauthron, 540 F.2d 938, 939 (8th Cir. 1976).
The Ninth Circuit has adopted a “reasonably competent and effective representation” standard similar to that approved in the Fifth and Sixth Circuits. Cooper v. Fitzharris, 586 F.2d 1325, 1328 (9th Cir. 1978) (en banc).
Thus, a majority of the circuits have rejected the farce and mockery test as a minimal standard.
Three circuits — the First, Second, and Tenth — have retained the farce and mockery test. In United States v. Ramirez, 535 F.2d 125, 129-30 (1st Cir. 1976), the First Circuit stated:
Ineffective counsel in this circuit means representation such as to make a mockery, a sham or a farce of the trial. While we have considered adopting a more lenient standard requiring “reasonably competent assistance of counsel”, [citations omitted], . . . appellant’s contentions do not approach a violation of either standard.
Thus, the First Circuit leaves open the possibility of adopting a different standard. See also Dunker v. Vinzant, 505 F.2d 503 (1st Cir. 1974). The Second Circuit has been more certain in its support of the farce and mockery test. In United States v. Yanishefsky, 500 F.2d 1327, 1333 (2d Cir. 1974), the court stated:
The current standard of ineffective assistance of counsel in this circuit is that in order to be of constitutional dimensions the representation [must] be so “woefully inadequate ‘as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.’ ” [citations omitted].
The court explicitly declined to adopt any other standard. 500 F.2d at 1333 n. 2. Similarly, the Second Circuit declined to reconsider its position in Rickenbacker v. Warden, Auburn Correctional Facility, 550 F.2d 62, 66 (2d Cir. 1976), cert. denied, 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85 (1977), and it reaffirmed directly the farce and mockery test in LiPuma v. Commissioner, Department of Corrections, 560 F.2d 84, 90-91 (2d Cir.), cert. denied, 434 U.S. 861, 98 S.Ct. 189, 54 L.Ed.2d 135 (1977). The Tenth Circuit also continues to apply the farce and mockery test. United States v. Larsen, 525 F.2d 444, 449 (10th Cir. 1975), cert. denied, 423 U.S. 1075, 96 S.Ct. 859, 47 L.Ed.2d 85 (1976).
. Judge Leventhal stated:
[A] more powerful showing of inadequacy is necessary to sustain a collateral attack than to warrant an order for new trial either by the District Court or by this court on direct appeal.
126 U.S.App.D.C. at 340, 379 F.2d at 117.
. The context in which the challenge is raised may affect the factual showing that is required to satisfy the standard.
. The quality of the defense in Hammonds presents an interesting contrast to the representation involved here. In Hammonds, the efforts of defense counsel were grossly inadequate. The court delineated an array of failures:
appellant specifies trial counsel’s failure to (1) appear at the arraignment, (2) conduct any voir dire examination of the jury, (3) make any opening statement to the jury, (4) cross-examine two of the four Government witnesses, with only slight cross-examination of the other two witnesses (a total of five questions) and (5) request any jury instructions, including in particular an instruction on lesser-included offenses. In addition to counsel’s alleged deficiencies in the trial itself, appellant refers to counsel’s failure to make any pretrial motions, including a motion for pretrial release, and his declining at the court’s invitation to speak to the question of bond after conviction or to speak on appellant’s behalf at the sentencing.
Counsel for appellant in this court suggests that trial counsel in his closing argument should at least have mentioned the presumption of innocence and the requirement that all essential elements of the offenses be proved beyond a reasonable doubt; that he should have pointed out to the jury the evidence which could lead to a conclusion that appellant lacked the requisite intent and also the absence of evidence establishing that a person was present in the house at the time of appellant’s entry. Appellant’s counsel suggests further that while admitting that appellant could not provide the jury with a complete explanation of his presence in the house, trial counsel could have offered one or more hypotheses of what might have happened *222138 U.S.App.D.C. at 172, 425 F.2d at 603. Here, on the other hand, counsel’s major shortcoming was supposedly his failure to investigate alibis and defenses that he had good reason to believe were untrue.
. The dissent relies heavily on DeCoster I, which it acknowledges “shifted the focus of judicial inquiry away from the prejudice to the defendant . . . and toward the task of articulating basic duties counsel owes his client.” Dissent--of 199 U.S.App.D.C., 267 of 624 F.2d. While conceding that the prece-dential value of DeCoster I is “in question” (dissent n. 62), the dissent contends that it is more relevant than the pre-DeCoster I case because those cases are grounded in the Fifth rather than the Sixth Amendment. Dissent n. 121. The dissent’s distinction is erroneous. Scott, supra at - of 199 U.S.App.D.C., at 222 of 624 F.2d, was explicitly decided under the Sixth rather than the Fifth Amendment. The court stated:
What is involved here is the Sixth Amendment. The Sixth Amendment has overlapping but more stringent standards than the Fifth Amendment as is clear from other contexts. Compare, for example, United States v. Wade, 388 U.S. 218, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967) with Stovall v. Denno, 388 U.S. 293, 87 S.Ct. 1967, 18 L.Ed.2d 1199 (1967). The appropriate standard for ineffective assistance of counsel, set forth in Bruce, supra, is whether gross incompetence blotted out the essence of a substantial defense.
138 U.S.App.D.C. at 340, 427 F.2d at 610.
. The DeCoster I guidelines were as follows:
In General —Counsel should be guided by the American Bar Association Standards for the Defense Function. They represent the legal profession’s own articulation of guidelines for the defense of criminal cases.
Specifically — (1) Counsel should confer with his client without delay and as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable. Counsel should discuss fully potential strategies and tactical choices with his client. (2) Counsel should promptly advise his client of his rights and take all actions necessary to preserve them. Many rights can only be protected by prompt legal action. The Supreme Court has, for example, recognized the attorney’s role in protecting the client’s privilege *223against self-incrimination. Miranda v. Arizona, 384 U.S. 436, [86 S.Ct. 1602, 16 L.Ed.2d 694] (1966), and rights at a line-up, United States v. Wade, 388 U.S. 218, 227, [87 S.Ct. 1926, 18 L.Ed.2d 1149] (1967). Counsel should also be concerned with the accused’s right to be released from custody pending trial, and be prepared, where appropriate, to make motions for a pre-trial psychiatric examination or for the suppression of evidence. (3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. The Supreme Court has noted that the adversary system requires that “all available defenses are raised” so that the government is put to its proof. This means that in most cases a defense attorney, or his agent, should interview not only his own witnesses but also those that the government intends to call, when they are accessible. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. And, of course, the duty to investigate also requires adequate legal research.
159 U.S.App.D.C. at 332-33, 487 F.2d at 1203-04.
. In Marzullo v. Maryland, 561 F.2d 540 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978), the Fourth Circuit recently came to the same conclusion. Coles v. Peyton, 389 F.2d 224 (4th Cir. 1968), had imposed specific requirements for counsel’s preparation of his client’s defense. In adopting a “normal competency” approach, see note 6 supra, the court stated:
While the normal competency standard does not purport to list the things counsel should or should not do, it does not preclude resorting to specifics for ascertaining the “range of competence demanded of attorneys in criminal cases.” . . . We adhere to [the list of duties in Coles ] for it is a definitive, objective description of the competency normally demanded of counsel in certain aspects of their service.
The normal competency standard is necessarily broad and flexible because it is designed to encompass many different factual situations and circumstances. Consequently, its fair and effective administration rests primarily on the district judges. .
In exercising its discretion, a trial court may refer to other sources to determine the normal competency of the bar. Among these are precedent from state and federal courts, state bar canons, the American Bar Association Standards Relating to the Defense Function [App. Draft 1971], and in some instances, expert testimony on the particular conduct at issue. These, of course, do not supplant the test that we have prescribed, but they can aid in objectively ascertaining the range of competency normally expected of attorneys practicing criminal law.
561 F.2d at 544-45.
. For example, DeCoster I stated, inter alia, that “[c]ounsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed.” 159 U.S.App.D.C. at 333, 487 F.2d at 1204. Obviously, what is an “appropriate investigation” varies with each particular case. The range of this responsibility to determine what investigation was necessary varies greatly from case to case; but whatever that duty might be, it must be a reflection of the general duty — to render reasonably competent assistance when acting as a diligent, conscientious advocate — as applied to the particular case.
. Thus, when the accused admits his guilt to his attorney, or when the lawyer knows from other evidence that the evidence of guilt is overwhelming, or that his client is telling an untruthful story, a more limited investigation may be sufficient, whereas in another case it would not.
. These standards are intended as guides for conduct of lawyers and as the basis for disciplinary action, not as criteria for judicial evaluation of the effectiveness of counsel to determine the validity of a conviction; they may or may not be relevant in such judicial evaluation of the effectiveness of counsel, depending upon ail the circumstances.
American Bar Association Project on Standards for Criminal Justice, Standards Relating *224to the Prosecution Function and the Defense Function 11 (Approved Draft, 1971), § 1.1(f).
As to the danger of using the guidelines as mandatory standards to be applied in determining the validity of criminal convictions, note the chambers opinion of Justice Blackmun in Nebraska Press Assn. v. Stuart, 432 U.S. 1327, 96 S.Ct. 251, 46 L.Ed.2d 237 (1975), where the Justice commented on the Nebraska trial court’s adoption of the Nebraska Bar-Press Guidelines for Disclosure and Reporting of Information Relating to Imminent or Pending Criminal Litigation:
Without rehearsing the description of those Guidelines set forth in my prior opinion, it is evident that they constitute a “voluntary code” which was not intended to be mandatory. Indeed, the word “guidelines” itself so indicates. They are merely suggestive and, accordingly, are necessarily vague.
432 U.S. at 1330, 96 S.Ct. at 254. The ABA Standards contain the same caveat.
Consider also the statement of Judge Harold Medina of the Second Circuit, which was made on November 20, 1976 and concerned the use by some judges of the American Bar Association’s guidelines on fair trial and free press: “Judge after judge and court after court took these voluntary guidelines and turned them into a piece of concrete.” New York Times, Nov. 21, 1976, p. 62, c. 3. Courts and lawyers should not make that error with respect to the American Bar Association Standards for the Defense Function referred to in DeCoster I. Mere failure to adhere to such guidelines does not amount to a constitutional violation.
Justice Kaplan of the Supreme Judicial Court of Massachusetts made this point quite well in his oft-quoted opinion in Commonwealth v. Saferian, 366 Mass. 89, 95, 315 N.E.2d 878, 882-83 (1974):
The decided cases try to express or approximate in varying forms of words a general standard for determining whether “assistance of counsel” has been provided an accused person within the meaning of the Sixth Amendment. It has been said that the standard is not met where inadequacy of counsel has turned the proceedings into “a farce and a mockery,” or has created “an apparency instead of the reality of contest and trial.” Some cases call for “counsel reasonably likely to render and rendering reasonably effective assistance.” Still others speak of situations where “the attorney has in effect blotted out the substance of a defense.” But whatever the attempted formulation of a standard in general terms, what is required in the actual process of decision of claims of ineffective assistance of counsel, and what our own decisions have sought to afford, is a discerning examination and appraisal of the specific circumstances of the given case to see whether there has been serious incompetency, inefficiency, or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer— and, if that is found, then, typically, whether it has likely deprived the defendant of an otherwise available, substantial ground of defence, [emphasis added.]
This well states my view that the failure to comply with the duty must be a “substantial violation ” as DeCoster I noted, or gross incompetence with substantial prejudice as set forth in Bruce and Scott. Thus, in Sixth Amendment cases, the defendant must produce evidence showing a direct inference of substantial prejudice to the constitutional right of the accused to the assistance of counsel, or such prejudice to his Sixth Amendment right may be shown indirectly by evidence that he was denied the essence of a fair trial, i. e., prejudice actual or inherent. Thus the mere showing of some inadequacy in complying with any list of duties, i. e., as stated by DeCoster I, does not necessarily satisfy the requirement to show prejudice and thereby shift the burden of proceeding. The inadequacy of counsel must, by proof of “gross incompetence” (Bruce and Scott) in his performance or substantial impact on the result, be shown to constitute a “substantial violation.” See DeCoster I. What is required is a showing that the violation itself, or the violation when added to the consequences, was so prejudicial to defendant’s constitutional right, as to effectively deny him the assistance of counsel that the constitution requires.
. Judge Robinson’s footnote 58 in Pinkney cited four cases: Newsome v. Smyth, 261 F.2d 452 (4th Cir. 1958), cert. denied, 359 U.S. 969, 79 S.Ct. 883, 3 L.Ed.2d 837 (1959); United States v. Frame, 454 F.2d 1136 (9th Cir.), cert. denied, 406 U.S. 925, 92 S.Ct. 1794, 32 L.Ed.2d 126 (1972); United States v. Norman, 402 F.2d 73 (9th Cir.), cert. denied, 397 U.S. 938, 90 S.Ct. 949, 25 L.Ed.2d 119 (1970); and Dansby v. United States, 291 F.Supp. 790 (S.D.N.Y.1968).
While Newsome was based in part on an application of the farce and mockery test, which we reject as other than an expression that substantial unfair prejudice must be shown, that decision clearly reflects the view that the defendant is expected to demonstrate some sort of prejudice:
[Petitioner] attacks the sufficiency of his personally selected counsel, who conducted his defense in the original trial, principally because his counsel failed to have the prisoner take the witness stand and did not specify the grounds of his motion to set aside the verdict. He also contends that he should have been granted additional time, after the verdict, in which to produce additional witnesses in his behalf, but he did not identify the prospective witnesses or suggest the nature of the testimony he hoped to obtain. Clearly these contentions are without merit. . . Obviously, it cannot be said that counsel’s determination as a matter of trial tactics, not to put his client upon the witness stand, under these circumstances, converts the trial into a farce or a mockery of justice. Indeed, it may be the wise, or even the only prudent, course to take. Having had a full trial, the defendant clearly is not entitled to a retrial upon the basis of an unsupported statement that he would like additional time to produce unidentified witnesses whose possible testimony was not disclosed.
261 F.2d at 454 (emphasis added).
Frame flatly states:
Turning to the merits, we hold that the motion for new trial was properly denied. No showing was made of possible prejudice from the alleged confíict. See Davidson v. Cupp, 446 F.2d 642 (9th Cir. 1971), and cases cited.
454 F.2d at 1138 (emphasis added).
Norman states that the facts there alleged for a new trial were insufficient because “that fact would not have undermined the Government’s case in the least.” 402 F.2d at 78. In other words, the defendant failed to sustain his burden of demonstrating prejudice.
Dansby is perhaps the most explicit of all these cases in its statement:
Motions for a new trial are not favored and should be granted only with great caution. The burden of proving the necessity for a new trial is on the petitioner. He must satisfy the court that the jury might have reached a different result without the challenged testimony, or that had the subsequent testimony been presented at the trial it would have “probably” produced a different result.
291 F.Supp. at 794.
. 177 U.S.App.D.C. at 431, 543 F.2d at 916; quoted supra at 17.
. While all the circuits have addressed the question of the standard for the duty owed by counsel to the criminal defendant, see note 6 supra, fewer circuits have addressed the question of the proper procedure for determining when a violation occurs, cf. note 24 infra. Yet the circuits seem to be in accord that the burden to show inadequacy of counsel rests upon the defendant.
For example, the Seventh Circuit, in an opinion by then-Judge Stevens, in Matthews v. United States, 518 F.2d 1245, 1246 (7th Cir. 1975) stated:
Whenever we are asked to consider a charge that counsel has failed to discharge his professional responsibilities, we start with a presumption that he was conscious of his duties to his clients and that he sought conscientiously to discharge those duties. The burden of demonstrating the contrary is on his former clients, [emphasis added.]
Accord, United States v. Sielaff, 542 F.2d 377, 379 (7th Cir. 1976) (“a petitioner must prove ” (emphasis added; see note 6 supra )).
The Third Circuit stated in United States v. Johnson, 531 F.2d 169, 174 (3d Cir. 1976):
The burden is on petitioner to demonstrate that the representation provided him by counsel was constitutionally inadequate. United States v. Hines, 470 F.2d 225, 231 (3d Cir. 1972); United States v. Varga, 449 F.2d 1280, 1281 (3d Cir. 1971).
The Tenth Circuit still follows the farce and mockery test, and that Circuit places the burden on the defendant as well. In United States v. Baca, 451 F.2d 1112, 1114 (10th Cir. 1971), the court stated:
The burden on an appellant to establish a claim of ineffective assistance of counsel is a heavy one; he must show that due to his lawyer’s ineptness the trial was a farce, a sham, or a mockery of justice, [emphasis added.]
The Eighth Circuit stated in Brown v. Swen-son, 487 F.2d 1236, 1240 (8th Cir. 1973) as follows:
It is well established that in order to show a basis for relief on the ground of ineffective assistance of counsel the appellant must show actions of his lawyer which would constitute such conscious conduct as to render pretextual the attorney’s legal obligation to fairly represent the appellant and circumstances which demonstrate that which amounts to a lawyer’s deliberate abdication of his ethical duty to his client, [emphasis added.]
McQueen v. Swenson, 498 F.2d 207, 216 (8th Cir. 1974) agreed in different terms:
We recognize that there is and should be a presumption that counsel is competent, which must be overcome by the petitioner in order for an ineffective assistance of counsel claim to lie. [emphasis added].
The Second Circuit, still follows a farce and mockery standard and clearly places a heavy burden upon the appellant. United States v. Yanishefsky, 500 F.2d 1327, 1334 (2d Cir. 1974):
Upon careful examination of the record reflecting the character of the “resultant proceedings,” . . . and of appellant’s specific allegations, we find that taken individually and collectively, . . . they fail to meet the “stringent standards to be met to show inadequacy of counsel” .
The Fifth Circuit stated in Burston v. Caldwell, 506 F.2d 24, 28 (5th Cir. 1975), quoting Tyler v. Beto, 391 F.2d 993 (5th Cir. 1973), cert. denied, 393 U.S. 1030, 89 S.Ct. 642, 21 L.Ed.2d 574, that the petitioner has a “heavy burden” to establish ineffective assistance of counsel. The Ninth Circuit also appears to be in accord with these decisions, Cooper v. Fitzharris, 586 F.2d 1325, 1331, 1333 (9th Cir. 1978) (en banc), see n. 29, infra.
Thus it appears that our approach is consistent with the predominant view in the other circuits.
. See Estes v. State of Texas, 381 U.S. 532, 542, 85 S.Ct. 1628, 1632-1633, 14 L.Ed.2d 543 (1965) (“in most cases involving claims of due process deprivations we require a showing of identifiable prejudice to the accused.”)
. Accord: Stone v. Powell, 428 U.S. 465, 490, 96 S.Ct. 3037, 3050, 49 L.Ed.2d 1067 (1976) (“the ultimate question of guilt or innocence . . . should be the central concern in a criminal proceeding.”).
. Cf. IX Wigmore on Evidence § 2486, at 274-76 (3d ed. 1940):
It is often said that the burden is upon the party having in form the affirmative allegation. But this is not an invariable test. .
*228It is sometimes said that it is upon the party to whose case the fact is essential
[In other cases] the burden of proving a fact is said to be put on the party who presumably has peculiar means of knowledge enabling him to prove its falsity if it is false.
The truth is that there is not and cannot be any one general solvent for all cases. It is merely a question of policy and fairness based on experience in the different situations. .
There are merely specific rules for specific classes of cases, resting for their ultimate basis upon broad reasons of experience and fairness.
. Decoster is a criminal appeal case, but, as we have held, it is not a denial of due process to place on a defendant the burden of proving a claim that is separate from the elements of the crime charged. United States v. Greene, 160 U.S.App.D.C. 21, 31-32, 489 F.2d 1145, 1155-56 (1973), cert. denied, 419 U.S. 977, 95 S.Ct. 239, 42 L.Ed.2d 190 (1977). As Justice Holmes remarked in Casey v. United States, 276 U.S. 413, 418, 48 S.Ct. 373, 374, 72 L.Ed. 632 (1928):
It is consistent with all the constitutional protections of accused men to throw on them the burden of proving facts peculiarly within their knowledge and hidden from discovery by the Government.
. Access to the facts was complicated by delay since Decoster was tried in 1971, yet the hearing on adequacy of assistance of counsel was not held until February 6, 1974.
. Our refusal to relieve defendant from the burden of proving prejudice, through the device of presuming it, is supported by Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973), a case with strong Sixth Amendment overtones. In Tollett, the Court announced a standard to determine when a criminal defendant who pleads guilty on the advice of counsel is entitled to federal collateral relief on proof of an independent constitutional defect in the prior proceedings (there, the method of selecting the indicting grand jury):
In order to obtain his release on federal habeas under these circumstances, respondent must not only establish the unconstitutional discrimination in selection of grand jurors, he must also establish that his attorney’s advice to plead guilty without having made inquiry into the composition of the grand jury rendered that advice outside the “range of competence demanded of attorneys in criminal cases.”
411 U.S. at 268, 93 S.Ct. at 1608-1609 (emphasis added). The Court also stated:
If a prisoner pleads guilty on the advice of counsel, he must demonstrate that the advice was not “within the range of competence demanded of attorneys in criminal cases,” McMann v. Richardson, [397 U.S. 759], at 771 [, 90 S.Ct. 1441 at 1449, 25 L.Ed.2d 763],
411 U.S. at 266, 93 S.Ct. at 1608 (emphasis added). Unlike Murphy and Agurs which are Fifth Amendment cases, McMann is specifically concerned with Sixth Amendment rights. The Court stated that the competence demanded of attorneys devolves from the Sixth Amendment:
Whether a plea of guilty is unintelligent and therefore vulnerable when motivated by a confession erroneously thought admissible in evidence depends as an initial matter, not on whether a court would retrospectively consider counsel’s advice to be right or wrong, but on whether that advice was within the range of competence demanded of attorneys in criminal cases. On the one hand, uncertainty is inherent in predicting court decisions; but on the other hand defendants facing felony charges are entitled to the effective assistance of competent counsel. Beyond this we think the matter, for the most part, should be left to the good sense and discretion of the trial courts with the admonition that if the right to counsel guaranteed by the Constitution *230is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and that judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.
397 U.S. at 770-71, 90 S.Ct. at 1448-1449 (emphasis added). The reference to McMann in Tollett makes clear that the Supreme Court in some circumstances involving alleged Sixth Amendment violations approves of placing the burden to demonstrate the incompetence of counsel on the defendant. There is no indication in Tollett that the defendant should be relieved of this burden by presuming incompetence of counsel in certain situations except those obvious instances where unfair prejudice to his constitutional right can be directly inferred from the evidence. Thus, Tollett suggests that presumptions of prejudice merely from the acts of omissions of counsel in the conduct of the defense should not be indulged.
While the procedure advocated here is consistent with the Supreme Court’s decisions, it differs in certain respects from that adopted in other circuits. For example, in McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974), writ dismissed, 425 F.Supp. 373 (E.D.Mo.1976), rev’d and remanded, 560 F.2d 959 (8th Cir. 1977), the court discussed the precepts that govern the procedure for determining violations of the right to the adequate assistance of counsel in the Eighth Circuit. In that case Judge Bright stated that the burden is on the defendant to substantiate a claim of inadequate assistance — a proposition with which we agree:
We recognize that there is and should be a presumption that counsel is competent, which must be overcome by the petitioner in order for an ineffective assistance of counsel claim to lie.
498 F.2d at 216. The opinion further stated that evaluation of a habeas corpus petition alleging inadequate assistance of counsel is a two-step process: first, determining whether there has been the violation of a duty owed by a defense attorney to his client; and second, determining whether that failure prejudiced the defense. 498 F.2d at 218. We agree that inadequate assistance analysis has several components: the defendant, unless the violation and the substantial unfair prejudice to his constitutional right are apparent on the face of the record, must demonstrate (1) the existence of a duty owed him by his counsel, and (2) a substantial violation of that duty (3) which results in substantial unfair prejudice to his case and thence to his right. However, Judge Bright appears to be of opinion that a very limited investigation would constitute a constitutional violation, and that determining the existence of prejudice was in effect determining whether the constitutional error was harmless under Chapman. Id. It is our view that the constitutional violation is not made out until the defendant has carried his complete burden; at that point in inadequate assistance cases, the analysis is over and the harmless error doctrine does not apply. Applying the Chapman test to an inadequate assistance case requires that the court deem the denial of adequate assistance “nonsubstantial,” since the Chapman harmless error doctrine, by its own terms, does not apply to “constitutional errors that ‘affect substantial rights’ of a party.” 386 U.S. at 23, 87 S.Ct. at 828.
It is important to recognize, however, the similarities between our approach and that adopted by the Eighth Circuit. Judge Bright’s conclusion in McQueen summarizes that circuit’s procedure as follows:
What we are saying is that, here, the petitioner must shoulder an initial burden of showing the existence of admissible evidence which could have been uncovered by reasonable investigation and which would have proved helpful to the defendant either on cross-examination or in his case-in-chief at the original trial. Once this showing is made, a new trial is warranted unless the court is able to declare a belief that the omission of such evidence was harmless beyond a reasonable doubt.
498 F.2d at 220. What we are saying in this case is that, unless the violation and substantial unfair prejudice is apparent to the court on the record, appellants must shoulder the initial burden and make a prima facie showing of all the elements of the burden we have outlined above. Then the burden of proceeding shifts to the Government to rebut this showing. After these showings, a new trial is not warranted unless the court determines that on the whole record it appears that the defendant has met his burden.
. 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). Gideon was charged with a non-capital felony. His request for court appointed counsel was denied because Florida law only permitted appointment of counsel for indigents in capital cases. The Supreme Court reversed Gideon’s conviction, holding that his constitutional right to the assistance of counsel had been denied.
. 425 U.S. 80, 91, 96 S.Ct. 1330, 1337, 47 L.Ed.2d 592 (1976) (“an order preventing petitioner from consulting his counsel 'about anything’ during a 17-hour overnight recess between his direct- and cross-examination impinged upon his right to the assistance of counsel guaranteed by the Sixth Amendment”).
. 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975). The trial court’s refusal to permit final argument in a non-jury case was held to be a violation of the Sixth Amendment.
. Chief Justice Burger wrote for the Court in Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978):
[Tjhis Court has concluded that the assistance of counsel is among those “constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” Chapman v. California, supra, 386 U.S., at 23, [87 S.Ct. 824, at 827]. Accordingly, when a defendant is deprived of the presence and assistance of his attorney, either throughout the prosecution or during a critical stage in, at least, the prosecution of a capital offense, reversal is automatic. Gideon v. Wainwright, 372 U.S. 335 [83 S.Ct. 792 , 9 L.Ed.2d 799] (1963); Hamilton v. Alabama, 368 U.S. 52 [82 S.Ct. 157, 7 L.Ed.2d 114] (1961); White v. Maryland, 373 U.S. 59 [83 S.Ct. 1050, 10 L.Ed.2d 193] (1963).
See Matthews v. United States, 145 U.S.App. D.C. 323, 332, 449 F.2d 985, 994 (1971) (Leven-thal, J., concurring).
The dissent asserts that the distinction between “actual” and “constructive” denials of the assistance of counsel is a “verbal formalism [that] simply does not correspond to the reality of ineffective assistance.” Dissent, n. 129. It contends that since an accused has a right to the effective, as well as the actual, assistance of counsel, cases involving an allegedly inadequate performance by defense counsel (e. g. failure to cross-examine certain witnesses; failure to make an opening statement) must be treated the same as cases in which the defendant did not have a lawyer or the lawyer was prevented from assisting his client in material ways (e. g. prevented from cross-examining witnesses or making an opening statement). Id. I disagree.
There is an obvious difference between cases in which counsel is present and able to exercise his judgment to use a certain tactic vel non, such as to cross-examine a witness, and cases in which the lawyer is denied the right to exercise that professional judgment which is basic to his representation. The Sixth Amendment right to have the assistance of counsel is primarily the right to have the benefit of a lawyer’s judgment at all stages of a criminal trial. Cf. Mitchell, supra at---of 199 U.S.App. D.C., at 229-230 of 624 F.2d. If that right is denied, then reversal is required without any further independent showing of prejudice. Holloway, supra. In addition the Supreme Court has applied a judicial gloss on the Sixth Amendment, holding that one’s right to the assistance of counsel may be held to be denied when defense counsel is ineffective. McMann v. Richardson, supra, 397 U.S. 771 n. 14, 90 S.Ct. 1441. The dissent contends that because additional prejudice need not be shown in cases where there is an actual denial of counsel, it follows that prejudice is not an element of ineffectiveness cases either. Therefore the dissent argues that the only question is “whether defense counsel acted in the manner of a diligent and competent attorney . . Dissent -of 199 U.S.App.D.C., 287 of 624 F.2d.
But determining whether counsel has been “effective ” raises different questions than an inquiry into whether the assistance of counsel was actually denied. While the language of the Sixth Amendment focuses on whether an accused had “the Assistance of Counsel” at all, the judicial gloss is concerned with whether counsel was “effective” or “ineffective.” And this may involve questions of degree. It is *232plain from a glance at any dictionary that when the Court used the term “ineffective” it was concerned with the impact that counsel’s alleged failure may have on the trial. “Ineffective” means, “not producing the desired effect.” Webster’s New World Dictionary of the American Language (College Edition, 1968). If the Supreme Court had intended the one-dimensional inquiry proposed by the dissent it could have focused solely on competence or performance. Its use of the term “ineffective” is consistent with the view adopted by this and the plurality opinion that prejudice is an element of an accused’s constitutional claim of ineffectiveness. Thus, the distinction that is drawn here between cases involving “actual” and “constructive” denials of the assistance of counsel is valid — it rests on the difference between the right explicitly granted in the Constitution and the different formulation of the right created by a judicial gloss on the Constitutional provision.
. See cases cited supra at-to- of 199 U.S.App.D.C. at 219 to 226 of 624 F.2d. See also the recent decision in Cooper v. Fitzharris, 586 F.2d 1325, 1331 (9th Cir. 1978) (en banc), in which the court stated:
When the claim of ineffective assistance of counsel rests upon specific acts and omissions of counsel at trial . relief will be granted only if it appears that the defendant was prejudiced by counsel’s conduct.
. In a great many criminal cases, the best, if not the only defense, is merely putting the government to its proof and attempting to convince the jury that the charge has not been proved beyond a reasonable doubt.
. Judge Craven, dissenting in Coles v. Peyton, 389 F.2d 224, 230 (1968), hit the nub of the problem squarely:
I think the correct rule is that the burden of showing lack of prejudice falls on the state when, but only when, the petitioner has shown a set of facts that demonstrate prejudice to his defense, inherently or otherwise.
(Emphasis in original). Thus, Judge Craven expressed his agreement with the view that the initial burden to show prejudice falls on the defendant, and the Government has nothing to rebut — and certainly no burden to proceed— until the defendant fulfills this burden. It is significant that the Fourth Circuit in Jackson v. Cox, 435 F.2d 1089, 1093 (1970) declined to apply the rule in Coles, which had presumed the existence of prejudice, to a case with facts very similar to the instant case.
This analysis is consistent with United States v. Pinkney, 177 U.S.App.D.C. 423, 431-32 n. 59, 543 F.2d 908, 916-17 n. 59 (1976), where Judge Robinson stated:
Only if the evidentiary elements of that claim [of inadequate assistance of counsel] appeared in appellant’s motion would he have been entitled to a hearing, and only if evidence offered at a hearing tended to establish the elements would the Government have been summoned to disestablish prejudice.
. Where the conduct of trial counsel is questioned, since his professional standing is directly involved, he should be permitted to participate as a third party in that proceeding on an equal basis with the Government.
. Beasley v. United States, 491 F.2d 687 (6th Cir. 1974). See Glasser v. United States, 315 U.S. 60, 75-76, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. Trial counsel attributed his knowledge to the fact that he had conferences with the prosecutors and that he conducted the preliminary hearing for all three defendants. Tr., Feb. 6, 1974, at 34-35; Tr., Feb. 11, 1974, at 12-14.
. Findings and Conclusions, at 6, 10.
. Tr., Feb. 11, 1974, at 11-14.
. ' Tr., Feb. 11, 1974, at 11, 12-14.
. Tr., Feb. 6, 1974, at 34; Tr., Feb. 11, 1974, at 12-13.
. Tr., Feb. 6, 1974, at 24-25. Appellant prepared a handwritten letter to counsel, which counsel testified was received by him either the day of, one day before, or two days before trial, id. at 24, which was held on November 15-16, 1971. Decoster testified that he wrote the letter during three weeks of September 1971 when he was confined at the jail (Tr. Feb. 6, 1974, 59-60). Later he changed his testimony and stated that he wrote the letter between May and November 1970 (id. 60-61). Thus, the precise date cannot be fixed and both appellant and counsel in the passage of time since the event have a valid excuse for not remembering the precise date. If the letter was written between May and November, 1970, as Decoster testified, his counsel had this admission of his involvement at a very early date. The view that the letter was sent at this time is corroborated by the fact that Decoster made a similar statement in a letter to Judge Waddy dated November 4, 1970. Decoster’s letter to his counsel, Government Exhibit # 2, was as follows:
200. 19th st. S.E.
Wash., D.C.
Dear Sir:
As I tried to call you before, but couldn’t make contact, I decided to write again. Its important I see you, as you are my lawyer and I don’t have ways of fighting my case without you. To get to the point, I want to file assault charges against my accuse [sic] victim. I think I have as much right as he has, at least I’m entitle [sic] to it. If they can charge me with robbery while fighting, I think I have as much right as him, and can do the same. As for Elley [sic] & Taylor my accuse [sic] partners they can testify their role. Elley [sic] came to my aide [sic] when the victim stuck his hand in his pocket & Taylor was just standing on the sidewalk. I hope you can do something about this as soon as you get this letter. Please let me know something. If he can be free so can I. Willie Decoster
Dorm D.C.D.C. 162743
This letter clearly admits Decoster’s participation in the robbery with his “accusejdj partners.” The letter is ample justification for counsel not to look for alibi witnesses.
Appellant also sent a handwritten note to Judge Waddy, which was received by him on November 4, 1970 and filed on November 13, 1970. See Tr., Feb. 6, 1974, at 62. This letter follows without corrections (emphasis added): Honorable Judge Waddy,
I am an Inmate of D.C. Jail who has been incarcerated for five month on a charge that has been change from robbery to arm robbery. The motive for this letter is to request from the court another lawyer because I’ve been misrepresented for five month with my present lawyer . . Also I would like to protect myself and family which consist of nine more younger than I am, which are barely being supported because my father is the only capable one. The rest is trying to get something I miss. Education. Being an *234individual of limited education its only natural for me to protect my innocence and with the transcript from my hearing which I cannot obtain because of illegal counseling. I can prove that I am only guilty of assault by self defence. But the court says I must wait until Jan. 12, 1971 at my trial to prove my innocence which I think is unconstitutional because there is no evidence or witness of robbery. I was accepted by Blackman Development Center on Oct. 12, but my lawyer hadn’t file a motion for bond review. So there was another one of his promise of what he would do. So Your Honor it would be a pleasure if I could speak to you in behave of this case and the way its been handled for the last five month. It could not be explain in writing so I ask this opportunity for a lawyer and justice. I would be to happy if you would consider this letter soon as possible.
Both of these written notes completely contradict the testimony Decoster gave on the stand (Tr., Nov. 16, 1971, at 30-34). The statements in the letter prove his participation in the events constituting the robbery and the falsity of any claim of alibi. His testimony in court is also contradicted by the testimony of all the witnesses, including his accomplice Eley. In the hearing on remand, Decoster reiterated his trial testimony of November 16, 1971 that he was not at the scene (Tr., Feb. 6, 1974, at 65-68). But in so doing, he stated his letter to his counsel was a fabrication (Id. at 71). He also testified on remand, in contradiction to his trial testimony, that he had never seen Eley before he was arrested (Id. at 65), and he claimed that Eley’s testimony at trial was fabricated (Id. at 71).
. He represented Decoster and Taylor, and Eley’s counsel asked no questions.
. Tr., Mar. 3, 1972 (sentencing), at 3-4:
THE COURT: . . the Court has received a long letter from the Defendant, himself, stating that he has learned the error of his ways and that he has found out that he was fooling with the wrong crowd, and that he had been using drugs and he now knows that the use of drugs could lead only to death or jail, neither one of which is acceptable to him.
Mr. DeCoster, do you have something you want to say on your own behalf?
DEFENDANT: I just wanted the Court to know that I was sincere in writing this letter. I feel like I can be — well, I know I can be rehabilitated which I have did on my part in having to come to face the facts. It just seems like, you know — well, really, I left home when I was at an early age and I didn’t have that much confidence and I just hooked up in the wrong places and in the wrong ways. But now I believe that I can — I know that given an opportunity that I can help my family as well as myself. So I ask this Court upon sentencing me to consider this.
. Judge Robinson also takes this position, but unlike my dissenting colleagues, he concludes that the Government has met its burden of proof.
. See n. 10, supra.
. Dissent n. 143.
. 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 590 (1976).
. 435 U.S. 475, 98 S.Ct. 1891, 32 L.Ed.2d 358 (1978).
. 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Dissent - of 199 U.S.App.D.C., 289 of 624 F.2d.
. See page - of 199 U.S.App.D.C., page 231 of 624 F.2d, supra.
. 435 U.S. at 488, 98 S.Ct. at 1181.
. An example of this, from my own experience as United States Attorney, is a case that is unreported (except possibly in its disbarment aspect) which involved a lawyer representing several defendants who entered guilty pleas on his advice. It subsequently appeared that the lawyer had drawn a false indictment against a more affluent brother of one of the defendants in an effort to improve his attorney’s fee by “taking care” of that charge. Upon this showing of his lack of fidelity as a lawyer, and without more, the court set aside the judgments of conviction on the guilty pleas. Thereafter the defendants were tried and convicted and the lawyer was disbarred. In my view, setting aside the original convictions was fully justified because the defendants in that case were denied the assistance of counsel who possessed the fidelity required of all lawyers. Complete fidelity of a lawyer to his client is an essential element of the existence of the relationship. The defendants were thus denied the assistance of such counsel as the Constitution requires. The harm to the defendants resulted from the demonstrated lack of that fundamental good moral character required of all lawyers. This prejudice went directly to their constitutional right and there was no necessity to prove any prejudice or harm to any particular defense that they might have had.
. See Cooper v. Fitzharris, 586 F.2d 1325, 1332 (9th Cir. 1978) (en banc).
. Dissent - of 199 U.S.App.D.C., 289 of 624 F.2d.
. Id. page 199 of U.S.App.D.C., page 291 of 624 F.2d.
. I have already discussed Supreme Court opinions that are inconsistent with the dissent’s position. E. g. United States v. Agurs, 427 U.S. 97, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976), and Murphy v. Florida, 421 U.S. 794, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975) (See page - of 199 U.S.App.D.C., page 226-227 of 624 F.2d, supra); Stone v. Powell, 428 U.S. 465, 96 S.Ct. 3037, 49 L.Ed.2d 1067 (1976) (n. 20, supra); and Tollett v. Henderson, 411 U.S. 258, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973) and McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (n. 24, supra ).
. In his first trial, the defendant was represented by a lawyer from the Legal Aid Society of Allegheny County, which was appointed as his counsel. In his second trial, he was represented by another lawyer from the Legal Aid ^Society.
. Similarly, it conflicts with the thesis of Judge Robinson’s concurring opinion.
The dissent attempts to garner hidden support from Chambers, but nothing therein can be construed as “tacit approval of [a] presumption-of-prejudice rule . . . Dissent n. 140, cf. 399 U.S. at 53-54, 90 S.Ct. 1975. Chambers also specifically rejects arbitrary per se and automatic reversal rules to which the dissent leans. Dissent, page - of 199 U.S. App.D.C., page 293 of 624 F.2d and n. 149.
. Tr. (Feb. 6, 1974) 72.
. Officer Ehler testified: “Mr. Decoster and Mr. Ely had a hold of the subject, the complainant. One of them was yoking him, I didn’t know which one it was at the time, but — and they were removing something from his pockets.” Tr., Preliminary Hearing (June 8, 1970) 5-6 (emphasis added).
. Dissent n. 107.
. Id.
. See pages---of 199 U.S.App.D.C., pages 232-234 of 624 F.2d, supra.
. Dissent page-of 199 U.S.App.D.C., page 286 of 624 F.2d.
The dissent overstates the conflict between the police officer’s testimony and Decoster’s story, Dissent page - of 199 U.S.App.D.C., page 283 of 624 F.2d. Given Decoster’s letters to his judge and attorney any conflict with police testimony was minimal — whether with his accomplices who pled guilty he assaulted Crump either in self defense or to rob him.
The dissent predicates some of its criticism of defense counsel on the ground that he “disbelieved his client and therefore thought that further inquiry would prove fruitless.” Dissent page - of 199 U.S.App.D.C., page 284 of 624 F.2d. However, it was believing Decoster’s statements in his letters that he was present and assaulted Crump in self defense that would reduce the need for an extensive investigation. (Decoster’s statement in his letter to the judge in November, 1970 that he was present at the robbery casts doubt on the dissent’s assertion “that Decoster claimed he was not with them [his co-defendants],” cf. Dissent n. 110). The testimony of the police officer and the guilty pleas of Decoster’s co-defendants also led to the same result. Thus, this case cannot be compared to the case referred to by the dissent at n. 105.
. Id. page--of 199 U.S.App.D.C., page 283 of 624 F.2d.
The dissent speculates about the reasons for what it considers an inadequate number of investigations by appointed defense counsel, n. 80, without reflecting on the number of investigations in cases where defendants hire their own counsel. As to the reasons, these most likely lie in the admitted fact (Dissent, page-of 199 U.S.App.D.C., page 287 of 624 F.2d) that most defendants are guilty and they are the best witnesses to the relevant events.
. See page - of 199 U.S.App.D.C., page 240 of 624 F.2d, supra.
. Tr., Sentencing (March 3, 1972) 2-3.
. Dissent page-of 199 U.S.App.D.C., page 275 of 624 F.2d.
. Id. n. 58.
. Id. page -of 199 U.S.App.D.C., page 295 of 624 F.2d.
. See United States v. Roberts, 199 U.S.App.D.C. -, 600 F.2d 815 (D.C.Cir. 1979) (Statement on Suggestion for Rehearing en banc by MacKinnon, J.), and Tr., Sentencing (March 3, 1972) 3-4.
. Dissent - of 199 U.S.App.D.C., page 297 of 624 F.2d.
. Id. page - of 199 U.S.App.D.C., page 267 of 624 F.2d.
. In my view one error of counsel alleged by the dissent, his decision to waive his opening statement, was good strategy. In light of De-coster’s inability to adhere to a single story, counsel could not be sure what story his client would choose to assert at trial. Under these circumstances, making an opening statement could have caused serious harm to defendant’s case. For instance, had counsel stated that Eley would testify to an alibi, Eley’s testimony that Decoster was present at the scene of the robbery would have caused even greater damage to appellant’s case than actually occurred. Therefore, with the accused changing his story, the position taken by counsel (as the district court found) was an exercise of good judgment. Counsel’s decision to waive his opening statement certainly did not constitute a breach of duty to Decoster.
. The dissent presents a false picture when it implies that indigent defendants in felony cases went unrepresented in most courts until recently. For many years in most courts in the nation, lawyers gave free legal representation to accused felons who could not afford counsel, and the lawyers were completely uncompensated for such time consuming duties. Such service to indigent defendants was considered to be an obligation of all lawyers. Many jurisdictions also provided paid public defenders. The cases that have held that counsel is required in major criminal cases dealt with isolated courts that did not follow the general national practice. E. g., Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1930); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). See Mayer, The Lawyers 163 (1966).
. E. g., United States v. Davis, 183 U.S.App.D.C. 162, 175, 562 F.2d 681, 694 (1977); United States v. Moore, 164 U.S.App.D.C. 319, 505 F.2d 426 (1974), rev’d 423 U.S. 122, 96 S.Ct. 335, 46 L.Ed.2d 333 (1975); United States v. Lee, 165 U.S.App.D.C. 50, 64-69, 506 F.2d 111, 125-30 (1974), cert. denied, 421 U.S. 1002, 95 S.Ct. 2403, 44 L.Ed.2d 670 (1975); United States v. Moore, 158 U.S.App.D.C. 375, 496, 486 F.2d 1139, 1260 (en banc), cert. denied, 414 U.S. 980, 94 S.Ct. 298, 38 L.Ed.2d 224 (1973).
. Washington Star, August 9, 1978.