concurring in the result:
I agree with the majority of my brethren that the conviction in this case should be affirmed. I am unable, however, to subscribe to one link in the chain of reasoning they forge in reaching this result. While I applaud the collective action of the full court in now assuring to those accused of crime a level of legal assistance commensurate with the demands of the Sixth Amendment, I deplore the court’s allocation to the accused of a burden of demonstrating that he was jeopardized by established dereliction of duty on the part of his counsel. Judges Leventhal and MacKinnon, and my colleagues concurring with them, make prejudice to the defense — likely harm in the one instance and actual injury in the other — an indispensable prerequisite to any finding of ineffective assistance, and assign the onus of proof on that score to the defendant.1 In so holding they stray rather widely, I believe, from established principles of pertinent jurisprudence.
These considerations summon this opinion, and dictate the general course it will take. I first summarize in brief fashion the position of the court.2 Next I set forth my understanding of the test imposed by the Sixth Amendment for measuring the sufficiency of the service rendered by counsel for an accused.3 I then elucidate my stand on burden of proof of prejudice in ineffective-assistance cases.4 Lastly, I explain why I conclude that counsel’s performance in this case was constitutionally ineffective but nevertheless was harmless error.5
I. THE COURT’S POSITION
The critical issue we are convened to resolve is the standard appropriately to be utilized in evaluating claims that defense counsel’s performance was constitutionally infirm. Early cases in this circuit shunned the Sixth Amendment as a source of entitlement to effective aid by a member of the bar.6 Relying instead upon the Fifth, those decisions measured counsel’s adequacy by the impact of any deficiency on the fairness of the trial;7 resultantly, there was concern only if execution of the defense function was so abominable that it rendered the trial “a farce and a mockery of justice.”8 As late as Bruce v. United States9 in 1967, this court maintained that while “[t]hese words [were] not to be taken literally,” they nevertheless were “a vivid description of the principle that the accused has a heavy burden in showing requisite *246unfairness.”10 And though it is now said that Bruce implicitly took a Sixth Amendment approach to the problem,11 the Bruce court acknowledged no more than that in “rare and extraordinary” instances “an accused may obtain relief . . . if he shows both 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.”12 That was then the court’s concept of the accused’s constitutional due, at least where the question was presented by collateral attack upon a conviction.13
As Judge Leventhal’s survey of judicially-enunciated formulae for gauging ineffective-assistance claims discloses, every test thus far developed in this and other circuits, however expressed in words, has imposed an initial burden on the defendant to establish that his counsel’s performance at trial was abnormally deficient.14 Every opinion announced today espouses a standard incorporating that thesis centrally as a hurdle that the defendant must first clear. Judge Leventhal, for a plurality of the court, insists upon proof of “serious incompetency, inefficiency or inattention of counsel — behavior of counsel falling measurably below that which might be expected from an ordinary fallible lawyer.”15 Judges Bazelon and MacKinnon would require the defendant to demonstrate, not merely a violation of particular duties, but a “substantial” violation.16 I myself believe that the defendant must point to some substantial deviation from a norm of reasonable competence.17 Despite the terminological differences in the heft of the showing to be made, each formulation emphasizes that counsel’s breach must be serious, and that the defendant bears the onus of making it out.
Perhaps more importantly, the court is agreed that the “gross incompetence” standard of Bruce is dead, and that in my view is how it should be. For nearly four decades the guaranty of competent representation in federal criminal proceedings has had Sixth18 as well as Fifth Amendment19 underpinnings, a verity long calling for a thorough reexamination of this circuit’s criteria for proving and assessing asserted viola*247tions. So, while a defendant must show some substantial dereliction in his counsel’s performance in order to qualify for relief, the level of the representation required is now considerably higher than it once was. On the other hand, a majority of my colleagues retain in some form the other aspect of Bruce — the defendant’s burden of proof vis-a-vis resulting prejudice — as a constitutional element in the adjudication of ineffective-assistance contests. A plurality of the court sets the required showing as likely harm; Judge MacKinnon says it should be actual harm.20 I am unable to perceive any sound justification for saddling the defendant with the additional obligation of establishing that a demonstrated transgression of his right to effective aid by a lawyer either probably or actually influenced the outcome of his case.
II. THE CONSTITUTIONAL TEST
The Sixth Amendment solemnly proclaims that “[i]n all criminal prosecutions, the accused shall enjoy the right . to have the Assistance of Counsel for his defence.” 21 So plain and potent an injunction obviously demands a great deal more than mere appointment and physical presence of a legal representative. Indeed, it has long been recognized that one accused of crime must be afforded, even apart from the Sixth Amendment mandate, a lawyer’s help in substance as well as form. In Powell v. Alabama22 in 1932, the Supreme Court held that, simply as a matter of due process, it was not enough that counsel for a defendant in a state capital prosecution is “assign[ed] at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case.”23 And during the nearly half-century since Powell was decided, it has become increasingly clear that the Sixth Amendment entitlement to “assistance of counsel,” no less than its due process counterpart, is fully the right to effective assistance of counsel.24
The Supreme Court has never undertaken to delineate the content of the “effective aid” of which Powell spoke, or to comprehensively define the standard of counsel-aid constitutionally demanded. That might be taken as good reason for believing that the expression is to have its natural and ordinary meaning; in any event, its connotation can hardly be mistaken. Counsel, to be sure, is not required to win the case, but “effective aid” certainly contemplates that counsel will endeavor to pursue a course reasonably calculated to achieve for the accused the most advantageous resolution of the case possible under the circumstances. Equally certain it is that an accused is due more than a lawyer whose performance barely escapes the label “grossly incompe*248tent” — the standard espoused in Bruce.25 In my view, “effective” assistance is a call for reasonably competent assistance,26 for anything less robs “effective” of far too much of its evident meaning.
That the Supreme Court intends “effective aid” to signify reasonable competence is evident from a number of its decisions. In McMann v. Richardson27 the Court declared that “defendants . . . are entitled to the effective assistance of competent counsel,”28 and that counsel’s advice must be “within the range of competence demanded of attorneys in criminal cases.”29 Moreover, the Court has utilized the term “effective” to zealously guard from outside interference activities of counsel designed to maintain the representation at a wholesome level.30 Defense counsel must be free to decide whether and when to put his client on the witness stand.31 He must be permitted to present a closing summation.32 He must be allowed to confer with his client during an overnight recess.33 It would be incongruous for the Court to protect so scrupulously the right to effective assistance when it is endangered by outside tampering but contemporaneously to ignore all but gross incompetence when substantially deficient service is traced directly to shortfalls in counsel’s ability or effort.
The farce-and-mockery test of effective assistance, to which the gross-incompetence test is first cousin, is definitely on the wane.34 A majority of the federal circuits now have adopted some version of reasonable competence.35 With that I agree, and I *249cannot improve on the DeCoster I formulation: “a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.”36 All of the standard-of-performance rhetoric in today’s opinions seems to come down ultimately to essentially this yardstick for measurement of defense counsel’s performance.
I perceive no policy consideration sufficiently forceful to persuade me that utilization of this standard bodes ill for either the attorney-client relationship or the adversary system. Reasonable competence is the concept traditionally and universally employed as the measure of the lawyer’s civil liability, without apparent untoward effect.37 I cannot see how it could take on a destructive propensity merely because the object is reversal of a conviction rather than an assessment of damages.38 And even assuming that resort to the familiar doctrine of reasonableness upon judicial evaluation of defense counsel’s performance may lead to a modicum of trial-court involvement in defense activities, some policing of counsel’s rendition is both necessary and appropriate.39 As the Supreme Court has admonished,
if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel . . . . [JJudges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their courts.40
Nor do I have any quarrel with the plurality’s position that the criterion for measuring effectiveness of the assistance must preserve counsel’s freedom “to make quick judgment,”41 and that a “shortfall by defense counsel that is perceptible but is modest . . is no basis for judicial interposition.”42 A reasonableness standard is eminently consistent with these concerns, for it is breached only when counsel’s conduct deviates so substantially from an acceptable norm as to merit the label “unreasonable.” Plainly, neither “quick judg*250ments” nor “modest shortfalls,” merely by reason of their character, are sufficiently off the mark to beckon the hand of the courts.43
Lastly, there is the query on the caliber of counsel’s performance in the instant case, and for myself it is enough to give a short answer. Whatever the full range of his constitutional duty to his client,44 it is clear that counsel was obligated to conduct a suitable investigation into the facts of the case and to plot the defensive strategy accordingly.45 For reasons subsequently appearing, I am satisfied that he did not properly discharge that responsibility,46 and on this at least seven members of the court concur.47 Where I part company with the majority is the point at which we come to consider whether it was incumbent upon the client to discharge a burden of demonstrating more.
III. THE BURDEN OF PROOF ON PREJUDICE
The burden of proving unconstitutionality is upon him who asserts it.48 “That burden,” we have said, “extends to production of the facts essential to a determination respecting the constitutional claim.”49 Resultantly, the defendant who would charge ineffective representation “must,” we have added, “set forth evidence upon which the elements of a constitutionally *251deficient performance might properly be found.” 50 We remain divided, however, on the question whether the demonstration incumbent upon the defendant includes a showing that his counsel’s allegedly subpar rendition actually or potentially affected the outcome of the case.
A majority of the court considers detriment to the defendant’s interests an indispensable ingredient of his constitutional claim, and thus a factor for him to prove. For them, the defendant must establish adversity resulting from the deficient conduct, else there is no infringement of the constitutional right. For Judge Leventhal and subscribers to his opinion, the crucial item is likely prejudice,51 for Judge MacKinnon and those who join him, it is actual prejudice.52 Judge MacKinnon goes so far as to insist that overwhelming evidence of guilt relieves defense counsel of the duty to conduct any more than minimal investigation on his client’s behalf.53
I cannot agree with either of these formulations. Careful review of the caselaw convinces me that the burden-of-proof allocation they direct is an unwarranted distortion of the role that prejudice ordinarily plays in constitutional determinations and an impermissible expansion of the limited function of harmless error. In my view, the defendant establishes a constitutional violation when he makes out a substantial breach of duty by his counsel, and it is then up to the Government to demonstrate lack of ensuing prejudice if it can.
A. The General Role of Prejudice in Constitutional Adjudications
In Chapman v. California,54 Supreme Court was asked to decide whether a violation of the Federal Constitution can ever be considered innocuous. The Court’s response, in essence, was that the answer depends upon the nature of the constitutional entitlement at stake. The Court declared that “there are some constitutional rights so basic to a fair trial that their infraction can never be treated as harmless error.” 55 The Court refused, however, “to hold that all federal constitutional errors, regardless of the facts and circumstances, must always be deemed harmful.”56 Rather, said the Court, “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may, consistent with the Federal Constitution, be deemed harmless, not requiring the automatic reversal of the conviction.”57 Thus an absence of prejudice may or may not be a valid judicial concern when a federal constitutional transgression is under investigation.
Chapman also addressed the allocation of burden of proof in those instances where harmlessness is entitled to some role. “Certainly error, constitutional error, in illegally admitting highly prejudicial evidence or comments,” the Court cited as an example, “casts on someone other than the person prejudiced by it a burden to show that it was harmless”; 58 [i]t is for that reason,” the Court noted, “that the original common-law harmless-error rule put the burden on the beneficiary of the error either to prove that there was no injury or to suffer a reversal of his erroneously obtained judgment.” 59 And not only is the burden thus to be assigned but, when the asserted error is of constitutional dimension, it is a burden *252of peculiar weight. The rule appropriate, the Court declared, “requir[es] the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”60 So it was that, for cases wherein harmlessness is a factor at all,61 the bottom line was drawn: “[Bjefore a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.” 62
Chapman did not, of course, speak to the precise question dividing us today — whether the defendant must prove prejudice as an element of his constitutional ineffective-assistance claim. But indubitably implicit in Chapman is the central theme that for a great many constitutional violations — and for perhaps the decided majority — the defendant need not demonstrate harm, either actual or potential, in order to obtain relief. Rather, it may be permissible, but only in some instances, for the Government to attempt to show lack of prejudice, and even then the proof must establish it beyond a reasonable doubt.
Chapman remains the seminal precedent today,63 and obviously it demands two vital inquiries in the case at bar. Is prejudice a legitimate consideration in the assessment of a charge of ineffective assistance of counsel? If so, upon whom rests the burden of proof? Stating the second question somewhat differently, is a showing of threatened or consummated harm from a proven breach of counsel’s duties an essential element of the defendant’s claim, or is a demonstration of actual harmlessness a matter for the Government to undertake?
Many constitutional errors in criminal trials invoke a per se rule. The constitutional violation triggers spontaneous reversal of an ensuing conviction without any exploration into its real or probable effect upon the trial. Just when that will be the case is a question answerable only upon careful analysis of the nature of the right invaded and its capacity to withstand the inherent fallibility of an investigation into prejudice. From a host of diverse considerations that may deserve attention in the analysis, several come immediately to the fore.
One is the constitutional, statutory or judicial recognition the right has been accorded,64 as well as the purpose the right sub-serves.65 Another is the degree of prejudicial propensity of a trespass upon the right.66 Still another is the feasibility of an *253effort to measure the impact of the constitutional violation upon the outcome of the trial.67 Not the least may be an uncompromising policy of deterring repetition of the same unconstitutional conduct in the future.68 A modest sampling of Supreme Court decisions will illustrate the interplay of these and other factors.
Conviction by a judge having personally a direct and substantial interest in convicting necessitates reversal “[n]o matter what the evidence was against” the accused because “he had the right to have an impartial judge” 69 stemming from long-standing judicial realization that a biased tribunal violates fundamental due process.70 Conviction by a jury selected through use of discriminatory techniques demands the same result because “[i]t is in the nature of [that evil] that proof of actual harm, or lack of harm, is virtually impossible to adduce,” and “there is no way to determine what jury would have been selected under a constitutionally valid selection system, or how that jury would have decided the case.”71 Inflammatory publicity massively and pervasively surrounding a trial vitiates it without any special showing of consequent harm when “the totality of circumstances” indicates inherent prejudice.72 Televising courtroom proceedings in a criminal case has been held violative of due process even absent proof of injury because it is innately harmful,73 its adverse effects are too subtle to prove74 and the practice has met widespread condemnation.75
Similarly, admission into evidence of a coerced confession requires reversal as the sanction responsive to offensive police activity, irrespective of evidence of guilt dooming any argument that the admission was actually prejudicial.76 Committing the *254jury to continuous custody by deputy sheriffs who also were the principal prosecution witnesses denies due process “even if it could be assumed that the deputies never did discuss the case directly with any members of the jury,” for “it would be blinking reality not to recognize the extreme prejudice inherent in [the] continual association . .”77 And incorporation of an unconstitutional presumption into the court’s instructions to the jury invalidates the verdict even though it is amply sustained by evidence apart from the presumption; the reason is that “[i]n view of the place of importance that trial by jury has in our Bill of Rights, it is not to be supposed that Congress intended to substitute the belief of appellate judges in the guilt of an accused, however justifiably engendered by the dead record, for ascertainment of guilt by a jury under appropriate judicial guidance, however cumbersome that process may be.”78 And we ourselves have held that denial of the accused’s fundamental statutory, quasi-constitutional right to appear pro se is not redeemed by “the subsequent conclusion that [his] practical position [was not] disadvantaged,”79 for the right “is designed to safeguard the dignity and autonomy of those whose circumstances or activities have thrust them involuntarily into the criminal process.”80
As Chapman made clear, however, not every mistake of constitutional magnitude in a criminal trial leads inexorably to reversal. The majority opinion was careful to point out “that there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may ... be deemed harmless . . . ,”81 The concurring opinion similarly noted that “constitutional rights are not fungible goods,” and that “[t]he differing values which they represent and protect may make a harmless-error rule appropriate for one type of constitutional error and not for another.”82 Indeed, the particular violation dealt with in Chapman83 was held to invoke, not the per se rule of automatic reversal, but the special federal harmless-error rule fashioned in that case for infringements of those constitutional rights that might tolerate it.84 It bears repeating, however, that when harmlessness is permitted any sway at all, a much higher-than-normal standard for af-firmance obtains: “[B]efore a federal constitutional error can be held harmless, the *255court must be able to declare a belief that it was harmless beyond a reasonable doubt.”85
Since Chapman’s day, decisions holding constitutional errors harmless are legion.86 Usually, they have involved transgressions in the presence of the court,87 instances in which assessment of the harm can be made with relative safety.88 As the Supreme Court recently remarked,
[ i ]n 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.89
It is evident, however, that there are out-of-court contexts in which it is entirely feasible to ascertain whether the accused almost assuredly would have been convicted even absent the cited error.90 One such occasion rather clearly is when “the case against [the defendant is] so overwhelming that [the court can] conclude that [the] violation . . . was harmless beyond a reasonable doubt . . ..”91
B. The Role of Prejudice in Right-to-Counsel Cases
Supreme Court decisions on the function of prejudice in right-to-counsel eases reflect essentially the same considerations pertinent in other areas of constitutional error.92 *256Two factors combine to frequently render Chapman’s special harmless-error rule inappropriate. First, entitlement to assistance of counsel is explicitly conferred by the Sixth Amendment,93 with effectiveness of the assistance as its soul.94 Second, harm to the accused’s interests is inherent in many denials of the right95 and the scope of consequent injury all too often is not readily identifiable or probable.96
Thus, where the defendant had no counsel at all at a critical stage of his trial, automatic reversal of his conviction is usually in order.97 That result follows also when counsel became available too late for adequate preparation,98 or when he labored under a conflict of interest precluding completely loyal and effective service to his client.99 In these instances, harm to the accused is well nigh inescapable,100 and intelligent assessment of its range is elusive because the effects of the violation might well permeate the entire trial.101
In some circumstances, however, not even a total lack of counsel necessarily commands these conclusions. Prejudice may not approach the plane of inevitability, or an acceptable judicial appraisal thereof may not be out of reach.102 Examples of resort *257to the harmless-error rule are to be found when the sole consequence of the violation is the admission of evidence tainted by the absence of counsel at the time of its acquisition. An identification of an unrepresented suspect at a pretrial lineup is legally inadmissible,103 as is an in-court identification attributable only to the lineup,104 but the use of such an identification does not necessitate reversal if the Government proves its harmlessness beyond a reasonable doubt.105 The admission into evidence of a voluntary confession taken from an uncounselled arrestee without constitutionally-required warnings,106 or out of the presence of counsel after his appointment,107 may similarly be cured,108 in both instances, if the error is discrete and its adverse effects measurable. Want of counsel at some other pretrial proceedings — preliminary hearing,109 arraignment,110 entry of a not-guilty plea111 — or even during short periods of the trial itself112 may be found to be harmless. In each situation, by reason of the nature of the proceeding or the brevity of counsel’s absence, the range of possible negative consequences is limited113 and possibly amenable to evaluation.'
Impairment of the right to effective assistance of counsel shares the characteristics of other right-to-counsel violations treatable as harmless error. Prejudice may not be invariably a concomitant of counsel’s delinquency, or the presence and extent of injury may be susceptible to an acceptable *258degree of accurate measurement.114 It is worth noting in this connection that in meeting his burden of showing inadequate representation, it is not enough that the defendant merely protest that his counsel was incompetent; he must stake out the shortfalls of which he complains.115 This sort of particularization, in turn, supplies the specific points of reference that facilitate the inquiry on prejudice. In Chambers v. Maroney,116 for example, upon a charge that counsel was inadequate because he was appointed too close to trial to permit preparation, the Supreme Court examined the deficiencies cited and found that in each instance the blunder, if any, was noninjurious.117
I conclude, then, that the right to effective assistance of counsel is amenable to the harmless-error rule. This is not to say, however, that prejudice to the accused, either threatened or consummated, is a sine qua non of the constitutional claim. The defendant must demonstrate a substantial failure by counsel to discharge an important duty, but when he does so I think the claim is sustained although counsel’s mistake may be inconsequential — and thus may not incur reversal — because as matters turn out it doubtless did not influence the end result.
C. Allocation of the Burden of Proof on Prejudice
Proof of actual or potential harm is not normally an element of the showing prerequisite to establishing a violation of a right specifically enumerated in the Constitution.118 To be sure, prejudice is a factor relevant though not indispensable to a determination respecting observance of the Sixth Amendment right to speedy trial;119 certainly, too, “in most cases involving claims of due process deprivations . a showing of identifiable prejudice to the accused” is required.120 But prejudice is *259presumed for many due process denials,121 and so too it generally is for trespasses on the Sixth Amendment right to counsel.122 Sometimes, as has been seen, that presumption is conclusive in the sense that any effort to demonstrate an absence of injury-in-fact is totally foreclosed.123 And even when the presumption is not fully preclu-sive, it permits no more than an attempted showing by the accused’s adversary that the constitutional transgression was harmless beyond a reasonable doubt.124
In no uncertain terms, a positive guaranty of assistance of counsel is enshrined in the Sixth Amendment.125 It is, I reiterate, unmistakably a pledge of the effective assistance of counsel.126 I perceive no reason why that right, like the vast majority of others that the Constitution makes explicit, should not be fully honored upon the usual presumption, as distinguished from proof of prejudice from its denial.
The right we deal with was first articulated by the Supreme Court nearly a half-century ago.127 It has enjoyed full stature in the Court ever since.128 It has been proclaimed with regularity in every federal circuit.129 Though sometimes attributed to the exigencies of due process, its Sixth Amendment origin has long been recognized;130 though originally construed narrowly,131 it has in recent years received in*260creased judicial attention and protection.132 The implication is that once it is realized that the right to effective assistance of counsel is grounded on the express command of the Sixth Amendment as well as encompassed in the generality of the due process concept, no justification for requiring the defendant to prove prejudice is apparent.
Ineffective assistance of counsel has a built-in potential for harm to the client. The right to effective assistance thus shares with most other constitutional guaranties a characteristic which normally obviates any need for proof of prejudice, and sometimes even forecloses consideration of arguments that in the particular situation a denial of the right might have been wholly innocuous.133 Indeed, ineffective assistance is not far removed from total lack of assistance, which frequently calls for automatic reversal.134 And while the harmless-error rule is in vogue when there was counsel — though inadequate counsel135 — the Supreme Court has yet to levy on the defendant a burden of showing that demonstrated incompetence threatened or wrought damage to his cause.136 Nothing in the nature of this fundamental constitutional right suggests to me that we should make such an imposition today.137
In sum, I cannot accept the theory that proof of actual or potential harm to the accused is an element of an ineffective-as-*261sistanee claim. I think the claim is established by a suitable showing that counsel defaulted on an obligation owed the accused,138 and that any asserted lack of injury therefrom is to be treated here just as it normally is in any other instance of curable constitutional error.139 This means, of course, that the burden rests upon the Government to prove absence of harm to the accused, and to prove it beyond a reasonable doubt.140
The Leventhal-MacKinnon approach, I submit, confuses two independent questions commonly arising in ineffective-assistance litigation. One is whether defense counsel measured up to the constitutional standard of reasonably competent representation. This entails scrutiny of the quality of the service rendered. The other is whether proven deficiency in counsel’s performance clearly lacked adverse impact. The task here is simply to determine whether the error could have contributed in any material way to the result reached in the case. Harm is the focal point of the second; it has no bearing whatever on the first. And harmlessness is a doctrine serving only to avoid needless retrials where, owing to the innocuousness of the violation, the outcome would likely be the same.141
The critical distinction between the defendant’s burden to show a constitutional transgression and the Government’s burden to demonstrate lack of ensuing prejudice becomes apparent when we look back three years to our Pinkney decision.142 Following a conviction on two drug charges and before sentencing thereon, the Government filed an “allocution memorandum” containing information purporting to link Pinkney with narcotics trafficking and advocating the maximum penalty. After imposition of less severe though stiff sentences, Pinkney moved the District Court to reconsider them, insisting that his counsel had not discussed the Government’s memorandum with him and reminding that counsel had not disputed its contents at sentencing. The motion was denied and on appeal we declined to upset that ruling.143 We acknowledged the constitutional implications of the asserted breach of duty144 but deemed it unimportant because “[t]he record . . . [did] not support the contention that counsel’s alleged derelictions frustrated [Pinkney’s] opportunity to present his side of the controversy.”145 We pointed to Pinkney’s obligation at this juncture to “set forth evidence upon which the elements of a constitutionally deficient performance might properly be found,”146 and we found that Pinkney’s motion did not survive this requirement for two reasons. In the first place, he did not verify the deficiency complained of.147 Beyond that, after learning of the central allegation of the allocution memorandum, he did not utilize open opportunities to convey to the sentencing judge anything he might have wished to say.148
These omissions are very different from a failure to carry the burden on an issue of prejudice from an established violation.149 *262Although, we did not reach the question of prejudice in Pinkney,150 we took pains to explain the distinction:
Our conclusion . . in no way impinges upon the rule . . . that once a substantial violation of counsel’s duties is shown, the Government’s burden is to demonstrate lack of prejudice therefrom. . In the case before us, we deal only with a procedural prerequisite to a hearing on appellant’s assertion that the representation afforded at sentencing fell below the constitutional norm. The essence of appellant’s contention is that sentencing counsel deprived him of the opportunity to combat allegations of the Government’s allocution memorandum by failing to inform him of the memorandum. . . . Only if the evidentiary elements of that claim 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. But if, on the other hand, appellant had met these preconditions, the Government would then have encountered the burden of proving that counsel’s dereliction did not harm appellant — for example, because the allocution memorandum actually had no effective role in the sentencing process.151
This is the major point of deviation between the position of a majority of the court’s members and mine. In my view, the claimant before us needed only to show that his counsel fell substantially short of the standard of reasonable competence; in theirs, threatened or consummated injury therefrom is an additional required part of the showing. I believe the majority err in their approach and denude the constitutional right to effective assistance of counsel of a great deal of the value it was intended to have.
IV. THE PRESENT CASE
Turning now to Decoster’s arguments that the assistance furnished by his trial counsel was constitutionally ineffective, I find inescapable the conclusion that counsel failed miserably in responding to his obligation to conduct a reasonably competent investigation into the facts of the case. Prior to trial, as Judge Bazelon studiously recounts,152 counsel made no real effort to tap known or likely sources of information, which included codefendants as well as prosecution witnesses. The duty to investigate is vital, and its violation is obviously fraught with danger to the interests of the client.153 Here the investigative responsibility was almost wholly unmet, and I cannot view the dereliction as less than appalling.
I am equally convinced, however, that the record firmly establishes the violation as harmless. Two police officers witnessed the robbery in progress. One chased De-coster from the spot the short distance to the hotel lobby wherein he was apprehended, never losing sight of him for so much as a moment. Within minutes the robbery victim, in the presence of both officers, identified Decoster as one of the culprits, as the officers themselves were later to do. Decoster’s own testimony aside, no basis for impeaching these witnesses on these vital points surfaces on the record either of the preliminary hearing or the trial.154 In sharp contrast, Decoster’s alibi, initially feeble, met disaster after he called *263to the stand one of his codefendants only to hear him testify that he saw Decoster in a fight with the victim at the scene of the crime. This is not to say that every prose-cutorial presentation in which the evidence is so lopsided may fairly be characterized as overwhelming,155 for that appearance may be attributable, at least in part, to counsel’s deficiencies. But considering here the Government’s direct and positive proof, the number of Government witnesses,156 the consistency of their testimony, and the improbability of misinterpretation of the criminal activity or misidentification of Decoster as a participant, I see no reason for supposing that pretrial interviews with these witnesses would have turned up anything but ominous news for the defense.
Counsel’s omission to hunt for alibi witnesses was similarly unhurtful. Aside from the clerk on duty in the hotel lobby when Decoster was taken into custody, there is little to indicate that the prospect of locating any such witnesses was better than highly remote. More importantly, I cannot hypothesize any appreciable probability that the jury’s verdict would have differed had counsel found someone able to testify that Decoster and the victim drank together at a bar shortly before the robbery occurred, or someone who had seen Decoster enter the hotel lobby shortly after the robbery transpired.157 No witness in one or the other place could possibly have established Decoster’s absence from the scene of the offense at the instant it was perpetrated. It is clear, of course, that at that point in time Decoster was somewhere between the bar and the lobby, but the question is whether that somewhere was the site of the crime. The most that can be said is that such a witness might have tended weakly and circumstantially to corroborate Decoster’s claim that he was not there. But it would blink reality to seriously suggest that, in the face of the Government’s powerful eyewitness case, so little would have carried the day.158
I think, then, that in the area of pretrial investigation counsel’s performance was *264substantially deficient and therefore constitutionally ineffective. But I believe, too, that in the circumstances counsel’s inadequacies were harmless beyond a reasonable doubt.159 On that ground, I concur in af-firmance of the conviction.
BAZELON, Circuit Judge, with whom J. SKELLY WRIGHT, Chief Judge, joins, dissenting:
Willie Decoster was denied the effective assistance of counsel guaranteed by the Sixth Amendment because he could not afford to hire a competent and conscientious attorney. His plight is an indictment of our system of criminal justice, which promises “Equal Justice Under Law,” but delivers only “Justice for Those Who Can Afford It.” Though purporting to address the problem of ineffective assistance, the majority’s decision ignores the sordid reality that the kind of slovenly, indifferent representation provided Willie Decoster is uniquely the fate allotted to the poor. Underlying the majority’s antiseptic verbal formulations is a disturbing tolerance for a criminal justice system that consistently provides less protection and less dignity for the indigent. I cannot accept a system that conditions a defendant’s right to a fair trial on his ability to pay for it. Like Justice Black, I believe that “[tjhere can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” 1 The Constitution forbids it. Morality condemns it. I dissent.
I.
The evolution of the right to the Assistance of Counsel reflects a growing awareness of the barriers faced by the indigent defendant seeking a fair trial, and of the challenge these obstacles pose to our ideal of justice without regard to wealth. By any reckoning, the barriers are formidable. The “street crime” that clogs our courts is bred by poverty and discrimination. It is committed by the dispossessed, the disadvantaged and the alienated of our society— those who most need the advice of a trained advocate. In the words of Justice Sutherland:
Even the intelligent and educated layman has small and sometimes no skill in the science of law. ... He requires the guiding hand of counsel at every step in the proceedings against him. If that be true of men of intelligence, how much more true is it of the ignorant and illiterate, or those of feeble intellect.2
And the cruel irony, of course, is that the indigent are the very people who are least able to obtain competent representation. For the most part, “you get what you pay for” in legal representation.3
*265Only recently have we even recognized that the lack of effective counsel inevitably deprives the poor of the right to a fair trial. For a great many years, the shameful truth was that only the rich could obtain counsel, since only the rich could afford to pay counsel. One hundred and forty-one years after the adoption of the Bill of Rights, the Supreme Court first held, in Powell v. Alabama4 that due process requires the appointment of counsel for an indigent defendant in a capital case. Not until Gideon v. Wainwright,5 more than thirty years later, did the Court acknowledge that the “noble ideal” of equal and fair justice could not be realized “if the poor man charged with crime has to face his accusers without a lawyer to assist him.”6 Only then did the Court extend the right to counsel to all state felony prosecutions. And not until 1972, in Argersinger v. Hamlin,7 did the Court affirm the right to counsel in all criminal prosecutions resulting in the deprivation of the accused’s liberty.
The Supreme Court’s effort to-eliminate second-class justice for the poor has not been confined to providing counsel for the indigent.8 But the right to counsel is most essential in assuring fair and equal justice,9 *266for without the conscientious and knowledgeable advice of a trained legal advocate, an accused can secure none of the safeguards of the criminal process intended to protect all defendants. “The [right to] counsel is often a requisite to the very existence of a fair trial.” 10 To the extent that the indigent defendant receives inadequate representation, markedly inferior to that available to a defendant who can afford “competent and conscientious counsel,” a dual system of justice endures.
Inevitably there will be disparities in the quality of representation; some lawyers are simply more able or more conscientious than others. What offends the Constitution, however, is not merely that there are variations in the quality of representation, but that the burden of less effective advocacy falls almost exclusively on a single subclass of society — the poor. In constructing standards for assessing the ineffective assistance of counsel, we must therefore consider not only what measures are necessary to assure a fair trial in the case of any particular defendant. We also must structure our approach to eliminate the gross disparities of representation that make a mockery of our commitment to equal justice. We must institutionalize and enforce standards of attorney competence designed to assure adequate representation for a 11 defendants.
Because my colleagues in the majority divorce their analysis from the economic and social reality underlying the problem of ineffective assistance of counsel, their decision leaves indigent defendants nothing more than an empty promise in place of the Sixth Amendment’s commitment to adequate representation for all defendants, rich and poor. At best, the majority’s approach might help to rectify a few cases of blatant injustice. But their standards do nothing to help raise the quality of representation provided the poor to a level anywhere approaching that of the more affluent. On the contrary, my colleagues condone callous, back-of-the-hand representation by dismissing the basic duties of competent lawyering as “aspirational.” The majority thus provides no incentive or structure to improve the caliber of defense advocacy. By focusing exclusively on the consequences of counsel’s dereliction, their approach encourages an attorney who believes that his client is guilty to “cut corners,” with little risk that he will be held accountable for the inadequacies of his representation. The majority opinions may say “we don’t commend this,” or “we don’t approve of that,” but their bottom line is “Affirmed.’’
In its holding, the majority turns its back on the evolution in this circuit of the standard for evaluating claims of ineffective assistance.11 In the earliest cases, we approached the problem solely from a due process-fundamental fairness viewpoint, requiring a defendant seeking relief to show that the proceedings were a “farce and a mockery of justice.” 12 In Bruce v. United *267States,13 we reconsidered that standard. We explained that the “farce and mockery” requirement was not to be taken literally, but was meant only to demonstrate that in order to obtain relief the accused bears a heavy burden of showing that “there has been gross incompetence of counsel and that this has in effect blotted out the essence of a substantial defense . . . .” 14 Shortly after Bruce, however, we explicitly recognized that the requirement of effective assistance of counsel derives not only from the Due Process Clause, but from the Sixth Amendment itself.15 Consequently, in our original opinion in this case, United States v. DeCoster (DeCoster I),16 this court adopted á standard for direct appeals consistent with the Sixth Amendment’s “more stringent requirements”:17 “a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.”18
DeCoster I represented a major advance in this court’s recognition of the realities of ineffective assistance. In that case, this court shifted the focus of judicial inquiry away from the prejudice to the defendant in any particular case and toward the task of articulating basic duties counsel owes his client. This approach, for the first time, gave content to what previously had been empty verbal formulations. Even more importantly, it recognized that the very lack of effective trial counsel might preclude a defendant from later establishing prejudice. Thus the court concluded that the only way to assure that every defendant receives a fair trial is to promulgate and enforce standards of adequate representation that apply across-the-board. Underlying DeCoster I, therefore, was a commitment to the basic principle that every defendant — rich or poor, innocent or guilty — is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.
II.
Appellant Willie Decoster and two code-fendants, Douglas Eley and Earl Taylor, were arrested for the robbery of Roger Crump on the evening of May 29, 1970. Two police officers on plainclothes patrol observed three men accosting Crump in the parking lot of the Golden Gate Bar. When the officers jumped from their car, the robbers fled and were pursued by the police. Officer Box and the victim found Decoster in the lobby of a nearby hotel, the D.C. Annex, where he was immediately arrested and identified by Crump.19
At his trial on November 15, 1971, appellant testified that on the evening of the crime he had been drinking with Crump at the Golden Gate Bar.20 Decoster claimed that he left Crump at the bar and walked directly to his hotel, where, while standing by the desk waiting to obtain his room key, he was arrested. One of appellant’s alleged *268accomplices, Douglas Eley, was also called as a defense witness but his testimony contradicted Decoster’s in several respects. Most importantly, on direct examination he claimed to have seen appellant and Crump fighting in the parking lot outside the bar at the time of the alleged robbery. Following the trial, appellant was convicted of armed robbery and sentenced to 2-8 years.21
On appeal, this court was troubled by a number of actions taken by Decoster’s court-appointed counsel which, taken together, suggested that Decoster may not have received the effective assistance of counsel. The record showed that on Nov. 4, 1970, several months after appellant’s arrest, the trial judge received a letter from Decoster in which he requested new counsel because his attorney was not providing adequate representation.22 Decoster charged that although he had been accepted for pretrial custody by the Black Man’s Development Center on October 12, defense counsel had not kept his promise to file for bond review.23 Appellant also requested a copy of the transcript of his preliminary hearing, which he had been unable to obtain through his attorney.24
Although Decoster’s counsel finally filed the requested bond review motion on November 9,25 he not only failed to mention that third-party custody had been arranged, but he also filed the motion in the wrong court.26 On November 18, the district court advised counsel of his error and continued the motion to await review by the proper court, as required by law.27 Again, however, counsel delayed filing; not until De*269cember 9, did he file a motion for bond review in the proper court.28
We also noted that events at the beginning of trial raised serious questions about the adequacy of counsel’s pretrial preparation and communication with his client. As the trial was about to start, and after counsel had asserted that he was prepared to proceed, appellant himself stepped forward and asked if the court would subpoena his two codefendants,29 explaining that he “didn’t have a chance” to discuss the matter with his lawyer. Defense counsel then told the court that he had considered the possibility of issuing subpoenas, “except for the fact that we have no address for the other defendants.”30 The prosecutor immediately volunteered that codefendant Eley was in jail with Decoster;31 an address for Taylor was subsequently provided from the court records.32 The court thereupon ordered defense counsel to “take care of the situation.”33
Moments later, after defense counsel again announced that he was ready for trial, the prosecutor informed the court that the Government had not received any response to its alibi-notice demand. Defense Counsel replied that although he might rely on an alibi defense, no response was needed because the Government had not given the twenty days’ notice required by the local rules. The trial judge ordered the defense to provide the names of alibi witnesses anyway, whereupon defense counsel relented and stated, “We will proceed without the alibi witnesses.”34
Defense counsel then informed the court that his client wished to waive jury trial. When asked if he was aware that the trial *270judge already had heard evidence concerning Decoster’s case while presiding over the trial of his codefendants, counsel responded that he was not.35 After attempting unsuccessfully to find another judge who could hear the case at such a late date, the trial judge ruled that he could not hear the case himself but would instead preside over a jury trial. Appellant’s case thereupon proceeded to trial before a jury.
In the midst of all this confusion, Decoster again complained to the court about his attorney’s efforts on his behalf.
THE DEFENDANT: Your Honor, I feel that this case should be continued because this is, I can’t get proper representation that I should be getting and too I think I should have an accurate statement of what happened here when the other two defendants was in court.36
Defense counsel then requested to withdraw from the case “because apparently I have caused some dissatisfaction to the defendant. . .”37 The district judge, however, did not inquire into the basis of the defendant’s complaints. Instead, after receiving counsel’s assurances that he had prepared the case and was ready to go to trial, the court denied the request for a continuance and refused to appoint new counsel.38
*271In view of the foregoing, in our original opinion39 we remanded for supplementary hearings on the adequacy of trial counsel’s representation and granted leave for appellate counsel to move for a new trial. At the hearings on remand,40 the district court elicited further information about trial counsel’s preparation and his explanations for his actions. Counsel admitted that he had not interviewed the robbery victim or either of the police officers.41 He also admitted that he had made no attempt to contact or interview the hotel desk clerk or, for that matter, anyone else at either the D.C. Annex hotel or the Golden Gate bar.42
As for the codefendants, counsel conceded that he had not interviewed Taylor,43 but claimed that he had talked with Eley in the cellblock behind the courtroom on the *272second day of the trial.44 Counsel also admitted that he never obtained a transcript of the preliminary hearing, but stated that since he had conducted most of the cross-examination at that hearing, he saw no need for the transcript.45 Moreover, counsel testified that the U.S. Attorney’s Office usually makes a copy of the transcript available during discovery. Although he did not specifically remember Decoster’s case 46 counsel said he assumed that the government’s copy had been available and that he had read it.47
In attempting to defend his actions, counsel testified that he had not interviewed any witnesses because, until shortly before trial, appellant had never mentioned any possible alibi witnesses. Counsel explained that, to the best of his recollection, Decoster had continuously maintained that he had joined Crump for a drink in the bar, had left him there, and had just returned to his hotel when he was arrested 48 Then, on the eve of trial,49 counsel received a letter in which appellant changed his story, alleged *273that he had fought with Crump but did not rob him, and asserted that his codefendants would support this version of the offense.50 Explaining why he had not interviewed De-coster’s codefendants even after receiving this letter, counsel stated that “it was my feeling at that time that any testimony that might be given by either of these defendants might be contradictory to what I had already heard from the Defendant.”51 Counsel claimed that he did interview Eley after appellant insisted at trial that his codefendants be subpoenaed, and that Eley told him that Decoster was not at the scene of the crime.52 Believing that Eley would say this in court, counsel decided to put him on the stand, but Eley instead testified that he saw Decoster and Crump fighting outside the bar.53
Counsel also was asked at the remand hearing to explain the reasons underlying certain “tactical decisions” he had made. He could not recall why the motion for bond review was filed in the wrong court, or why he failed to mention appellant’s acceptance by the Black Man’s Development Center in the original motion. With respect to the waiver of jury trial, counsel said that although he opposed the idea, he had requested a bench trial at his client’s insistence.54 Finally, counsel stated that he gave no opening statement because he had felt it to be unnecessary, and not because he had no defense theory at the time the trial started. However, counsel could not recall why he had concluded that an opening statement was unnecessary.55
In its findings on remand, the district court isolated seven56 particular acts or *274omissions by defense counsel that were alleged to have deprived appellant of the effective assistance of counsel.57 With respect to three of the allegations — counsel’s waiver of opening statement, his attempt to waive jury trial, and his failure to see that Decoster was given credit for time served as ordered by the sentencing judge 58 — the district court found no ineffective assistance.59 Two other claims — the delay in moving for bond review and the failure to obtain a transcript of the preliminary hearing — were rejected because the court found that the appellant had not been prejudiced by the violations.60 On the final two allegations — counsel’s failure to interview witnesses and his premature announcement that he was ready for trial — the district court’s conclusions can be interpreted as holding either that there was no constitu*275tional violation or simply that no prejudice to appellant was shown.61
III.
The analysis of this case should be guided by the principles established in DeCoster J.62 We there held that upon showing a substantial violation of any of counsel’s specified duties, a defendant establishes that he has been denied effective representation and the burden shifts to the government to demonstrate that the violation did not prejudice the defendant. Thus, DeCoster I prescribed a three-step inquiry for determining whether a claim of ineffective assistance of counsel warrants reversing a conviction:
1) Did counsel violate one of the articulated duties?
2) Was the violation “substantial” ?
3) Has the government established that no prejudice resulted?
The heart of this approach lies in defining ineffective assistance in terms of the quality of counsel’s performance, rather than looking to the effect of counsel’s actions on the outcome of the case. If the Sixth Amendment is to serve a central role in eliminating second-class justice for the poor, then it must proscribe second-class performances by counsel, whatever the consequences in a particular case. Moreover, by focusing on the quality of representation and providing incentives in all cases for counsel to meet or exceed minimum standards, this approach reduces the likelihood that any particular defendant will be prejudiced by counsel’s shortcomings. In this way, courts can safeguard the defendant’s rights to a constitutionally adequate trial without engaging in the inherently difficult task of speculating about the precise effect of each error or omission by an attorney. 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.
A. Violation of Articulated Duties
In DeCoster I, this court attempted to give substantive content to the Sixth Amendment’s mandate by setting forth minimum requirements of competent per*276formance.63 The obligations were described as “duties owed by counsel to client,”64 and thus were not offered as merely “aspirational” guidelines to which attorneys should strive. Indeed, the duties announced in De-Coster I represent the rudiments of competent lawyering guaranteed by the Sixth Amendment to every defendant in a criminal proceeding.65
The duties set forth in DeCoster I were derived from the American Bar Association’s Standards for the Defense Function.66 These ABA Standards summarize the consensus of the practicing Bar on the crucial elements of defense advocacy in our adversary system. Even though these standards were not intended by their drafters to serve “as criteria for judicial evaluation of effectiveness[,]”67 this court noted that “they are certainly relevant guideposts in this largely uncharted area.”68 Naturally, given the complexities of each case and the constant call for professional discretion, it would be a misguided endeavor to engrave in stone any rules for attorney performance.69 Nonetheless, preserving flexibility *277is not incompatible with establishing minimum components of effective assistance, and the ABA Standards give helpful guidance in pursuing both aims.70
In DeCoster I this court was sensitive to these concerns and so did not attempt to prescribe categorical standards of attorney performance. Instead, we took pains to note that the articulated duties were “meant as a starting point for the court to develop, on a case by case basis, clearer guidelines for courts and for lawyers as to the meaning of effective assistance.” 71 We recognized, however, that there were certain tasks, such as the ones we enumerated in our decision, that can never be ignored: conferring with the client without delay and as often as necessary; fully discussing potential strategies and tactical choices; advising the client of his rights and taking all actions necessary to preserve them; and conducting appropriate factual and legal investigations72 I submit that no one can dispute that a reasonably competent lawyer, absent good cause,73 would or should do less. Counsel should proceed in the representation of his client under the guidance of these minimal duties, departing only when the particular needs of his client compel a different course of action.
Prominent among the duties of defense counsel is the obligation to “conduct appropriate investigations, both factual and legal, to determine what matter of defense can be developed.”74 As the Commentary of the ABA Standards stresses, “[I]nvestigation and preparation are the keys to effective representation . . . . It is impossible to overemphasize the importance of appropriate investigation to the effective and fair administration of criminal justice.”75
Investigation is crucial for several reasons. First, the proper functioning of our adversary system demands that both sides prepare and organize their case in advance *278of trial. There can be no justice where one party to the battle has made no effort to arm itself with the pertinent facts and law.76 Second, in a very practical sense, cases are won on the facts. Proper investigation is critical not only in turning up leads and witnesses favorable to the defense, but in allowing counsel to take full advantage of trial tactics such as cross-examination and impeachment of adverse witnesses. And of course, adequate legal investigation is necessary to ensure that all available defenses are raised and that the government is put to its proof.77 “[I]t is axiomatic among trial lawyers and judges that cases are not won in the courtroom but by the long hours of laborious investigation and careful preparation and study of legal points which precede the trial.”78
Moreover, the necessity for exhaustive investigation is not limited to its value in preparation for trial. As a leading manual for defense lawyers emphasizes:
“The facts are counsel’s most important asset not only in arguing before a jury but in every other function counsel performs: seeking advantageous terms of bail, urging the prosecutor to drop or reduce charges, negotiating with him about a plea, urging a favorable sentence recommendation on a probation officer or sentencing disposition on a judge.”79
At a minimum, the duty to investigate requires counsel (or his investigator)80 to *279contact persons whom he has or should have reason to believe were witnesses to the events in question, to seek witnesses in places where he has or should have reason to believe the events occurred, and to conduct these interviews and investigations as promptly as possible, before memories fade or witnesses disappear.81
In the present case, Decoster’s attorney did none of these things. Although the failure to interview a particular witness, by itself, may not rise to the level of inadequate assistance, defense counsel’s investigation and preparation for this case was so perfunctory that it clearly violated his duties to his client82 The prosecution called three witnesses at trial — Roger Crump and Officers Box and Ehler. Despite the cardinal rule that proper investigation begins with interviews of those witnesses whom the government intends to call,83 particularly the arresting and investigating officers,84 defense counsel made no attempt to interview any of these witnesses at any time prior to trial. Nor did he request or obtain a transcript of the preliminary hearing where these witnesses testified.85 Defense counsel did not even contact and interview Decoster’s codefendants, Eley and Taylor, before trial. Nor did he seek or talk to any witnesses at the hotel or bar. In fact, defense counsel made absolutely no effort to discover, contact, or interview a single witness prior to trial.86 Apparently, he was willing to go to trial without having made any real effort to determine what could be elicited by way of defense or to evaluate the strengths and weaknesses of his client’s case.87
*280Moreover, defense counsel’s violations of the duties owed to his client were not limited to an egregious failure to investigate. There are several indications that counsel did not “confer with his client ... as often as necessary to elicit matters of defense, or to ascertain that potential defenses are unavailable.”88 Surely, many of the problems that developed at and just prior to trial could have been eliminated had counsel more fully prepared himself and discussed the case with his client.89 In addition, coun*281sel was derelict in his duty to “promptly advise his client of his rights and take all actions necessary to preserve them.”90 For example, 50 days elapsed from the time appellant was accepted for third-party custody until his attorney filed a proper bond review motion.91 Finally, counsel’s representation of his client at the sentencing hearing was anything but diligent and conscientious. Despite the critical need for effective advocacy at what “may well be the most important part of the entire proceeding,”92 counsel’s total contribution at appellant’s hearing consisted of the following “allocution”:
If the Court please, Counsel is aware that Your Honor has a fully comprehensive a [sic] detailed probation report, and Counsel is aware of the report and would submit based on said report.93
In sum, counsel violated each of the duties enunciated in DeCoster I as the prerequisites of a reasonably competent performance. Appellant’s court-appointed attorney provided the kind of shoddy representation that none of us would tolerate for ourselves — a slovenly, slipshod job, almost totally lacking in preparation, characterized by repeated failures to protect his client’s rights and an obvious indifference to his client’s fate.
B. “Substantial” Violations
Contrary to the intimations of the majority, we do not contend that the slightest departure from a checklist of counsel’s duties establishes ineffectiveness and requires reversal.94 Since counsel’s decisions must be adapted to the complexities of a given case, the proper performance of an attorney’s obligations necessarily entails considerable discretion. Moreover, the human animal is too fallible and the task of defense counsel too complex to expect that every action taken by an attorney will prove correct on hindsight. We have repeatedly cautioned that “[t]his court does not sit to second guess strategic and tactical choices made by [defense] counsel.”95 The Sixth Amendment demands that counsel’s conduct be conscientious, reasonable, and informed by adequate investigation and preparation; it does not demand that counsel’s performance be flawless.
Thus, like the majority, we recognize that counsel’s conduct must be evaluated in the *282context of a particular case and that not every deviation from a perfect, or even average performance makes out a claim of ineffective assistance. Instead, counsel’s violations must be substantial to offend the Sixth Amendment right to effective assistance of counsel.96 The duties articulated in DeCoster I, like the ABA Standards and the obligations prescribed by the Fourth Circuit in Coles v. Peyton,97 describe the minimum components of a competent performance and provide the court with an objective basis for assessing the adequacy of representation. A demonstration that counsel has violated one of these duties compels further inquiry into counsel’s conduct to determine whether, in this specific case, counsel’s departure from the prescribed standards was either “excusable” or “justifiable.” The first of these inquiries recognizes that even the most diligent and conscientious attorney may occasionally falter in fulfilling his responsibility; one minor error in an otherwise commendable performance does not automatically render the representation inadequate.98 The second inquiry is necessary because the “reasonably competent” attorney must tailor his actions to fit the unique circumstances presented by a given case; some particular situations may justify or even mandate a course of action that transgresses the general list of duties, a list that of necessity was designed to govern defense counsel’s conduct in the typical criminal case.
In this case, the frequency and pervasiveness of defense counsel’s omissions and failures certainly belie any notion that these actions were isolated and excusable events. The violation in this case was not simply that counsel failed to interview certain named witnesses. The record reveals that counsel conducted almost no investigation whatsoever in the 17 months preceding trial. Consequently, he began trial unaware of what the prosecution witnesses would say and as a result was unable to refute their stories, was ignorant of the possible defenses and witnesses he might present, and was even unsure of his own client’s version of the events.
Nor do any special circumstances justify counsel’s breach of his obligations. In some cases prudential judgments or tactical considerations may be involved in counsel’s decision about whom to interview.99 In the present case, however, there simply is no *283possible justification for counsel’s near-total lack of investigation and preparation.
Defense counsel’s failure to investigate cannot be justified on the basis that he felt he was familiar enough with the facts of this case to judge for himself that his client was guilty. To begin with, the assertion that defense counsel had sufficient knowledge of what an investigation would reveal is manifestly unsupportable. From all that appears affirmatively in the record, defense counsel’s entire knowledge of the events in question derived solely from two sources: conversations he may have had with his client and his representation of the defendant at the preliminary hearing. As to the former, the record reveals only that appellant and his attorney appeared in court together on six occasions;100 counsel presented no evidence on remand on the extent of his communications with his client. As to the latter, the preliminary hearing occurred 17 months before trial, lasted all of 20 minutes and consisted entirely of the testimony of Officer Ehler, who was not even the arresting officer. Thus, defense counsel’s total knowledge of the case in fact consisted entirely of two conflicting versions of the events — one from a police officer and the other from his own client.101
Perhaps counsel concluded from this limited information that his client had no alibi defense and was guilty, and that therefore counsel was excused from conducting any investigation.102 But the 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.103 I can think of nothing more destructive of the *284adversary system than to excuse inadequate investigation on the grounds that defense counsel — the accused’s only ally in the entire proceedings — disbelieved his client and therefore thought that further inquiry would prove fruitless.104 The Constitution entitles a criminal defendant to a trial in court by a jury of his peers — not to a trial by his court-appointed defense counsel.105
In this case, however, court-appointed counsel failed to interview even the prosecution witnesses, ostensibly because he was already “aware” of the main points of their likely testimony. By virtue of his attendance at the preliminary hearing perhaps counsel obtained a good indication of Officer Ehler’s likely testimony at trial.106 But there can be no justification for counsel’s *285failure to interview either complainant Crump or Officer Box, the critical witnesses to the circumstances surrounding the arrest of appellant.107
As for the codefendants Taylor and Eley, the district court concluded that, “[a]s a result of the information the defendant had given him and his knowledge of the prior ‘guilty’ pleas of the co-defendants, [counsel] considered that their testimony might be contradictory to that of the defendant.”108 My colleagues apparently believe that this finding justifies counsel’s failure to interview the codefendants. But counsel’s speculations and beliefs are no substitutes for facts. No matter how experienced an attorney is, no matter how astute his predictions of the content of the witnesses’ testimony might be, it is inexcusable not to interview such key potential witnesses on the ground that counsel feels that their testimony might contradict what the defendant has told him. Counsel’s reasoned and informed judgment that a witness’ testimony would not aid the defense may justify not calling that witness to testify, but it cannot excuse the failure even to interview him.109
It is true that appellant complicated defense counsel’s task when, sometime before trial, he sent counsel a letter suggesting a new version of what happened on the day of his arrest.110 Again, however, this has no *286bearing on counsel’s failure to investigate.111 By his own account, counsel did not learn of the self-defense theory until the day before or the day of the trial. Appellant’s conflicting stories, therefore, obviously cannot excuse counsel’s inaction during the previous seventeen months. If anything, appellant’s differing accounts should have emphasized the need for an independent investigation to determine which, if either, version was accurate and could be presented as a defense.112 Yet, even after receiving appellant’s letter, counsel was ready to go to trial without having attempted to contact the codefend-ants to learn their version of the events on the night of the robbery.
In the end, the majority’s conclusion that appellant was not denied the effective assistance of counsel rests on their perception that the record contains overwhelming evidence of appellant’s guilt.113 [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 [the] trial.” 114 The logic of their position seems to be as follows: If the accused was probably guilty, then nothing helpful could have been found even through a properly conducted investigation. Thus, any violation of that duty — no matter how egregious — was inconsequential and hence excusable.115
*287Even on its own terms, such reasoning is faulty. It assumes that the value of investigation is measured only by information it yields that will exonerate the defendant. Yet, even if an investigation produces not a scintilla of evidence favorable to the defense — an unlikely hypothesis — appellant still will benefit from a full investigation. One of the essential responsibilities of the defense attorney is to conduct an independent examination of the law and facts so that he can offer his professional evaluation of the strength of the defendant’s case.116 If this full investigation reveals that a plea of guilty is in the defendant’s best interests, then the attorney should so advise his client and explore the possibility of initiating plea discussions with the prosecutor.117 It is no secret that in the majority of criminal prosecutions the accused is in fact guilty, notwithstanding any initial protestations of innocence. It is also no secret that the vast majority of criminal prosecutions culminating in conviction are settled through plea bargaining.118 Indeed, the Supreme Court has recognized that plea bargaining will remain “an essential component of the administration of justice” in this country until the courts’ resources are greatly expanded.119 In many cases, therefore, perhaps the most valuable function that defense counsel can perform is to advise the defendant candidly that a thorough investigation — conducted by his own representative and seeking any glimmer of exonerating evidence — has turned up empty. Only then can the defendant truly evaluate his position and make an informed decision whether to plead guilty or whether to continue to assert his innocence at trial.120
More importantly, the majority’s position confuses the defendant’s burden of showing that counsel’s violation was “substantial” with the government’s burden of proving that the violation was not “prejudicial.” The former entails a forward-looking inquiry into whether defense counsel acted in the manner of a diligent and competent attorney; it asks whether, at the time the events occurred, defense counsel’s violations *288of the duties owed to his client were justifiable. In contrast, the inquiry into “prejudice” requires an after-the-fact determination of whether a violation that was admittedly “substantial,” nevertheless did not produce adverse consequences for the defendant.
All that the accused must show to establish a Sixth Amendment violation is that counsel’s acts or omissions were substantial enough to have deprived him of the effective assistance of counsel in his defense. He need not prove that counsel’s violations were ultimately harmful in affecting the outcome of his trial.121 Quite simply, the inquiry into the adequacy of counsel is distinct from the inquiry into guilt or innocence. The Constitution entitles every defendant to counsel who is “an active advocate in behalf of his client.”122 Where such advocacy is absent, the accused has been denied effective assistance, regardless of his guilt or innocence. The majority opinions nevertheless force the appellant to shoulder the burden of proving that counsel’s acts or omissions actually or likely affected the outcome of the trial.123 To thus condition *289the right to effective assistance of counsel on the defendant’s ability to demonstrate his innocence is to assure that only the constitutional rights of the innocent will be vindicated. Our system of criminal justice does not rest on such a foundation.
Recent Supreme Court decisions affirm that a distinct showing of prejudice is unnecessary to establish a Sixth Amendment violation. In Geders v. United States,124 for example, the defendant had been ordered not to consult with his attorney during the overnight recess between his direct and cross-examination. The Court of Appeals affirmed the conviction on the grounds that the defendant failed to claim any prejudice from his inability to confer with counsel.125 The Supreme Court, however, found that the petitioner had been deprived of his Sixth Amendment right and made no inquiry into whether he had been prejudiced in any way by the trial court’s order. That the defendant had been deprived of the assistance of counsel established the constitutional violation; no showing of prejudice was necessary.126
More recently, in Holloway v. Arkansas,127 the Court found a violation of the Sixth Amendment in the trial court’s failure to appoint separate counsel in the face of the defense attorney’s assertions that conflicting interests might prevent him from providing effective assistance for each of three codefendants. In Holloway, as in Geders, the petitioners’ appeal below had been rejected on the ground that the record demonstrated no actual conflict of interest or prejudice to the defendants. Again, however, the Supreme Court did not inquire into whether the defendants were prejudiced or even into whether trial counsel’s claim of possible conflicting interests was valid. Because the trial court failed, in the face of counsel’s objections, either to appoint separate counsel or to ascertain whether the risk of conflict of interests was too remote to require such appointment, the defendants were deprived of their right to the effective assistance of counsel.128 Upon finding a constitutional violation, the Court then proceeded, in a separate part of its *290opinion, to determine whether reversal of the petitioners’ convictions was required.129
C. Was the Substantial Violation Prejudicial?
Having determined in this case that counsel’s violation of his duty to his client was substantial,130 and that appellant consequently was denied the effective assistance of counsel, we now must consider whether this violation of the Sixth Amendment mandates reversing appellant’s conviction.131 Our inquiry is governed by Chap*291man v. California,132 in which the Supreme Court concluded that “there may be some constitutional errors which in the setting of a particular case are so unimportant and insignificant that they may ... be deemed harmless . . .”133 For these errors, a return to earlier stages in the criminal process would merely be an exercise in futility because the second proceedings would be certain to reach the same result as the first.
Under Chapman the burden in each case rests squarely on the government to prove beyond a reasonable doubt that an error was harmless before the defendant’s conviction can be allowed to stand.134 To place the burden on the defendant would require him to establish the likelihood of his innocence. The presumption of innocence135 that cloaks the accused cannot be stripped by a conviction obtained in something less than a constitutionally adequate trial.
To satisfy its burden of establishing lack of prejudice, it is not enough for the government simply to point to the evidence of guilt adduced at trial, no matter how overwhelming such evidence may be.136 In the first place, “proof of prejudice may well be absent from the record precisely because counsel has been ineffective.” 137 When, as in this case, ineffectiveness is founded upon gross omissions of counsel rather than spe*292cific errors, counsel’s violations so permeate the trial that they necessarily cast doubt on the entire adjudicative process.138 Even where the consequences of counsel’s omissions are less pervasive, it will generally be impossible to know precisely how the proceedings were affected,139 and the resulting prejudice will be “incapable of any sort of measurement.” 140 As the Supreme Court has emphasized, “ ‘The right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in *293nice calculations as to the amount of prejudice resulting from its denial.’ ” 141
Moreover, “prejudice” to the defendant may take many forms. The likelihood of acquittal at trial is not the only touchstone against which the consequence of counsel’s failures is to be measured. The duties of an attorney extend to many areas not necessarily affecting the outcome of trial. As the present case highlights, inadequate investigation and preparation may prejudice the defendant not only at trial but before trial — in counsel’s inability to offer informed, competent advice on whether to plead guilty and whether to demand a jury trial — as well as after trial — in providing ineffective representation at sentencing.142
These principles, in fact, might suggest that a per se rule is appropriate in all cases in which counsel’s representation fails to meet the standards of the Sixth Amendment.143 It may be that the prejudice to the defendant from the denial of effective assistance of counsel is so great, and the likelihood that the government can prove lack of prejudice so small, that reversal should be required whenever a substantial violation of counsel’s duties is shown. Indeed, the Supreme Court has frequently emphasized 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.’ ”144 And it may be that only a rule requiring automatic reversal can provide the deterrent effect necessary to insure that all defendants — innocent or guilty — receive the effective assistance of counsel.145
Nevertheless, there may be cases — however few — in which the reviewing court can isolate specific deficiencies in counsel’s performance and can accurately gauge the consequences of counsel’s acts or omissions.146 *294For example, when a defendant alleges ineffectiveness because his counsel has failed to object to the introduction of arguably inadmissible evidence, the consequences of counsel’s violation may readily be measured. There, the government may be able to prove harmlessness either by showing that a suppression motion would not have succeeded (and the evidence would have been admitted anyway),147 or by proving that there was no “reasonable possibility that the evidence complained of might have contributed to the conviction.”148 Similarly, where counsel violates his duties by failing to interview a particular witness, the government may be able to carry its burden by proving, through proffer of the witness’ testimony, that the witness had nothing relevant to offer even if he had been interviewed. As these examples demonstrate, in appropriate circumstances, reversing the defendant’s conviction may not be required because rectifying counsel’s errors could not possibly benefit the defendant.149
On the record before us in the present case, I would conclude that the government has failed to discharge its burden of proving that no adverse consequences resulted from counsel’s gross violations of his duties to his client. Several important questions on the matter of prejudice remain unanswered, and in the absence of any evidence on these critical issues, I am unable to find that counsel’s violations were “so unimportant and insignificant”150 that reversing appellant’s conviction would be a futile exercise. No inquiry was made for example, on the relationship between counsel’s failure to investigate and Decoster’s decision to go to trial rather than to seek and possibly accept a plea bargain comparable to that of his codefendants.151 Nor was there exploration *295of whether counsel’s failure to offer any allocution at the sentencing hearing had any bearing on the trial judge’s decision to sentence Decoster to a prison term of 2-8 years while his codefendants received only probation.152
In DeCoster I, the court expressly stated that reversal would be required, “unless the government, ‘on which is cast the burden of proof once a violation of these precepts is shown, can establish lack of prejudice thereby.’ ” 153 Thus, any doubts about the harmlessness of counsel’s violations in this case would ordinarily be resolved against the government, and the case would be reversed and remanded for a new trial. Yet, despite our prior remand, it is not clear that the government was ever required to satisfy its burden of proving that the denial of Decoster’s right to the effective assistance of counsel was harmless beyond a reasonable doubt. In ruling on several of appellant’s contentions the district court found that counsel had not violated any duty owed to his client. As to these issues, therefore, the question of the prejudicial effect of counsel’s conduct was never reached. On several other allegations, the district judge appears to have required appellant to demonstrate that he was prejudiced by counsel’s actions in order to establish a constitutional violation. Thus, the government was not put to its proof in establishing harmlessness. Moreover, the initial remand hearing was conducted without benefit of this opinion’s elucidation of the principles set forth in DeCoster I governing questions of ineffective assistance. I therefore would remand the case to allow the government an opportunity to satisfy its burden of proving harmlessness.
IV
Of course, even reversing Deeoster’s conviction would not remedy the pervasive problem of ineffective representation of the indigent.154 The disparity between representation of the poor and of the well-to-do reflects the larger inequality of riches in our affluent society. The imbalance in the quality of legal assistance provided for the indigent and the wealthy is only one of a host of inequities in our society — inequality of educational opportunity, of jobs, of housing, of health care.
It is not the province of the judiciary to remedy all these inequities. We have neither the means nor the competence to redress all of society’s imbalances. We however do have the duty, entrusted to us by the Bill of Rights, to assure that no individual is deprived of liberty by our courts of *296law without a constitutionally adequate trial. We violate this duty when we place our imprimatur of “Equal Justice Under Law” on the incompetent performance of court-appointed counsel in cases like the one before us.155
An appellate court’s role is limited. We can promulgate standards that specify the minimum requirements of the constitutionally mandated competent performance. We can closely scrutinize the records of those cases in which effectiveness is at issue, carefully monitoring trial counsel’s performance to ensure that the attorney’s obligation have been fulfilled.156 When substantial violations are uncovered, we can enforce the Sixth Amendment’s guarantee by vacating the defendant’s conviction and remanding for a new trial in which the effective assistance of counsel will be provided.
The real battle for equal justice, however, must be waged in the trenches of the trial courts. Although reversing criminal convictions can have a significant deterrent effect, an appellate court necessarily depends upon the trial courts to implement the standards it announces. No amount of rhetoric from appellate courts can assure indigent defendants effective representation unless trial judges — and ultimately defense counsel themselves — fulfill their responsibilities. The Supreme Court, too, has recognized the duty of the trial court to fulfill the Sixth Amendment’s promise:
[I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel, and judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases in their court.157
Because, as this case demonstrates, ineffective representation is often rooted in inadequate preparation, a first step that a trial judge can take is to refuse to allow a trial to begin until he is assured that defense counsel has conducted the necessary factual and legal investigation. The simple question, “Is defense ready?” may be insufficient to provide that assurance. Instead, we should consider formalizing the procedure by which the trial judge is informed about the extent of counsel’s preparation.158 Before the trial begins — or before a guilty *297plea is accepted159 — defense counsel could submit an investigative checklist certifying that he has conducted a complete investigation and reviewing the steps he has taken in pretrial preparation, including what records were obtained, which witnesses were interviewed; when the defendant was consulted, and what motions were filed.160 Although a worksheet alone cannot assure that adequate preparation is undertaken, it may reveal gross violations of counsel’s obligations; at a minimum, it should heighten defense counsel’s sensitivity to the need for adequate investigation and should provide a record of counsel’s asserted actions for appeal.
The trial judge’s obligation does not end, however, with a determination that counsel is prepared for trial. Whenever during the course of the trial it appears that defense counsel is not properly fulfilling his obligations, the judge must take appropriate action to prevent the deprivation of the defendant’s constitutional rights. “It is the judge, not counsel, who has the ultimate responsibility for the conduct of a fair and lawful trial.” 161
My colleagues fear that judicial “inquiry and standards . . [may] tear the fabric of [our] adversary system.” 162 But for so very many indigent defendants, the adversary system is already in shreds. Indeed, until judges are willing to take the steps necessary to guarantee the indigent defendant “the reasonably competent assistance of an attorney acting as his diligent conscientious advocate,”163 we will have an adversary system in name only. The adversary system can “provide salutary protection for the rights of the accused”164 only if *298both sides are equally prepared for the courtroom confrontation.165
Some of my colleagues are also concerned that a wide-ranging inquiry into the conduct of defense counsel would transform the role of the trial judge. To emphasize the supposed hazards of such a result, the majority refers to the warning of Judge Prettyman in Mitchell v. United States:166
If the trial judge were required, after a trial has been concluded, to judge the validity of the trial by appraising defense decisions, he would also be under an obligation to protect those rights of an accused as the trial progressed. [Emphasis added]
Yet this is the very role that the Constitution has assigned the trial judge. His is the ultimate responsibility for ensuring that the accused receives a fair trial, with all the attendant safeguards of the Bill of Rights. It is no answer to say that defense counsel will fulfill the function of protecting the accused’s interest; the very essence of the defendant’s complaint is that he has been denied effective assistance of counsel.167 The trial judge simply cannot “stand idly by while the fundamental rights of a criminal defendant are forfeited through the inaction of ill-prepared counsel . . .”168
*299However vigilant the judge, the problem of inadequate representation of the indigent cannot be solved by the courts alone, The bench, bar and public must jointly renew our commitment to equal justice.169 The bar certainly must increase its efforts to monitor the performances of its members and to take appropriate disciplinary action against those attorneys who fail to fulfill their obligations to their clients.170 Addi*300tional funding is needed to increase the number of public defender positions and to provide those organizations with better support services. We must increase the compensation of court-appointed counsel to attract high-quality legal talent and to ensure that those who represent the indigent on a regular basis do not have to sacrifice all economic security to perform this vital role. We must reduce the caseloads of both public defenders and court-appointed counsel to manageable levels. And we must establish procedures to insulate appointed counsel from the pressure to curry favor with the judges who appoint them and fix their compensation.
That the ultimate solution does not lie exclusively within the province of the courts does not justify our ignoring the situation nor our accepting it as immutable. The people have bestowed upon the courts a trust: to ensure that the awesome power of the State is not invoked against anyone charged with a crime unless that individual has been afforded all the rights guaranteed by the Constitution. We fail that trust if we sit by silently while countless indigent defendants continue to be deprived of liberty without the effective assistance of counsel.
J. SKELLY WRIGHT, Chief Judge, joined by BAZELON and SPOTTSWOOD W. ROBINSON, III, Circuit Judges:
I write only to note that while there is no majority opinion of the court, Judges Bazel-on and Robinson and I agree on the two fundamental principles dispositive of this case: (1) The constitutional standard of effective assistance of counsel in a criminal case is the reasonably competent assistance of an attorney acting as the defendant’s diligent, conscientious advocate; and (2) where that standard is shown by the defendant not to have been satisfied, the defendant has been denied his constitutional right to counsel and his conviction must be reversed unless the Government proves beyond a reasonable doubt that the ineffective assistance of counsel was harmless. Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
APPENDIX
Opinion After Remand (Criminal 2002-71).
Before BAZELON, Chief Judge, and WRIGHT and MacKINNON, Circuit Judges.
Opinion for the Court filed by BAZEL-ON, Chief Judge.
Dissenting Opinion filed by MacKIN-NON, Circuit Judge.
BAZELON, Chief Judge:Appellant was convicted of armed robbery and was sentenced to 2-8 years.1 On *301appeal, this court su a sponte noticed several indications that appellant’s sixth amendment right to the effective assistance of counsel had been violated. United States v. DeCoster, 159 U.S.App.D.C. 326, 328-330, 487 F.2d 1197, 1199-1201 (1973). Unwilling to speculate about whether these indications would reveal a failure to provide effective assistance, we remanded the record for supplementation.
Appellant moved in the district court for a new trial. After holding evidentiary hearings and oral argument, the district judge denied the motion. The record has been returned to us, and we find that appellant’s conviction must be reversed because his Sixth Amendment rights were infringed.
I
The facts surrounding the offense are set forth in our first opinion and can be briefly summarized. The victim, Roger Crump, testified that on May 27, 1970, his wallet containing $110 was taken by three men, one of whom held a knife. He further testified that while this was occurring, two persons, who he later learned were plainclothes officers Box and Ehler, jumped out of a car and chased the three men. Because his eyesight was impaired as a result of an automobile accident occurring months after the alleged offense, Crump was unable to identify the appellant at trial. He stated, however, that immediately after the alleged robbery he had identified all three persons who were arrested.
Officers Box and Ehler did identify appellant as one of the persons they had seen robbing the victim. Officer Box also testified that he had chased the appellant into a nearby hotel, the D.C. Annex, where appellant was arrested while standing at the hotel desk. At the hotel, Box stated, Crump had identified appellant. Officer Ehler testified that he had chased, arrested, and searched Earl Taylor and had found a straight razor in his pockets. The wallet and money were never found.
In his own defense, appellant testified that on the afternoon of the crime he had been drinking with Crump at the Golden Gate bar, near the scene of the alleged crime. (Crump admitted having been in the bar but could not recall whether he had seen appellant there.) Appellant claimed that after leaving the bar he had walked to the hotel where he was staying, and was arrested while obtaining his key from the desk clerk. He denied having been with Earl Taylor, and denied even knowing the third alleged robber, Douglas Eley, at the time of the offense. The only other defense witness was Eley; he agreed that appellant and Crump had been together at the bar but stated that he had subsequently seen them fighting outside the bar.
The facts surrounding trial counsel’s efforts require a more detailed statement. The appellant was arraigned in the Court of General Sessions on May 30,1970, and bond was set at $5,000. At that time the lawyer who was to represent appellant at trial was appointed. A preliminary hearing was held on June 8 at which trial counsel represented appellant and did most of the questioning. On the basis of Officer Ehler’s testimony, the three defendants were held for the Grand Jury.
After being indicted, the three defendants were arraigned in United States District Court, where appellant’s counsel’s appointment was reaffirmed. On November 4, appellant wrote to the district judge claiming he was guilty only of “assault by self defence” [sic] and requesting a new lawyer. The only specific charge leveled against counsel was that appellant had been accepted for pretrial custody by the Black Man’s Development Center on October 12, and no bond review motion had been filed. On November 9 counsel filed such a motion in district court, but did not mention the acceptance by Black Man’s. One week later, appellant filed a pro se motion for bond review (which also did not mention Black Man’s). On November 18, 1970, the district judge, as required by law,2 continued the *302motions to await review by the Court of General Sessions, which had originally set the bail. Counsel did not make the motion for review in General Sessions until December 8, and it was denied December 12.
On January 12, 1971, the case was called for trial in district court, but a continuance was granted after the prosecutor indicated Crump was hospitalized following his automobile accident. Two days later, the district judge granted the bond review motion and released appellant to Black Man’s. On January 21, 1971, appellant absconded, and shortly thereafter a bench warrant issued. On June 17, trial of the two codefendants commenced, but in the middle of trial they pleaded guilty.
Appellant was rearrested on September 2, 1971, on unrelated charges for which he was ultimately convicted in Superior Court. Trial was set in this ease for November 15, 1971. On the day of the trial, appellant asked the court to subpoena the two code-fendants, explaining that he “didn’t have a chance” to talk to his lawyer about this. Counsel indicated he had considered the possibility of subpoenas, but did not have the codefendants’ addresses. The prosecutor reported that Eley was in jail (where he had been for six weeks);3 the court read from the court file the address Earl Taylor had listed at the time of his release on personal recognizance eleven months earlier. That address proved out of date.
After counsel announced he was ready for trial, the prosecutor informed the court that the Government had served an alibi-notice demand and received no response. Defense counsel argued that while he might rely on an alibi, no response was necessary because the Government had not given 20 days notice as required by the local rules. The court decided that although the Government had been dilatory, the names of alibi witnesses should be provided nonetheless. Counsel then announced that he would “proceed without the alibi witnesses.” 4
Counsel next informed the court that his client wished to be tried without jury. When asked if he had considered the fact that the trial judge already had listened to some of the evidence in the codefendants’ trial, counsel stated that he thought their pleas had been entered before any evidence was heard. At this point the defendant requested a continuance because he felt, “I can’t get proper representation.” Counsel then requested to withdraw because of his client’s dissatisfaction, but his motion was denied. Defendant was convicted on November 16 and sentenced March 3, 1972. Our opinion issued October 4, 1973.
This much was clear to us on the original appeal and aroused our concern.5 At the hearings on remand, held February 6, 11, and 13, 1974, additional information was elicited concerning counsel’s preparation and his explanation for his actions. Counsel admitted that he had not interviewed the victim, at least one and perhaps both of *303the police officers,6 anyone at the Golden Gate bar or D.C. Annex Hotel,7 or the code-fendant Taylor. Counsel claimed that he had interviewed codefendant Eley on the morning of the second day of trial, and that Eley had maintained that appellant was not present during the robbery.8 Counsel also admitted he had not obtained a transcript of the preliminary hearing, but stated that he had held several conferences with the prosecutors, and surmised, based on their usual practice, that they had made the transcript available to him and that he had read it.9 He also guessed, based on his usual practice, that he had obtained the 251 Form from the police department.
By way of explanation counsel testified that not until shortly before trial had appellant ever mentioned any witnesses, and then just the two codefendants. Counsel further stated that at about the same time he had received a letter from appellant in which appellant admitted he had fought with Crump but denied having robbed him.10 The letter indicated that the code-fendants would support this claim. Counsel testified that this letter — which was consistent with Decoster’s earlier letter to the district judge and with Eley’s trial testimony — was the first time appellant had indicated to counsel that appellant had seen Crump after leaving the bar. Until that time, counsel testified, appellant had maintained, as he testified at trial, that he had gone directly to the hotel.11 Based on the letter, counsel concluded that the testimony of the codefendants “might be devastating” (presumably to the alibi defense). He nevertheless agreed at trial to subpoena the codefendants, and called Eley after interviewing him and establishing that Eley would support appellant’s alibi testimony.12
In denying the new trial request, the district court identified seven acts or omissions by counsel which appellant alleged had deprived him of his right to effective assistance of counsel.13 With respect to two allegations — the delay in moving for bond review and the failure to obtain a transcript of the preliminary hearing — the court found that the defendant had not been prejudiced by the violations. With respect *304to three other allegations — counsel’s attempt to waive jury trial, his waiver of an opening statement, and his failure to see that Lorton Reformatory gave appellant credit for time served as ordered by the sentencing judge — the court found no ineffective assistance. And with respect to the final two allegations — the failure to interview witnesses and counsel’s premature announcement that he was ready — the court made findings of fact and several conclusions of law, reprinted in pertinent part in the margin.14 These conclusions can be read as either holding that there was no constitutional violation and in any event no prejudice, or simply holding that no prejudice was shown.
II
A.
The benchmarks for adjudicating this case are set forth in our original opinion.
In DeCoster I we unanimously held that, at least when counsel’s performance is challenged on a direct appeal, appellants need not show that “the proceedings were a farce and a mockery of justice”15 or that “gross incompetence of counsel has in effect blotted out the essence of a substantial defense.”16 Rather, following a number of other circuits,17 we adopted a more stringent standard: “a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate.” 159 U.S.App.D.C. at 331, 487 F.2d at 1202. Moreover, recognizing that “ ‘reasonably competent assistance’ is only a shorthand label, and not subject to ready application,” we articulated several duties owed by counsel to a client:
In General — Counsel should be guided by the American Bar Association Standards for the Defense Function. .
*305Specifically — (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. . (3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. . . [I]n 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. (Footnotes omitted.)
Id. at 332-33, 487 F.2d at 1203-04. And we stated that these duties are only “a starting point for the court to develop, on a case by case basis, clearer guidelines for courts and for lawyers as to the meaning of effective assistance.” Id. at 332 n.23, 487 F.2d at 1203 n.23.
The requirements set forth in DeCoster I are indisputably the minimal components of “reasonably competent assistance.” Even so, not every violation of one of the duties warrants reversing a conviction for ineffective assistance. Rather, DeCoster I contemplates a three step inquiry: did counsel violate one of his articulated duties; was the violation “substantial”; and was the substantial violation “prejudicial.” Id. at 333, 487 F.2d at 1204.
If all defense attorneys had the dedication, skill and experience of a Clarence Darrow, or if all clients had the sophistication and resources of an Andrew Carnegie, then perhaps the concern embodied in DeCoster I might be unnecessary. This is not to say that such lawyers always will render, or such clients always receive effective assistance of counsel; the task of criminal representation is too difficult and the human animal too fallible. But in a world of Dar-rows and Carnegies, perhaps it would be tolerable for judges to assume a more passive role.
We do not live in that kind of world, however. In the real world of criminal justice, the vast majority of defendants lack the means to afford effective representation and/or the sophistication to vindicate their right to it. The governing principle is clear: “There can be no equal justice where the kind of trial a man gets depends on the amount of money he has.” Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956).
B.
“[Ijnvestigation and preparation,” as the Commentary to the ABA Standards for the Defense Function recognize, “are the keys to effective representation. . . . ”
[I]t is axiomatic among trial lawyers and judges that cases are not won in the courtroom but by the long hours of laborious investigation and careful preparation. . . . The adversary process assumes and its proper functioning demands that both sides have prepared and organized their case in advance of trial.18
Moreover, as the Standards themselves state, the “duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt.” 19
The duty to investigate is not necessarily fulfilled simply by interviewing those persons whom a client names as defense witnesses; 20 it demands that counsel “make an *306independent examination of the facts, circumstances, pleadings and laws involved. ,”21 Minimally, this requires counsel (or his investigator) to contact persons whom he has or should have reason to believe were witnesses to the events in question; to seek witnesses in places in which he has or should have reason to believe the events occurred; and to conduct these interviews and investigations as promptly after his appointment as is possible, before memories fade or witnesses disappear.22
In this case, according to his own admissions — and the district court’s factual findings — neither trial counsel nor an investigator did any of these things. He did not interview codefendant Taylor, and delayed interviewing Eley until the second day of trial.23 He did not interview the complainant or the arresting officers, and he failed to search for witnesses at the hotel or the bar. From all that appears in the record, counsel advised his client on whether to go to trial, and then conducted the trial, without making any real effort to determine what could be elicited by way of defense.
The dissent argues at length that counsel knew all along that the codefendants would say the alibi was false, and that appellant had participated in the crime to which they pleaded guilty. There is nothing in counsel’s testimony at the hearing on remand, however, to support this conclusion. Instead of evidence, the dissent relies on logic, reasoning that counsel’s “decision not to contest the finding of probable cause [at the preliminary hearing] necessarily involved knowledge by defense counsel for Decoster and Taylor (the counsel whose conduct is here in question) that could only have been obtained by prior discussion of the offense with these men and by consultation with Eley or his counsel.” Dissent at - of 199 U.S.App.D.C., at 319 of 624 F.2d. The circularity of this deduction is transparent: by assuming precisely what is at issue here — namely, that counsel rendered reasonably effective assistance — the dissent is able to spin a web of facts, which, if supported by the record, would at least present a more difficult question. As matters stand, there is no basis for assuming that counsel had discussions with the code-*307fendants that he failed to mention at the hearing on remand.
Although counsel conducted no interview, it is possible that special circumstances justify this omission, and that therefore the duty to investigate was not breached. To be sure, there is less need or room for tactical decisions in deciding who not to interview than, for example, in deciding who not to call. But tactical and prudential judgments still may be involved,24 and this court does not sit to “second guess” informed judgments of this sort unless they are manifestly unreasonable.25 In this case, however, we find the explanations proffered by counsel or hypothesized by the government lack plausibility.26
1. Codefendants Taylor and Eley. Three arguments are offered by the Government to support the failure to or delay in interviewing the codefendants:
(a) It is argued that the fact that appellant gave his counsel conflicting accounts of the events — the alibi and the claim of a fight — somehow excuses the lack of prompt interviews. While the existence of these conflicts might be relevant were counsel’s failure to call witnesses at issue, the conflicts can hardly justify the failure to interview. The defendant did not offer the self-defense claim to his counsel until a day or two before trial, long after the interviews should have been conducted. Moreover, even if defendant had contradicted himself earlier, the importance of careful investigation would have been heightened, rather than lessened, since counsel would have needed to determine which defense could or should have been presented.
(b) The Government argues that locating Taylor would have been a “formidable task” after appellant’s flight. But before the flight, from September 1970 to January 1971 when trial was scheduled to begin, Taylor was available in the D.C. Jail. Moreover, one week after appellant was rearrested, and three days before a trial date was set, Taylor was sentenced in district court to probation. It strains credulity to believe that Taylor could not have been found had appellant’s counsel contacted Taylor’s on-and-off employer who had written a letter on Taylor’s behalf prior to sentencing; Taylor’s probation officer, with whom the record reveals Taylor was in regular contact at the time of appellant’s trial; or perhaps even Taylor’s lawyer.
(c) The district court found that not until the day of trial had appellant suggested to his counsel that the codefendants might be helpful to the defense. But counsel knew that the codefendants were alleged to have participated in a robbery with his client, and knew that his client claimed not to have been there. Surely counsel should have realized that the co-defendants were at least potential witnesses in support of the alibi, and they should have been interviewed.
*3082. The Government witnesses. The district court found that counsel was justified in not interviewing Officer Ehler because counsel had examined him at the preliminary hearing. We agree. But with respect to Officer Box, the district court noted only that his testimony was “generally consistent with that of Officer Ehler,” and with respect to the victim, Crump, that “[tjhere was nothing incredible about [hisj testimony.” Whatever relevance the substance of their trial testimony may have to the question of the effect of the failure to interview, it can hardly provide a tactical justification for not conducting pretrial interviews.27 The government contends that after appellant’s flight, interviewing Crump was “impracticable,” since he was living in Georgia. But again, the Government ignores the failure to interview for the several months between the time of the offense and the accident, even though the very occurrence of the accident demonstrates the importance of prompt interviews.
3. The desk clerk at the hotel. The district court found no reason to seek out the desk clerk because “[tjhere was no dispute as to when the defendant entered the D.C. Annex or when and where he was arrested.” However, the trial record reveals that appellant claimed he had walked from the bar to the hotel and into the lobby, while Office Box testified that he had chased appellant. Surely the desk clerk should have been contacted to ascertain whether he saw the appellant enter the hotel or remembered anything relevant about appellant’s demeanor while at the desk.
4. Other witnesses. No other potential witnesses were identified by name or job position. Nevertheless, the record reveals two potentially fruitful places for investigation that were not tapped: the hotel lobby and the bar. For the same reasons that the hotel clerk’s recollections might have been useful, i. e., to resolve the dispute as to how appellant reached the hotel, guests or residents who had been in the lobby at the time should have been interviewed. At the very least, the clerk should have been asked for the names of persons he remembered having seen in the lobby. Similarly, appellant testified that persons unknown to him had been in the bar at the same time he was there. Such witnesses could have been helpful if they could have corroborated appellant’s claim that he and Crump had been drinking together, or, perhaps, if they had overheard conversation, or seen Crump and appellant leave. Counsel at least could have questioned employees of the bar to see if they had useful information or could supply the names of customers who were at the bar at the time.
In sum, we hold that counsel’s failure to interview Taylor, Crump, Officer Box, or the desk clerk; his delay in interviewing Eley; and his failure to seek out witnesses from the hotel or the bar were not supported by tactical considerations, informed or otherwise, and violated the duty to conduct a factual investigation.28 Of course, counsel was “under no duty to assist in the fabrication of a defense,” as the district court wisely noted. But counsel was under a duty to investigate whether there was a non-fabricated defense that could be presented. The dissent may well be correct that there were no such defenses available in this case, although it may be significant that the two codefendants pled guilty only to robbery and not armed robbery. But *309even if the dissent is correct, investigation is still necessary not only so that defendants receive informed advice from their counsel and make informed decisions as to whether to go to trial, but also so that lawyers do not unwittingly present perjured testimony, as apparently occurred in this case. Thus, while counsel may have been fully justified in not calling the codefendants or any other witnesses, his failure to interview them violated the duty to investigate.
C.
We come then to the question of whether the violation here was “substantial.” In DeCoster I we had no occasion to define the “substantiality” requirement. Recently, however, in United States v. Pinkney, 177 U.S.App.D.C. 423, 543 F.2d 908 (1976), we made clear that for a violation to be substantial it must be “consequential,” that is, it in some way must have impaired the defense.29 Pinkney also makes clear that the burden is on the defendant to prove such adverse consequences, since such consequences do not inhere in every violation of the DeCoster precepts.30
In certain circumstances, however, the acts or omissions of counsel are so likely to have impaired the defense, and yet this consequence would be so difficult to prove, that, in accordance with well-established ev-identiary principles,31 such an impairment can be presumed.32 For example, there is persuasive authority for indulging such a presumption when counsel is not appointed until the eve of trial,33 or when counsel has a clear conflict of interest.34 Only recently, a unanimous Supreme Court held that a petitioner whose right to effective assistance of counsel was infringed by an order issued during trial barring him from consulting with his attorney overnight between his direct and cross-examination need not demonstrate, or even claim, prejudice.35 To use the language of the dissent in the present case, these are all instances in which there is “inherent prejudice” in the nature of the violations. Dissent at-of 199 U.S.App.D.C., at 335 of 624 F.2d.
*310This case falls squarely within the same category. The violation here — a total failure to conduct factual investigations— makes this case analogous to ones in which counsel is not appointed until immediately before trial. Investigation is so central to the defense function that, except in the most extraordinary circumstances, a gross violation of the duty to investigate will adversely affect a defendant’s rights. Furthermore, the violation in this case was not simply that counsel failed to interview certain named witnesses.36 Counsel here also failed to promptly determine whether there were additional witnesses to the alleged robbery or to appellant’s alleged flight who could have aided the defense. Appellant cannot be expected to show that such an effort would have been fruitful since the very reason such an effort was necessary was that appellant did not know the identity of any such witnesses.37
Finally, we note that even if an investigation would not have produced a scintilla of evidence favorable to the defense — a somewhat unlikely hypothesis — appellant still would have benefited from a full investigation. Had appellant been told by his lawyer that there was no evidence available to support the defense theory, appellant would have been able to make a better informed decision whether to go to trial, or whether to seek a plea agreement comparable to his two codefendants’. Thus, given both the magnitude of counsel’s violation and its probable effect,38 we conclude that appellant’s constitutional right to effective assistance of counsel was violated.
D.
The remaining question is whether a new trial is required. DeCoster I teaches that once appellant discharges his burden of showing a substantial violation of one of counsel’s duties, the burden shifts to the Government to establish that the constitutional violation was harmless. 159 U.S.App. D.C. at 333, 487 F.2d at 1204.39 DeCoster I *311does not address the question of the weight of the burden the Government must bear. But in imposing a burden on the Government, we did cite, id. at 333 n.34, 487 F.2d at 1204 n.34, Chapman v. California, 386 U.S. 18, 87 S.Ct. 824,17 L.Ed.2d 705 (1967). Chapman holds that if a defendant’s constitutional rights were violated, his conviction must be reversed unless the Government “prove[s] beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.” Id. at 24, 87 S.Ct. at 828. This court has previously followed Chapman in determining harmlessness vel non in the ineffectiveness context.40 If anything, Chapman should apply with greater force in ineffectiveness cases, since a finding that a defendant’s sixth amendment right to effective assistance was infringed necessarily casts doubt on the entire adjudicative process. Indeed there is even authority for holding that such violations can never be harmless, on the theory that “[t]he right to have the assistance of counsel is too fundamental and absolute to allow courts to indulge in nice calculations as to the amount of prejudice arising from its denial.” 41 Although we have rejected that per se approach, we hold that harmlessness must be established beyond a reasonable doubt.
When a defendant, as part of his proof of a constitutional violation, demonstrates the consequences that resulted from counsel’s acts or omissions, the Government’s burden will be to prove that the injury complained of did not affect the outcome of the proceedings in the trial court. Ordinarily, this will not be an onerous burden: by comparing what the defendant shows should have been produced with the evidence that was adduced at trial, it should be readily apparent whether a reasonable doubt exists as to the effect of the constitutional violation on the outcome.42 The burden is placed on the Government simply to emphasize that when such a reasonable doubt exists, a new trial is required.
When, however, the defendant is excused from showing adverse consequences, see pp. ---of 199 U.S.App.D.C., pp. 309-310 of 624 F.2d supra, allocation of the burden with respect to harmlessness often will be dispositive. In such cases, by hypothesis, it is impossible to know precisely how the defendant was affected by counsel’s failures; consequently, it will be most difficult for a defendant to prove prejudice or for the Government to negate it. To avoid effectively penalizing a defendant for his counsel’s failures, DeCoster I requires that in such cases the burden be placed on the Government.
In the instant case, the application of these principles is clear. The Government made no effort to discharge its burden, either by refuting the presumption that adverse consequences resulted from the gross violation of the duty to investigate, or by showing that whatever the consequences they could not have affected the result.43 *312Accordingly, appellant’s conviction must be reversed and the case remanded.44
Ill
More than six years have elapsed since the alleged offense was committed, and more than four years since defendant was convicted. Of this time, at most only ten months — the time from the date appellant absconded until his retrial — are wholly attributable to the appellant, and during some of that time the complainant was also unavailable. The remainder of the time was consumed by the deliberate workings of the system in the trial court and in this court.
We have recently observed that “delays on appeal are not insulated from the due process clause of the Fifth Amendment.”45 Of course, due process does not require that “careful study” be sacrificed; “the essential ingredient is orderly expedition and not mere speed.”46 Some delay must be anticipated in precedent-setting cases of this sort, especially since the effective assistance question was not even briefed on the first appeal. Moreover, the price of our insistence on proof concerning counsel’s preparation is additional delay while evidence de hors the record is presented.47
But as we also recently noted, “it would be disingenuous to suggest that the entire time during which a case is under advisement” — or, we might add, on remand — “is consumed in unraveling complex issues. This court, like the District Court, is not free from the problem of calendar backlog.” 48 We daresay that “careful study” in this case did not require 18 months between sentencing and our first opinion, another 18 months until the district court’s opinion on remand was filed, or more than a year for this opinion to issue.
Because appellant has already served most, if not all, of his sentence, the Government may elect not to retry appellant. For this reason, we do not decide whether due *313process would bar a second trial.49 That question must await the district court’s determination in the first instance, should such a trial be sought.
Reversed.
. Leventhal Opinion (Op.), 199 U.S.App.D.C. at -, 624 F.2d at 199; MacKinnon Op., 199 U.S.App.D.C. at-, 624 F.2d at 217.
. See Part I infra.
. See Part II infra.
. See Part III infra.
. See Part IV infra.
. This trend commenced three decades ago in Diggs v. Welch, 80 U.S.App.D.C. 5, 6-7, 148 F.2d 667, 668-669, cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945). For other cases of similar bent, see note 8 infra.
. See Diggs v. Welch, supra note 6, 80 U.S. App.D.C. at 7, 148 F.2d at 669; Jones v. Huff, 80 U.S.App.D.C. 254, 255, 152 F.2d 14, 15 (1945).
. Diggs v. Welch, supra note 6, 80 U.S.App.D.C. at 7, 148 F.2d at 669. See United States v. Hammonds, 138 U.S.App.D.C. 166, 169-170, 425 F.2d 597, 600-601 (1970); Harried v. United States, 128 U.S.App.D.C. 330, 333-334, 389 F.2d 281, 284-285 (1967); Mitchell v. United States, 104 U.S.App.D.C. 57, 63, 259 F.2d 787, 793, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958); Jones v. Huff, supra note 7, 80 U.S.App.D.C. at 255, 152 F.2d at 15.
. 126 U.S.App.D.C. 336, 379 F.2d 113 (1967).
. Id. at 339, 379 F.2d at 116.
. Leventhal Op., 199 U.S.App.D.C. at -, 624 F.2d at 204.
. United States v. Bruce, supra note 9, 126 U.S.App.D.C. at 339-340, 379 F.2d at 116-117 (footnote omitted).
. Unlike the case before us, Bruce was an appeal from denial of a motion pursuant to 28 U.S.C. § 2255 (1976). The Bruce court observed that “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,” but felt that “[i]t would not be fruitful to attempt further delineation of the applicable standard by reference to generalities . . .” Id. at 340, 379 F.2d at 117 (footnotes omitted).
. See Leventhal Op., 199 U.S.App^D.C. at-, 624 F.2d at 203-206.
. Leventhal Op., 199 U.S.App.D.C. at-, 624 F.2d at 206-207.
. Bazelon Op., 199 U.S.App.D.C. at-, 624 F.2d at 264; MacKinnon Op., 199 U.S.App.D.C. at-, 624 F.2d at 217.
. Part III infra.
. Holloway v. Arkansas, 435 U.S. 475, 481-484, 490, 98 S.Ct. 1173, 1177-1179, 1182, 55 L.Ed.2d 426, 433-434, 438 (1978) (appointment of single counsel for three defendants, without investigation of counsel’s representations that a conflict of interest existed, violates Sixth Amendment right to effective assistance); McMann v. Richardson, 397 U.S. 759, 770-771, 90 S.Ct. 1441, 1448-1449, 25 L.Ed.2d 763, 773 (1970) (“defendants facing felony charges are entitled to the effective assistance of competent counsel. . [I]f the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel,” citing Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963)); Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 468, 86 L.Ed. 680, 702 (1942) (defendant has right to “effective assistance of counsel, guaranteed by the Sixth Amendment”); United States v. Hurt, 177 U.S. App.D.C. 15, 18, 543 F.2d 162, 165 (1976); Scott v. United States, 138 U.S.App.D.C. 339, 340, 427 F.2d 609, 610 (1970).
. E. g„ Powell v. Alabama, 287 U.S. 45, 68-72, 53 S.Ct. 55, 63-65, 77 L.Ed. 158, 170-172 (1932) (right to effective assistance of counsel in state trials guaranteed by the Due Process Clause of the Fourteenth Amendment).
. Leventhal Op., 199 U.S.App.D.C. at-, 624 F.2d at 206; MacKinnon Op., 199 U.S.App.D.C. at-, 624 F.2d at 213.
. United States Const, amend. VI.
. Supra note 19.
. 287 U.S. at 71, 53 S.Ct. at 65, 77 L.Ed. at 172.
. Holloway v. Arkansas, supra note 18, 435 U.S. at 490, 98 S.Ct. at 1182, 55 L.Ed.2d at 438 (“[t]he mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee when the advocate’s conflicting obligations have effectively sealed his lips on crucial matters”); Geders v. United States, 425 U.S. 80, 88-91, 96 S.Ct. 1330, 1335-1337, 47 L.Ed.2d 592, 599-601 (1976) (Sixth Amendment confers right to assistance and guidance of counsel; defendant cannot constitutionally be prevented from consulting with his attorney during an overnight recess); McMann v. Richardson, supra note 18, 397 U.S. at 770-771, 90 S.Ct. at 1448-1449, 25 L.Ed.2d at 773 (defendants have a right to effective assistance of competent counsel); Glasser v. United States, supra note 18, 315 U.S. at 75-76, 62 S.Ct. at 467^68, 86 L.Ed. at 702 (under Sixth Amendment, defendant is entitled to “the benefit of the undivided assistance of counsel of his own choice. . . Irrespective of any conflict of interest, the additional burden of representing another party may conceivably impair counsel’s effectiveness”). See also Avery v. Alabama, 308 U.S. 444, 446, 60 S.Ct. 321, 322, 84 L.Ed. 377, 379 (1940) (state cannot “convert the appointment of counsel into a sham and nothing more than a formal compliance with the Constitution’s requirement that an accused be given the assistance of counsel. The Constitution’s guaranty of assistance of counsel cannot be satisfied by mere formal appointment”).
. See text supra at note 12.
. E. g., United States v. DeCoster (DeCoster I), 159 U.S.App.D.C. 326, 331, 487 F.2d 1197, 1202 (1973).
. Supra note 18.
. 397 U.S. at 771, 90 S.Ct. at 1449, 25 L.Ed.2d at 773.
. Id.
. See cases cited infra notes 31-33.
. Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972); Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961).
. Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975).
. Geders v. United States, supra note 24.
. Only three circuits continue to utilize the farce-and-mockery test. United States v. Wright, 573 F.2d 681, 683-684 (1st Cir.), cert. denied, 436 U.S. 949, 98 S.Ct. 2857, 56 L.Ed.2d 792 (1978) (ineffective assistance of counsel means presentation that makes a mockery, sham or farce of trial); United States v. Bubar, 567 F.2d 192, 202 (2d Cir.), cert. denied, 434 U.S. 872, 98 S.Ct. 217, 54 L.Ed.2d 171 (1977) (assistance not ineffective unless purported representation by counsel made trial farce and mockery of justice); United States v. Riebold, 557 F.2d 697, 703 (10th Cir.), cert. denied, 434 U.S. 860, 98 S.Ct. 186, 54 L.Ed.2d 133 (1977) (representation competent unless perfunctory, in bad faith, sham, or pretense). Both the First and the Second Circuits have, however, recently adverted to the higher reasonable-compe-fence standard without expressly overruling earlier farce-and-mockery language. See United States v. Wright, supra, 573 F.2d at 684 (even under higher standard of “reasonably effective assistance,” defendant’s counsel provided effective assistance); United States v. Williams, 575 F.2d 388, 393 (2d Cir.), cert. denied, 439 U.S. 842, 99 S.Ct. 134, 58 L.Ed.2d 141 (1978) (performance of counsel did not make proceedings farce or mockery, nor did it fall below standard of reasonably competent attorney acting as diligent, conscientious advocate); United States v. Tolliver, 569 F.2d 724, 731 (2d Cir. 1978) (defense counsel’s conduct easily met even the more liberal standard that defendant is entitled to reasonably effective assistance of attorney acting as diligent, conscientious advocate).
. See Moore v. United States, 432 F.2d 730, 736 (3d Cir. 1970) (defendant entitled to counsel exercising level of skill and knowledge customary to the time and place of representation); Marzullo v. Maryland, 561 F.2d 540, 543-544 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (representation must be “within the range of competence demanded of attorneys in criminal cases”); United States v. Carter, 566 F.2d 1265, 1272 (5th Cir.), cert. denied, 436 U.S. 956, 98 S.Ct. 3069, 57 L.Ed.2d 1121 (1978) (standard for evaluating defense counsel is whether defendant received “reasonably effective assistance”); United States v. Yelardy, 567 F.2d 863, 866 (6th Cir.), cert. denied, 439 U.S. 842, 99 S.Ct. 133, 58 L.Ed.2d 140 (1978) (assistance of counsel not ineffective when advice is “within the range of competence demanded of attorney in criminal cases”); Monteer v. Benson, 574 F.2d 447, 450 (8th Cir. 1978) (defendant entitled *249to the “exercise [of] the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances”); Cooper v. Fitzharris, 586 F.2d 1325, 1328 (9th Cir. 1978) (defendant entitled to reasonably competent and effective representation). Although the Seventh Circuit does not employ the farce-and-mockery test, it subscribes to a standard that appears to fall somewhere between farce and mockery and reasonably effective assistance. See United States ex rel. Rooney v. Housewright, 568 F.2d 516, 525-526 (7th Cir. 1977) (attorney must “exhibit[] a minimum degree of professional competency”).
. DeCoster I, supra note 26, 159 U.S.App.D.C. at 331, 487 F.2d at 1202.
. See, e. g., National Sav. Bank v. Ward, 100 U.S. 195, 198, 25 L.Ed. 621, 622 (1880) (attorney is bound to act with “a proper degree of skill, and with reasonable care and to the best of his knowledge”); Wilcox v. Plummer, 29 U.S. (4 Pet.) 172, 180, 7 L.Ed. 821, 824 (1830) (attorney is impliedly bound “to act diligently and skillfully” in the conduct of his client’s case); Dorf v. Relles, 355 F.2d 488, 492 (7th Cir. 1966) (attorney owes to client “good faith and reasonable skill and diligence in the prosecution of the case”); Palmer v. Nissen, 256 F.Supp. 497, 501 (D.Me.1966) (attorney is bound to execute business in his profession entrusted to his care with a reasonable degree of care, skill and dispatch); Transamerica Ins. Co. v. Keown, 451 F.Supp. 397, 402 (D.N.J. 1978) (attorney’s “standard of care is measured by the knowledge and skill ordinarily possessed and exercised by others in the profession”); Davis v. Associated Indem. Corp., 56 F.Supp. 541, 543 (M.D.Pa.1944) (attorney “must give such attention to his duties, and to the interests of his client, as ordinary prudence demands, or members of the profession usually bestow”). See generally W. Prosser, Torts, § 32 at 161— 165 (4th ed. 1971).
. I cite the civil counterpart of the ineffective assistance claim in criminal litigation simply to make the point stated in text. In a civil action for damages, of course, the burden is upon the plaintiff to prove injury flowing from the lawyer’s breach of duty, see generally W. Prosser, Torts, § 328A at 149 (4th ed. 1971), and the analogy is lost at this point. See Part III infra.
. Bazelon Op., 199 U.S.App.D.C. at -, 624 F.2d at 297.
. McMann v. Richardson, supra note 18, 397 U.S. at 771, 90 S.Ct. at 1449, 25 L.Ed.2d at 773.
. Leventhal Op., 199 U.S.App.D.C. at-, 624 F.2d at 208.
. Id.
. “A retrospective examination of a lawyer’s representation to determine whether it was free from any error would exact a higher measure of competency than the prevailing standard. Perfection is hardly attainable and certainly is not the general rule, especially in professional work where intuitive judgments and spontaneous decisions are often required in varying circumstances. The artistry of the advocate is difficult to judge retrospectively because the elements influencing judgment usually cannot be captured on the record. The kaleidoscopic range of possibilities often seems limitless, and it is proverbial that the finest ideas emerge on the way back from the courthouse. The advocate’s work, therefore, is not readily capable of later audit like a bookkeeper’s. Of course, not all the activity of the advocate has this highly subjective quality. It is possible to examine the sufficiency of his preparation and the adequacy of his knowledge of the relevant law. Review may disclose failures at the trial. All these are matters which will inform the judgment on a retrospective inquiry whether counsel adequately performed his duty. But since what is required is normal and not exceptional representation, there is room for the realization that it would be difficult to find a case where even the ablest and most experienced trial lawyer would be completely satisfied after a searching re-examination of his conduct of a case.” Moore v. United States, supra note 35, 432 F.2d at 736-737. See also Bazelon Op., 199 U.S.App.D.C. at-, 624 F.2d at 276.
. Judge Bazelon has “attempted to give substantive content to the Sixth Amendment’s mandate by setting forth [the] minimum requirements of [a] competent performance” in the form of “duties . . . derived from the American Bar Association’s Standards for the Defense Function.” Bazelon Op., 199 U.S.App.D.C. at-, 624 F.2d at 275. While I would look to these standards as indications of contemporary thought on what a competent performance should offer, I share the plurality’s difficulties respecting their use for much more. See Leventhal Op., 199 U.S.App.D.C. at-, 624 F.2d at 223. Reasonable competence, I think, must retain the degree of flexibility characteristic of most constitutional tests. Judges undoubtedly have enough of a feel to say with confidence that particular activities must enter at a reasonable level of quality into any performance to be deemed effective. Beyond that, in my view, the precise content of effective counsel-assistance must steadily evolve through the traditional and ongoing process of constitutional interpretation in given concrete contexts. In any event, I perceive no need to venture beyond the case before us, and for me the outcome on duty to investigate is decisive. See Part IV infra, and note 159.
. See Part III infra.
. See Part IV infra.
. See Leventhal Op., 199 U.S.App.D.C. at -, 624 F.2d at 212; Bazelon Op., 199 U.S. App.D.C. at -, 624 F.2d at 279. But see MacKinnon Op., 199 U.S.App.D.C. at-, 624 F.2d at 232.
. See, e. g., Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 15, 96 S.Ct. 2882, 2892, 49 L.Ed.2d 752, 766 (1976); Lehnhausen v. Lake Shore Auto Parts Co., 410 U.S. 356, 364, 93 S.Ct. 1001, 1006, 35 L.Ed.2d 351, 358 (1973); Goldblatt v. Town of Hempstead, 369 U.S. 590, 596, 82 S.Ct. 987, 991, 8 L.Ed.2d 130, 135 (1962); Flemming v. Nestor, 363 U.S. 603, 617, 80 S.Ct. 1367, 1376, 4 L.Ed.2d 1435, 1448 (1960).
. United States v. Canty, 152 U.S.App.D.C. 103, 110, 469 F.2d 114, 121 (1972).
. United States v. Pinkney, 177 U.S.App.D.C. 423, 431, 543 F.2d 908, 916 (1976).
. Leventhal Op., 199 U.S.App.D.C. at-, 624 F.2d at 207.
. MacKinnon Op., 199 U.S.App.D.C. at--, 624 F.2d at 232.
. Id. at-, 624 F.2d at 233.
. 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Id. at 23, 87 S.Ct. at 827-828, 17 L.Ed.2d at 710 (footnote omitted). See also Harrington v. California, 395 U.S. 250, 251, 89 S.Ct. 1726, 1727, 23 L.Ed.2d 284, 286 (1969).
. Chapman v. California, supra note 54, 386 U.S. at 21, 87 S.Ct. at 827, 17 L.Ed.2d at 709.
. Id. at 22, 87 S.Ct. at 827, 17 L.Ed.2d at 709.
. Id. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710.
. Id., citing 1 J. Wigmore, § 21 (3d ed. 1940).
. Chapman v. California, supra note 54, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710. For this the Court found support in its earlier decision in Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 230, 11 L.Ed.2d 171, 173 (1963).
. See text supra at note 55.
. Chapman v. California, supra note 54, 386 U.S. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-711. See also Harrington v. California, supra note 55, 395 U.S. at 251, 89 S.Ct. at 1727, 23 L.Ed.2d at 286.
. See Holloway v. Arkansas, supra note 18, 435 U.S. at 490, 98 S.Ct. at 1182, 55 L.Ed.2d at 438 (citing Chapman v. California, supra note 54).
. See Estelle v. Williams, 425 U.S. 501, 504, 96 S.Ct. 1691, 1693, 48 L.Ed.2d 126, 130 (1976) (citing overwhelming judicial recognition of accused’s right not to be compelled to go to trial in prison clothing); Estes v. Texas, 381 U.S. 532, 544, 85 S.Ct. 1628, 1633-1634, 14 L.Ed.2d 543, 551 (1965) (noting that 48 states and the Federal Rules have proscribed the use of television in the courtroom); Peters v. Kiff, 407 U.S. 493, 501-503, 92 S.Ct. 2163, 2168, 33 L.Ed.2d 83, 93-94 (1972) (adverting to long history of constitutional protection from actually or potentially biased tribunal); Johnson v. Zerbst, 304 U.S. 458, 467-468, 58 S.Ct. 1019, 1024, 82 L.Ed. 1461, 1468 (1938) (citing explicit guaranty of right to counsel in Sixth Amendment).
. See Barker v. Wingo, 407 U.S. 514, 519-521, 92 S.Ct. 2182, 2186-2187, 33 L.Ed.2d 101, 110-111 (1972); United States v. Dougherty, 154 U.S.App.D.C. 76, 91, 473 F.2d 1113, 1128 (1972).
. See Estelle v. Williams, supra note 64, 425 U.S. at 504, 96 S.Ct. at 1693, 48 L.Ed.2d at 130 (trial of defendant in prison attire inherently prejudicial; actual harm need not be shown); Barker v. Wingo, supra note 65, 405 U.S. at 521, 532, 92 S.Ct. at 2187, 2193, 33 L.Ed.2d at 111 — 112, 118 (violation of right to speedy trial not inherently prejudicial; actual injury must be shown); Hamilton v. Alabama, 368 U.S. 52, 55, 82 S.Ct. 157, 159, 7 L.Ed.2d 114, 116-117 (1961) (absence of counsel on entry of guilty plea inherently prejudicial; actual prejudice *253need not be shown); Estes v. Texas, supra note 64, 381 U.S. at 542-550, 85 S.Ct. at 1632-1636, 14 L.Ed.2d at 550-554 (use of television in courtroom inherently prejudicial; actual prejudice need not be shown); Turner v. Louisiana, 379 U.S. 466, 473-474, 85 S.Ct. 546, 550, 13 L.Ed.2d 424, 429-430 (1965) (no need to consider actual effects of close contact between jurors and prosecution witnesses because association inherently prejudicial); Rideau v. Louisiana, 373 U.S. 723, 726-727, 83 S.Ct. 1417, 1419-1420, 10 L.Ed.2d 663, 665-666 (1963) (televising defendant in act of confessing crime inherently prejudicial; actual prejudice need not be shown); Williams v. Kaiser, 323 U.S. 471, 475-476, 65 S.Ct. 363, 366, 89 L.Ed. 398, 402 (1945) (absence of attorney at entry of guilty plea inherently prejudicial; actual prejudice need not be shown).
. See Peters v. Kiff, supra note 64, 407 U.S. at 503-504, 92 S.Ct. at 2169, 33 L.Ed.2d at 94-95 (proof of harm from verdict of unconstitutionally selected jury impossible to adduce); Estes v. Texas, supra note 64, 381 U.S. at 544-545, 85 S.Ct. at 1633-1634, 14 L.Ed.2d at 551 (harmful effects from televised trial too subtle to prove).
. See note 76 infra and accompanying text.
. Tumey v. Ohio, 273 U.S. 510, 535, 47 S.Ct. 437, 445, 71 L.Ed. 749, 759 (1927).
. Id. at 522-531, 47 S.Ct. at 441-444, 71 L.Ed. at 754-758.
. Peters v. Kiff, supra note 64, 407 U.S. at 504, 92 S.Ct. at 2169, 33 L.Ed.2d at 94-95. In Taylor v. Louisiana, 419 U.S. 522, 95 S.Ct. 692, 42 L.Ed.2d 690 (1975), the Court, holding that the Sixth Amendment guaranty of an impartial jury encompasses the right to a jury drawn from both the male and female populations, reversed a conviction reached by an unconstitutionally drawn jury without even discussing the relevance of prejudice. Id. at 526-538, 95 S.Ct. at 695-702, 42 L.Ed.2d at 695-703; see id. at 538-543, 95 S.Ct. at 702-704, 42 L.Ed.2d at 703-705 (dissenting opinion).
. Sheppard v. Maxwell, 384 U.S. 333, 351-353, 363, 86 S.Ct. 1507, 1516-1517, 1522, 16 L.Ed.2d 600, 614, 621 (1966).
. Estes v. Texas, supra note 64, 381 U.S. at 542-550, 85 S.Ct. at 1632-1636, 14 L.Ed.2d at 550-554.
. Id. at 544, 85 S.Ct. at 1633, 14 L.Ed.2d at 551.
. Id.
. Blackburn v. Alabama, 361 U.S. 199, 206-207, 80 S.Ct. 274, 279-280, 4 L.Ed.2d 242, 248 (1960) (“in cases involving involuntary confessions, [the] Court enforces the strongly felt attitude of our society that important human values are sacrificed when an agency of the government, in the course of securing a conviction, wrings a confession out of an accused against his will. ... [A] complex of values underlies the stricture against use by the state of confessions which, by way of convenient shorthand, [the] Court terms involuntary . . . .”) (citations omitted); Spano v. New *254York, 360 U.S. 315, 320-321, 79 S.Ct. 1202, 1205-1206, 3 L.Ed.2d 1265, 1270 (1959) (“[t]he abhorrence of society to the use of involuntary confessions does not turn alone on their inherent untrustworthiness. It also turns on the deep-rooted feeling that the police must obey the law while enforcing the law; that in the end life and liberty can be as much endangered from illegal methods used to convict those thought to be criminals as from the actual criminals themselves”); Rochin v. California, 342 U.S. 165, 173, 72 S.Ct. 205, 210, 96 L.Ed. 183, 190-191 (1952) (“[u]se of involuntary verbal confessions in State criminal trials is constitutionally obnoxious not only because of their unreliability. . . . Coerced confessions offend the community’s sense of fair play and decency”). Reversal is automatic despite the presence of other evidence leaving little doubt of the truth of what was confessed. E. g., Haynes v. Washington, 373 U.S. 503, 518, 83 S.Ct. 1336, 1345, 10 L.Ed.2d 513, 523 (1963); Lynumn v. Illinois, 372 U.S. 528, 537, 83 S.Ct. 917, 922, 9 L.Ed.2d 922, 928 (1963); Rochin v. California, supra.
. Turner v. Louisiana, supra note 66, 379 U.S. at 473, 85 S.Ct. at 550, 13 L.Ed.2d at 429.
. Bollenbach v. United States, 326 U.S. 607, 615, 66 S.Ct. 402, 406, 90 L.Ed. 350, 356 (1946).
. United States v. Dougherty, supra note 65, 154 U.S.App.D.C. at 91, 473 F.2d at 1128.
. Id.
. Chapman v. California, supra note 54, 386 U.S. at 22, 87 S.Ct. at 827, 17 L.Ed.2d at 709.
. Id. at 44, 87 S.Ct. at 838, 17 L.Ed.2d at 722.
. Prosecutorial comment on the defendants’ failures to testify and an instruction authorizing the jury to draw adverse inferences from those failures, practices condemned in Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965).
. Chapman v. California, supra note 54, 386 U.S. at 22-26, 87 S.Ct. at 827-829, 17 L.Ed.2d at 707-711.
. Id. at 24, 87 S.Ct. at 828, 17 L.Ed.2d at 710-711.
. See Brown v. United States, 411 U.S. 223, 230-232, 93 S.Ct. 1565, 1570, 36 L.Ed.2d 208, 215 (1973) (statement submitted into evidence in contravention of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); error deemed harmless); Schneble v. Florida, 405 U.S. 427, 430-432, 92 S.Ct. 1056, 1059-1060, 31 L.Ed.2d 340, 344-345 (1972) (Bruton violation harmless error); Harrington v. California, supra note 55, 395 U.S. at 251-254, 89 S.Ct. at 1727, 23 L.Ed.2d at 286 (Bruton violation harmless error); Bumper v. North Carolina, 391 U.S. 543, 550, 88 S.Ct. 1788, 1792, 20 L.Ed.2d 797, 803 (1968) (admission of evidence seized in transgression of Fourth Amendment evaluated under Chapman harmless-error test); Fontaine v. California, 390 U.S. 593, 596, 88 S.Ct. 1229, 1231, 20 L.Ed.2d 154, 157 (1968) (comments on defendant’s failure to take the witness stand — an infringement of his constitutional privilege against self-incrimination, see note 83 supra — viewed under Chapman harmless-error test); United States v. Alston, 179 U.S.App.D.C. 129, 130, 551 F.2d 315, 316 (1976) (erroneous burden-of-proof instruction dealt with under Chapman harmless-error test); United States v. Pinkney, 179 U.S.App.D.C. 282, 285-286, 551 F.2d 1241, 1244-1245 (1976) (erroneous burden-of-proof instruction addressed under Chapman harmless-error test); United States v. Liddy, 111 U.S.App.D.C. 1, 7-8, 542 F.2d 76, 82-83 (1976) (merits of claims of violations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and deprivation of Sixth Amendment right to compulsory process not reached because error if any was harmless); United States v. Scott, 174 U.S.App.D.C. 96, 98-99, 529 F.2d 338, 340-341 (1975) (erroneous burden-of-proof instruction harmless beyond a reasonable doubt); United States v. Liddy, 166 U.S.App.D.C. 95, 111-112, 509 F.2d 428, 444-445 (1974), cert. denied, 420 U.S. 911, 95 S.Ct. 833, 42 L.Ed.2d 842 (1975) (admission of evidence that accused retained attorney and instruction permitting adverse inference to be drawn therefrom “raises Sixth Amendment problems under Griffin,” supra note 83; even assuming constitutional violation, error was harmless under Chapman); United States v. Lindsay, 165 U.S.App.D.C. 105, 113, 506 F.2d 166, 174 (1974) (admission of unconstitutionally seized evidence assessed under Chapman harmless-error test).
. The harmless error test is most commonly applied in cases in which the asserted constitutional violation takes the form of receipt of inadmissible evidence, erroneous jury instructions or improper comments by the prosecutor. See cases cited supra note 86.
. Error consisting of a specific trial occurrence differs readily from pervasive error in the form of a biased tribunal, prejudicial publicity or complete lack of counsel. Compare cases cited supra note 86 with text supra at notes 64-80.
. Holloway v. Arkansas, supra note 18, 435 U.S. at 490, 98 S.Ct. at 1182, 55 L.Ed.2d at 438.
. See notes 103-113 infra and accompanying text.
. Harrington v. California, supra note 55, 395 U.S. at 254, 89 S.Ct. at 1728, 23 L.Ed.2d at 287.
. See Holloway v. Arkansas, supra note 18, 435 U.S. at 487-491, 98 S.Ct. at 1180-1182, 55 L.Ed.2d at 436-438; Herring v. New York, supra note 32, 422 U.S. at 865, 95 S.Ct. at 2556-2557, 45 L.Ed.2d at 602; Chapman v. California, supra note 54, 386 U.S. at 43, 87 S.Ct. at *256837, 17 L.Ed.2d at 721 (concurring opinion); Hamilton v. Alabama, supra note 66, 368 U.S. at 55, 82 S.Ct. at 159, 7 L.Ed.2d at 116-117; Glasser v. United States, supra note 18, 315 U.S. at 75-76, 62 S.Ct. at 467, 86 L.Ed. at 706.
. See text supra at note 21; Johnson v. Zerbst, supra note 64, 304 U.S. at 467-468, 58 S.Ct. at 1024, 82 L.Ed. at 1468.
. See notes 21-36 supra and accompanying text.
. Chapman v. California, supra note 54, 386 U.S. at 43, 87 S.Ct. at 837, 17 L.Ed.2d at 721 (concurring opinion); Hamilton v. Alabama, supra note 66, 368 U.S. at 55, 82 S.Ct. at 159, 7 L.Ed.2d at 116-117 (“[o]nly the presence of counsel could have enabled [the] accused to know all the defenses available to him and to plead intelligently”); Williams v. Kaiser, supra note 66, 323 U.S. at 475-476, 65 S.Ct. at 366, 89 L.Ed. at 402 (“[a] layman is usually no match for the skilled prosecutor whom he confronts in the courtroom. He needs the aid of counsel lest he be the victim of overzealous prosecutors, of the law’s complexity, or of his own ignorance or bewilderment”).
. Hamilton v. Alabama, supra note 66, 368 U.S. at 55, 82 S.Ct. at 159, 7 L.Ed.2d at 116-117 (“the degree of prejudice [from absence of counsel at arraignment] can never be known”); Williams v. Kaiser, supra note 66, 323 U.S. at 475, 65 S.Ct. at 366, 89 L.Ed. at 402 (“we cannot know the degree of prejudice which the denial of counsel caused”); Giasser v. United States, supra note 18, 315 U.S. at 75-76, 62 S.Ct. at 467, 86 L.Ed. at 702 (“[t]o determine the precise degree of prejudice sustained by [the defendant] as a result of [appointed counsel’s conflict of interest] is at once difficult and unnecessary”).
. See, e. g., Chapman v. California, supra note 54, 386 U.S. at 43, 87 S.Ct. at 837, 17 L.Ed.2d at 721; Gideon v. Wainwright, supra note 18, 372 U.S. at 336-338, 345, 83 S.Ct. at 793, 797, 9 L.Ed.2d at 800, 806; Hamilton v. Alabama, supra note 66, 368 U.S. at 55, 82 S.Ct. at 159, 7 L.Ed.2d at 116-117; Williams v. Kaiser, supra note 66, 323 U.S. at 475-476, 65 S.Ct. at 366, 89 L.Ed. at 402; White v. Maryland, 373 U.S. 59, 60, 83 S.Ct. 1050, 1051, 10 L.Ed.2d 193, 194 (1963).
. Powell v. Alabama, supra note 19, 287 U.S. at 71-72, 53 S.Ct. at 65, 77 L.Ed. at 171-172.
. Holloway v. Arkansas, supra note 18, 435 U.S. at 481-484, 490, 98 S.Ct. at 1177-1179, 1182, 55 L.Ed.2d at 433-434, 438; Glasser v. United States, supra note 18, 315 U.S. at 76, 62 S.Ct. at 468, 86 L.Ed. at 702.
. See note 95 supra.
. See note 96 supra.
. See Milton v. Wainwright, 407 U.S. 371, 377-378, 92 S.Ct. 2174, 2178, 33 L.Ed.2d 1, 6-7 (1972) (alleged Fifth and Sixth Amendment infractions not reached because error, if any, was harmless); Coleman v. Alabama, 399 U.S. 1, 11, 90 S.Ct. 1999, 2004, 26 L.Ed.2d 387, 397-398 (1970) (case remanded to determine whether denial of right to counsel at preliminary hearing was harmless error); United States v. Wade, 388 U.S. 218, 242, 87 S.Ct. 1926, 1940, 18 L.Ed.2d 1149, 1166 (1967) (case remanded to ascertain impact of lack of counsel at lineup). See also Anderson v. United States, 122 U.S. App.D.C. 277, 279, 352 F.2d 945, 947 (1965) (absence of counsel at arraignment harmless because record “affirmatively shows that no prejudice resulted”); In re DiBella, 518 F.2d 955, 959 (2d Cir. 1975) (exclusion of counsel from reading of grand jury minutes during contempt proceedings harmless where client was allowed to repeat substance to counsel and exact phraseology was not possibly important); United States v. Crowley, 529 F.2d 1066, 1070-1071 (3d Cir.), cert. denied, 425 U.S. 995, 96 *257S.Ct. 2209, 48 L.Ed.2d 820 (1976) (denial of counsel at hearing on motion to withdraw guilty plea harmless under the circumstances).
. Gilbert v. California, 388 U.S. 263, 269-273, 87 S.Ct. 1951, 1954-1957, 18 L.Ed.2d 1178, 1184-1187 (1967). See also Moore v. Illinois, 434 U.S. 220, 98 S.Ct. 458, 54 L.Ed.2d 424 (1977).
. United States v. Wade, supra note 102, 388 U.S. at 223-242, 87 S.Ct. at 1930-1940, 18 L.Ed.2d at 1155-1166.
. Moore v. Illinois, supra note 103, 434 U.S. at 232, 98 S.Ct. at 466, 54 L.Ed.2d at 263 (case remanded for determination of whether admission of evidence of identification of unrepresented accused at preliminary hearing was harmless error); Gilbert v. California, supra note 103, 388 U.S. at 274, 87 S.Ct. at 1957, 18 L.Ed.2d at 1187 (case remanded for inquiry into degree of harm from introduction of evidence of pretrial identification of unrepresented suspect at lineup); United States v. Wade, supra note 102, 388 U.S. at 242, 87 S.Ct. at 1940, 18 L.Ed.2d at 1166 (case remanded for ascertainment of impact on in-court identification of prior identification of unrepresented suspect at pretrial lineup).
. See Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
. See Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964).
. Milton v. Wainwright, supra note 102, 407 U.S. at 375-378, 92 S.Ct. at 2177-2178, 33 L.Ed.2d at 5-7 (merits of alleged Massiah violation not reached because error, if any, harmless); United States v. Cheung Kin Ping, 555 F.2d 1069, 1076-1077 (2d Cir. 1977) (use of defendant’s incriminating statements inadmissible under Miranda harmless error because evidence was merely cumulative).
. See Coleman v. Alabama, supra note 102, 399 U.S. at 10-11, 90 S.Ct. at 2003-2004, 26 L.Ed.2d at 397-398. But see White v. Maryland, supra note 97.
. See Anderson v. United States, supra note 102. But see Hamilton v. Alabama, supra note 66.
. See United States v. Crowley, supra note 102; McGill v. United States, 121 U.S.App.D.C. 179, 180-182, 348 F.2d 791, 792-794 (1965).
. See In re DiBella, supra note 102; United States v. Calabro, 467 F.2d 973, 988-989 (1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973) (counsel’s absence because of illness during jury deliberations and return of verdict harmless).
. In another context, the Supreme Court has observed that “ ‘lack of counsel at a preliminary hearing involves less danger to “the integrity of the truth-determining process at trial” than the omission of counsel at the trial itself or on appeal. Such danger is not ordinarily greater, we consider, at a preliminary hearing at which the accused is unrepresented than at a pretrial line-up or at an interrogation conducted without presence of an attorney.’ ” Adams v. Illinois, 405 U.S. 278, 283, 92 S.Ct. 916, 919, 31 L.Ed.2d 202, 208 (1972), quoting People v. Adams, 46 Ill.2d 200, 263 N.E.2d 490, 494 (1970), in turn quoting Stovall v. Denno, 388 U.S. 293, 298, 87 S.Ct. 1967, 1970, 18 L.Ed.2d 1199, 1204 (1967).
. See United States ex rel. Chambers v. Ma-roney, 408 F.2d 1186, 1194 (3d Cir. 1969), aff’d, Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970); Twiford v. Peyton, 372 F.2d 670, 673 (4th Cir. 1967); Martin v. Commonwealth of Virginia, 365 F.2d 549, 551-552 (4th Cir. 1966).
. See United States v. Pinkney, supra note 50, 177 U.S.App.D.C. at 430-432, 543 F.2d at 915-917.
. Supra note 114.
. 399 U.S. at 53-54, 90 S.Ct. at 1982-1983, 26 L.Ed.2d at 429-430.
. See, e. g., Dickey v. Florida, 398 U.S. 30, 54, 90 S.Ct. 1564, 1577, 26 L.Ed.2d 26, 41-42 (1970) (“[w]ithin the context of Sixth Amendment rights, the defendant generally does not have to show that he was prejudiced by the denial of counsel, confrontation, public trial, and impartial jury, knowledge of the charges against him, trial in the district where the crime was committed, or compulsory process”); Chapman v. California, supra note 54, 386 U.S. at 42-44, 87 S.Ct. at 836-837, 17 L.Ed.2d at 720-721 (concurring opinion) (citing numerous cases requiring automatic reversal for violations of Fifth and Sixth Amendment rights); Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961) (defendant claiming violations of Fourth Amendment rights need only show that evidence has been seized without a properly-issued warrant and without the justification of an exception to the warrant requirement); Snyder v. Massachusetts, 291 U.S. 97, 116, 54 S.Ct. 330, 336, 78 L.Ed. 674, 683 (1934) (some “constitutional privileges or immunities may be conferred so explicitly as to leave no room for an inquiry whether prejudice to a defendant has been wrought through their denial”). See also text supra at notes 54-64.
. Barker v. Wingo, supra note 65, 407 U.S. at 521, 532, 92 S.Ct. at 2187, 2193, 33 L.Ed.2d at 111-112. Extraordinary treatment is accorded the speedy trial right because it “is generically different from any of the other rights enshrined in the Constitution for the protection of the accused.” Id. at 519, 92 S.Ct. at 2186, 33 L.Ed.2d at 110. First, “there is a societal interest in providing a speedy trial which exists separate from, and at times in opposition to, the interests of the accused.” Id. at 519, 92 S.Ct. at 2186, 33 L.Ed.2d at 110-111. Second, “deprivation of the right may work to the accused’s advantage.” Id. at 521, 92 S.Ct. at 2187, 33 L.Ed.2d at 111. Third, “the right to speedy trial is a more vague concept than other procedural rights.” Id. at 521, 92 S.Ct. at 2187, 33 L.Ed.2d at 112. Finally, unlike many other protections that can be safeguarded through exclusion of tainted evidence or reversal for a new trial, the only remedy for a speedy-trial violation is dismissal of the charge. Id. at 522, 92 S.Ct. at 2188, 33 L.Ed.2d at 112.
. Estes v. Texas, supra note 64, 381 U.S. at 542, 85 S.Ct. at 1632-1633, 14 L.Ed.2d at 550. See also United States v. Agurs, 427 U.S. 97, 108, 96 S.Ct. 2392, 2400, 49 L.Ed.2d 342, 352 *259(1976); Murphy v. Florida, 421 U.S. 794, 803, 95 S.Ct. 2031, 2038, 44 L.Ed.2d 589, 596-597 (1975).
. See Estelle v. Williams, supra note 64, 425 U.S. at 503-506, 96 S.Ct. at 1692-1694, 48 L.Ed.2d at 130-131; Peters v. Kiff, supra note 64, 407 U.S. at 501-502, 92 S.Ct. at 2168-2169, 33 L.Ed.2d at 93-95; Estes v. Texas, supra note 64, 381 U.S. at 542-550, 85 S.Ct. at 1636-1638, 14 L.Ed.2d at 550-554; Turner v. Louisiana, supra note 66, 379 U.S. at 473-474, 85 S.Ct. at 550, 13 L.Ed.2d at 429-430; Rideau v. Louisiana, supra note 66, 373 U.S. at 726-727, 83 S.Ct. at 1419-1420, 10 L.Ed.2d at 665-666; In re Murchison, 349 U.S. 133, 136-139, 75 S.Ct. 623, 625-627, 99 L.Ed. 942, 946-948 (1955); Turney v. Ohio, supra note 69, 273 U.S. at 532, 535, 47 S.Ct. at 444, 445, 71 L.Ed. at 758, 759.
. Although for some violations of the Sixth Amendment right to counsel the Government is permitted to show defensively a lack of prejudice, see notes 102^113 supra and accompanying text, the defendant nevertheless is not required to make an affirmative showing of prejudice in order to establish his constitutional claim. See Dickey v. Florida, supra note 118.
. See notes 55, 63-80, 92-102 supra and accompanying text.
. See text supra at note 62.
. See text supra at note 21.
. See notes 18, 21-36 supra and accompanying text.
. Powell v. Alabama, supra note 19, 287 U.S. at 68-72, 53 S.Ct. at 63-65, 77 L.Ed. at 170-172.
. See notes 18, 19 supra. For a recent instance, see Holloway v. Arkansas, supra note 18, 435 U.S. at 481-484, 98 S.Ct. at 1177-1179, 55 L.Ed.2d at 433-434.
. See, e. g., United States v. Hurt, 177 U.S. App.D.C. 15, 18, 543 F.2d 162, 165 (1976); Diggs v. Welch, supra note 6, 80 U.S.App.D.C. at 6-7, 148 F.2d at 668-669; Leventhal v. Gavin, 421 F.2d 270, 272-273 (1st Cir.), cert. denied, 398 U.S. 941, 90 S.Ct. 1857, 26 L.Ed.2d 277 (1970); United States v. Bubar, supra note 34, 567 F.2d at 201-202; United States v. Wight, 176 F.2d 376, 379-380 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S.Ct. 478, 94 L.Ed. 586 (1950); United States ex rel. Johnson v. Johnson, 531 F.2d 169, 174 (3d Cir.), cert. denied, 425 U.S. 997, 96 S.Ct. 2214, 48 L.Ed.2d 823 (1976); Wood v. Zahradnick, 578 F.2d 980, 982 (4th Cir. 1978); Jones v. Cunningham, 297 F.2d 851, 854-855 (4th Cir. 1962); United States v. Alvarez, 580 F.2d 1251, 1254-1255 (5th Cir. 1978); Collingsworth v. Mayo, 173 F.2d 695, 697 (5th Cir. 1949); Wilson v. Cowan, 578 F.2d 166, 168 (6th Cir. 1978); United States ex rel. Healey v. Cannon, 553 F.2d 1052, 1057 (7th Cir.), cert. denied, 434 U.S. 874, 98 S.Ct. 221, 54 L.Ed.2d 153 (1977); United States ex rel. Feeley v. Ragen, 166 F.2d 976, 980-981 (7th Cir. 1948); Beran v. United States, 580 F.2d 324, 326 (8th Cir. 1978), cert. denied, 440 U.S. 946, 99 S.Ct. 1422, 59 L.Ed.2d 634 (1979); Taylor v. United States, 282 F.2d 16, 20 (8th Cir. 1960); Farrow v. United States, 580 F.2d 1339, 1361 (9th Cir. 1978); Brubaker v. Dickson, 310 F.2d 30, 37 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963); United States v. Riebold, supra note 34, 557 F.2d at 702-703; Williams v. Cox, 350 F.2d 847, 849 (10th Cir. 1965).
. See text supra at notes 6-19.
. See notes 6-13 supra and accompanying text.
. See notes 34-35 supra and accompanying text.
. See notes 63-80, 93-101 supra and accompanying text.
. See text supra at notes 92-101.
. See text supra at notes 116-117.
. In Chambers v. Maroney, supra note 114, the Supreme Court addressed a contention that the assistance furnished by counsel for the accused at his second trial — an attorney different from his representative at the first trial — was ineffective owing to tardiness in the appointment of second-trial counsel. 399 U.S. at 53-54, 90 S.Ct. at 1982-1983, 26 L.Ed.2d at 429-430. The Court of Appeals for the Third Circuit had found that the accused had not been prejudiced, United States ex rel. Chambers v. Maroney, supra note 114, and the Supreme Court agreed, stating that “the claim of prejudice from the substitution of counsel was without substantial basis.” 399 U.S. at 54, 90 S.Ct. at 1982, 26 L.Ed.2d at 430 (footnote omitted). That statement cannot be taken as support for the proposition that the defendant bears the onus of proving prejudice. The Court of Appeals subscribed to the legal thesis “that the belated appointment of counsel is inherently prejudicial and makes out a prima facie case of denial of effective counsel, with the burden of proving absence of prejudice shifted to the prosecuting authorities,” 408 F.2d at 1189— 1190, and the court’s sole concern was whether that burden had been met. Id. at 1188-1196. The Court of Appeals concluded that the record contained “ ‘adequate affirmative proof to rebut the prima facie presumption of prejudice from the belated appointment of counsel.” Id. at 1195, quoting Fields v. Peyton, 375 F.2d 624, 628 (4th Cir. 1967) (footnote omitted). It was to that holding that the Supreme Court spoke, and which it affirmed. See 399 U.S. at 53-54, 90 S.Ct. at 1982-1983, 26 L.Ed.2d at 429^30.
. Nor am I persuaded that this imposition becomes necessary on the ground that evidence bearing vitally on the impact of counsel’s inadequate performance usually is solely in the defendant’s possession. See Leventhal Op., - U.S.App.D.C. at -, 624 F.2d at 208; Mac-Kinnon Op.,-U.S.App.D.C. at-, 624 F.2d at 228. This argument overlooks the distinction between establishing substantially deficient representation, and identifying the effect of the deficiency on the outcome of the case. It is indeed the defendant’s lot to delineate his counsel’s departure from the constitutional norm. See text supra at notes 41-43. In so doing, the defendant may have to show just what his counsel should have done differently on the facts as he derived them from the defendant and other sources known only to him, and to this extent it may well be true that the evidence is exclusively in his hands. But that is the defendant’s concern, not the Government’s at all; and once counsel’s deficiencies have been documented, resolution of an issue of injury to the defendant’s interests does not require peculiar reference to evidence controlled by the defendant. That is accomplished instead by viewing the proven shortfalls in the context of events as they unfolded at trial. Sometimes it will necessitate an investigation into leads or witnesses neglected by defense counsel in order to ascertain what a proper investigation might have turned up and what effect any evidence thereby unearthed might have had at trial. There is no reason for assuming that with respect to these activities the accused is any better situated than the Government, and there is ample basis for believing that ofttimes his position will be relatively worse.
. See notes 41-43 supra and accompanying text.
. See notes 118-124 supra and accompanying text.
. See text supra at notes 54-62.
. See Chapman v. California, supra note 54, 386 U.S. at 22, 87 S.Ct. at 827, 17 L.Ed.2d at 709.
. United States v. Pinkney, supra note 50.
. 177 U.S.App.D.C. at 428-432, 543 F.2d at 913-917.
. Id. at 429, 543 F.2d at 914.
. Id.
. Id. at 431, 543 F.2d at 916 (footnotes omitted).
. Id. at 432, 543 F.2d at 917.
. Id. at 429-430, 543 F.2d at 914-915.
. The statement in the opinion that the “motion gave no indication as to the evidence, if any, by which [Pinkney] would undertake an effort at refutation” was directed solely at Pinkney’s “insist[ence] upon a further opportunity to dispute the drug-involvement allegations of the Government’s memorandum . . ..” Id. at 432, 543 F.2d at 917.
. Contrary to suggestions in other opinions, Leventhal Op., 199 U.S.App.D.C. at - n.75, 624 F.2d at 208 n.75; MacKinnon Op., 199 U.S.App.D.C. at -, 624 F.2d at 225. Pink-ney never arrived at the stage at which prejudice might have become a subject of inquiry. Since Pinkney did not surmount the hurdle of suitably alleging a violation, there was no occasion to consider whether it was harmful to the outcome on sentencing.
. United States v. Pinkney, supra note 50, 177 U.S.App.D.C. at 431-432 n. 59, 543 F.2d at 916-917 n. 59 (citation omitted).
. Bazelon Op., 199 U.S.App.D.C. at-, 624 F.2d at 279.
. See Judge Bazelon’s excellent discussion on this point. Bazelon Op., 199 U.S.App.D.C. at-, 624 F.2d at 278.
. I am mindful that the victim could not identify Decoster at trial, but that was be*263cause — after the robbery and before trial — the victim had sustained an accident impairing his vision.
. See Chapman v. California, supra note 54, 386 U.S. at 23, 87 S.Ct. at 827, 17 L.Ed.2d at 710 (“[t]he California constitutional [harmless error] rule . . . perhaps over emphasizes] . . . the court’s view of ‘overwhelming evidence’. . . . ”
. The victim, Trial Transcript (Tr.) (Nov. 15, 1972) 32, 41, 43, and the arresting officer, Tr. (Nov. 15, 1972) 39-41, as well as the arresting officer’s partner, Tr. (Nov. 16, 1972) 12, all identified Decoster as one of the robbers.
. Decoster testified that he met the victim at a bar, had a drink with him, then left and returned directly to his hotel. Tr. (Nov. 16, 1972) 29-35.
. See Note, Ineffective Representation as a Basis for Relief from Conviction: Principles for Appellate Review, 13 Colum. J. of L. & Soc. Prob. 1, 83 (1977) (“a failure to interview one of several government witnesses can be shown to have been harmless when the witness’ subsequent testimony was not significant”). Judge Bazelon in dissent urges that counsel’s inadequate pretrial investigation deprived Decoster of informed guidance on whether to plead guilty, and advances this as an example of prejudice. Bazelon Op., 199 U.S.App.D.C. at -,---, 624 F.2d at 292, 294-295. I am unable to agree. While it is possible to speculate that counsel failed to consult or improperly advised his client on pleading guilty, Decoster has never advanced that contention nor is there any foundation in the record for it. Aside from the difficulty that the point is not properly before us, it encounters also a far more formidable barrier. A question of harm to the accused from ineffective assistance of his counsel is not reached unless and until the accused has established both the fact and the substantiality of counsel’s asserted violation. This means that the accused must delineate all essential circumstances in support of his claim when it it is readily within his power to do so. United States v. Pinkney, supra note 50, 177 U.S.App.D.C. at 430-432, 543 F.2d at 915-917; text supra at notes 142-151. Moreover, in the context of omitted or incompetent advice on a guilty plea, the required demonstration on substantiality necessitates at the threshold a showing that the accused was at least amenable to such a plea. It is a known phenomenon that some defendants in criminal cases disdain the very thought of pleading guilty, and in this instance we are left completely in the dark as to whether Decoster would willingly have entertained and seriously considered a plea, or whether instead he would have insisted upon his right to a trial.
. I see no need to address Decoster’s remaining complaints of ineffective assistance since they also, for identical reasons, would succumb to the doctrine of harmless error.
. Griffin v. Illinois, 351 U.S. 12, 19, 76 S.Ct. 585, 591, 100 L.Ed. 891 (1956).
. Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 64, 77 L.Ed. 158 (1932).
. Despite recent expressions of concern over lawyer incompetence, see note 169 infra, the problem is not simply that there are too few good attorneys, but that competent legal representation in the United States is grossly maldis-tributed. There is no dearth of competent counsel for the rich in our society. But no one can say that the same is true for the indigent. The inadequate representation received by the poor is universally recognized and is well documented by the numerous studies and commentary cited below. Nor is the problem of ineffective assistance limited to those who are technically “indigent” and are provided counsel by the court. Those who can scrape together a few dollars to hire their own attorney can retain an attorney who, for a modest fee, will generally provide “modest” services — plea negotiations and pro forma representation with little investigation, preparation or concern for their client’s cause. Most indigent defendants, of course, must accept whomever the court appoints to represent them. And although the commitment and competence of court-appointed counsel has improved markedly over recent years, particularly with the development of public defender systems, its effectiveness is still handicapped by unmanageable caseloads, insufficient support services, inexperience in criminal trial practice, lack of independence from the judiciary that controls the appointments and fixes compensation, and inadequate levels of funding and fee schedules.
On the subject of indigent representation, see generally American Bar Association Project on Minimum Standards for Criminal Justice, Pro*265viding Defense Services (App. Draft 1968); American Bar Association Standing Committee on Legal Aid and Indigent Defendants, The Center for Defense Services: A Draft Discussion Proposal for the Establishment of a Nonprofit Corporation to Strengthen Indigent Defense Services (Feb. 1978 Draft) [hereinafter cited as The Center for Defense Services]; Boston University Center for Criminal Justice, Right to Counsel in Criminal Cases: The Mandate of Argersinger v. Hamlin (S. Krantz ed. 1976); L. Downie, Justice Denied (1971); National Legal Aid & Defender Ass’n, The Other Face of Justice (1973); Alschuler, The Defense Attorney’s Role in Plea Bargaining, 84 Yale L.J. 1179(1975); Bazelon, The Defective Assistance of Counsel, 42 U.Cinn.L.Rev. 1 (1973); Bazelon, The Realities of Gideon and Argersinger, 64 Geo.L.J. 811 (1976); Wice & Suwak, Current Realities of Public Defender Programs: A National Survey and Analysis, 10 Crim.L.Bull. 161 (1974); Note, Providing Counsel for the Indigent Accused: The Criminal Justice Act 12 Am.Crim.L.Rev. 789 (1975).
With specific reference to the District of Columbia, see generally H. Subin, Criminal Justice in a Metropolitan Court (1966); Comm, of the D.C. Bar on Effective Representation of Indigents in Criminal Cases, Report on the Appointed Counsel Program in the District of Columbia Courts (Dec. 1973); Joint Comm, of the Judicial Conf. of the D.C. Cir. and the D.C. Bar (Unified), Report on Criminal Defense Services in the District of Columbia (Austern-Rezneck Report) (April 1975); Report of the Comm, on Complaints of Ineffective Assistance of Counsel (Wolf Committee Report) (June 1977); Washington Pretrial Justice Program, Report on Disposition of Complaints Against Attorneys Appointed Under the Criminal Justice Act in D.C. Superior Court (Feb. 1977).
These studies document time and again that it is primarily the indigent and the poor who suffer at the hands of incompetent counsel. I am unaware of a single decision or opinion that acknowledges this basic reality underlying the problem of ineffective assistance.
. 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932).
. 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
. Id. at 344, 83 S.Ct. at 796-797.
. 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972). See Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979).
. See, e. g., Mayer v. Chicago, 404 U.S. 189, 198, 92 S.Ct. 410, 416, 30 L.Ed.2d 372 (1971) (indigent convicted of offense punishable only by fine “cannot be denied a ‘record of sufficient completeness’ to permit proper consideration of his claims”); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) (indigent unable to pay fine cannot be incarcerated to satisfy offense punishable only by fine); Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (incarceration of indigent unable to pay fine cannot exceed maximum statutory period); Roberts v. LaVallee, 389 U.S. 40, 88 S.Ct. 194, 19 L.Ed.2d 41 (1967) (per curiam) (right to free transcript of preliminary hearing); Long v. District of Iowa, 385 U.S. 192, 87 S.Ct. 362, 17 L.Ed.2d 290 (1966) (per curiam) (right to free transcript on collateral appeal); Draper v. Washington, 372 U.S. 487, 83 S.Ct. 774, 9 L.Ed.2d 899 (1963) (right to free transcript on direct appeal); Smith v. Bennet, 365 U.S. 708, 81 S.Ct. 895, 6 L.Ed.2d 39 (1961) (waiver of filing fees for state post-conviction proceedings); Burns v. Ohio, 360 U.S. 252, 79 S.Ct. 1164, 3 L.Ed.2d 1209 (1959) (state cannot require indigent to pay filing fee before permitting appeal); Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (right to free transcript on appeal for indigents).
. “The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client. . .” *266Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).
. Argersinger v. Hamlin, supra, 407 U.S. at 31, 92 S.Ct. at 2009. Accord, Lakeside v. Oregon, 435 U.S. 333, 341, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319 (1978) (“In an adversary system of criminal justice, there is no right more essential than the right to the assistance of counsel.”).
. Despite numerous opportunities, the Supreme Court has never directly confronted the fundamental question of the proper standards and procedures for evaluating challenges to the effectiveness of counsel. See Maryland v. Marzullo, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978) (White, J., with Rehnquist, J., dissenting from denial of certiorari). The Court has come closest to addressing the issue of ineffective assistance in the context of a prisoner’s collateral attack on the voluntariness of his guilty plea. In McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970), for example, the Court stated that a petitioner seeking relief on that ground must demonstrate that the advice of counsel was not “within the range of competence demanded of attorneys in criminal cases.” Id. at 771, 90 S.Ct. at 1449, accord, Tollett v. Henderson, 411 U.S. 258, 266, 93 S.Ct. 1602, 36 L.Ed.2d 235 (1973). But the Court has yet to determine the minimum standard of attorney competence required by the Sixth Amendment’s guarantee of effective assistance of counsel.
. Diggs v. Welch, 80 U.S.App.D.C. 5, 7, 148 F.2d 667, 669, cert. denied, 325 U.S. 889, 65 *267S.Ct. 1576, 89 L.Ed. 2002 (1945); see, e. g„ Jones v. Huff, 80 U.S.App.D.C. 254, 152 F.2d 14 (1945).
. 126 U.S.App.D.C. 336, 379 F.2d 113 (1962).
. Id at 339-340, 379 F.2d at 116-17. In Bruce, the claim of ineffective assistance arose on collateral attack. We noted that “a more powerful showing of inadequacy is necessary to sustain a collateral attack than to warrant an order for a new trial either by the District Court or by this court on direct appeal.” Id at 340, 379 F.2d at 117.
. Scott v. United States, 138 U.S.App.D.C. 339, 340, 427 F.2d 609, 610 (1970) (per curiam).
. 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973). In the subsequent opinions of this court the spelling of appellant’s name has been corrected to “Decoster,” rather than “DeCoster.” References in this opinion to DeCoster I, however, will retain the spelling used in that opinion.
. See Moore v. United States, 432 F.2d 730, 737 (3rd Cir. 1970) (en banc).
. DeCoster I, 159 U.S.App.D.C. at 331, 487 F.2d at 1202 (emphasis in original).
. Decoster’s codefendants also were apprehended near the scene of the crime and were identified subsequently at the police station.
. Crump admitted having had a drink with someone in the bar just before the robbery occurred, but could not specifically remember whether he had met Decoster.
. Decoster was also convicted of assault with a dangerous weapon and received a sentence concurrent when his armed robbery sentence. Trial counsel failed to challenge the legality of this concurrent sentence. On the original appeal in this case, the assault conviction was vacated as a lesser included offense of armed robbery arising from the same act or transaction. DeCoster I, 159 U.S.App.D.C. at 328, 487 F.2d at 1199 n. 2.
. The letter, which was filed in the district court on November 13, 1970, reads as follows:
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 individual of limited education its only natural for me to protect by 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.
Yours truly,
Willie Decoster, Jr.
The district court took no action on Decoster’s letter and apparently made no inquiry into the substance of the charges against his attorney. See note 38 infra.
. Appellant had been incarcerated because he was unable to meet the $5,000 bond set for him, and not because he was deemed to pose a danger to the community. Compare 18 U.S.C. § 3146 with 18 U.S.C. § 3148.
. Defense counsel never did obtain a copy of the preliminary hearing. See pp.---of 199 U.S.App.D.C., pp. 271-272 of 624 F.2d infra.
. Apparently out of exasperation with his lawyer’s inaction, Decoster, coincidentally, prepared his own pro se motion for bond review that same day. Appellant’s motion was filed with the district court on November 16, 1970.
. Defense counsel filed the motion in U.S. District Court. It should have been filed in the D.C. Court of General Sessions, which had originally set bail.
. See 18 U.S.C. §§ 3146(d) & 3147; Grimes v. United States, 129 U.S.App.D.C. 308, 394 F.2d 933 (1967).
. In this bond review motion, counsel did indicate that the Black Man’s Development Center was receptive to third-party custody. That statement, however, was the only change from the motion originally filed in the District Court a month earlier. The motion was denied by the Court of General Sessions on December 12, but the District Court granted the motion and released appellant to the Black Man’s Development Center on Jan. 14, 1971, two days after a continuance was granted in appellant’s trial at the prosecution’s request.
. Decoster’s codefendants had been tried five months earlier. They both pleaded guilty in the middle of their trial to one count of robbery, received suspended sentences of 18 months to 5 years, and were placed on 5-years probation.
. Transcript of Nov. 15, 1971 (Tr. I) at 5.
. Eley was committed to the D.C. Jail on November 3, 1971, pursuant to a bench warrant for probation violation issued on October 8, 1971.
. Taylor’s address was found from a personal recognizance release form filed with the court 11 months earlier. This address proved to be out of date, however, and the belated effort to locate him was unsuccessful.
. Despite the trial court’s directive, counsel initially was willing to wait until “later in the day” to prepare the subpoenas. Only when the trial judge pointed out that the subpoenas could be processed during the trial preliminaries did counsel move to have them prepared. Tr. I at 9-10. Even then, however, the subpoenas were not issued until after the first day of the two-day trial.
. The following colloquy occurred:
[U.S. ATTORNEY]: There was a notice filed under Rule 87 of the Local Rules, Your Honor, an alibi notice demand, to which the government has not yet received a response so I take it from that that there is no alibi defense in this case.
[DEFENSE COUNSEL]: If the court please, ... I feel this motion at this time should be denied because we have not had the time under the statute to comply with the demand as made by the rules.
THE COURT: Well do you intend to rely on alibi?
[DEFENSE COUNSEL]: We may.
THE COURT: Well you did announce ready for trial, [counsel], and if you are going to rely on an alibi then you must know the witnesses that you are going to use as alibi witnesses. You announced ready.
[DEFENSE COUNSEL]: If the Court please—
THE COURT: Look, I am not forgiving [the U.S. Attorney] for not filing his motion under Rule 87 timely, but nevertheless it seems to me that if you have your witnesses ready for trial there seems to be no reason why you shouldn’t be able to give him the names of the people you intend to call as alibi witnesses at this time.
[DEFENSE COUNSEL]: We will proceed without the alibi witnesses. We will consider we don’t have alibi witnesses.
Tr. I at 6-8.
. Tr. I at 13. Decoster’s codefendants pleaded guilty after the prosecution had presented its case. The district judge not only presided over the codefendant’s trial, but also read the probation office reports on the codefendants prior to sentencing them in September, 1971. Tr. I at 18.
. Tr. I at 15.
. Tr. I at 16. In urging the appointment of new counsel, defense counsel explained:
[DEFENSE COUNSEL]: If the court please, counsel has been in this position prior to this time where the defendant has become unhappy with counsel. Over many years in the practice of law before this court I know this situation comes up, but I do think this is perhaps an unusual dissatisfaction with counsel .... I feel if Your Honor would permit me to withdraw and appoint another counsel in the case for whom the defendant may have a greater regard or with whom he would have more rapport, it would be to his best interests in the long run in the appellate procedures.
Tr. I at 19.
. THE COURT: But I haven’t found any grounds for relieving you of your assignment, [counsel]. You tell me you have prepared the case.
[DEFENSE COUNSEL]: Right. I am ready to go forward.
THE COURT: You are ready to go forward.
Id. Although appellant has not challenged his conviction on this basis, it is firmly established that when the defendant makes a pretrial challenge to the adequacy of counsel’s representation, the trial court is obligated to inquire into the substance of the defendant’s allegations. See, e.g., United States v. Woods, 487 F.2d 1218, 1220 n.2 (5th Cir. 1973) (trial court has responsibility to make inquiry of defendant and appointed counsel concerning defendant’s claim of lack of preparation); United States v. Young, 482 F.2d 993, 995 (5th Cir. 1973) (reversible error for trial judge not to conduct thorough inquiry into source and factual basis of defendant’s complaint; error held harmless because defendant’s claim later shown to be insubstantial); Sawicki v. Johnson, 475 F.2d 183, 184 (6th Cir. 1973) (per curiam) (thorough investigation of defendant’s allegations required); United States v. Morrissey, 461 F.2d 666, 669-70 & n.6 (2d Cir. 1972) (perfunctory inquiry into truth and scope of defendant’s allegations, without more, constitutes reversible error; held harmless because defendant’s claims were either invalid or cured by subsequent actions of attorney and judge); United States v. Seale, 461 F.2d 345, 359-60 (7th Cir. 1972) (failure to inquire into basis of defendant’s dissatisfaction with counsel is abuse of discretion); Brown v. Craven, 424 F.2d 1166, 1170 (9th Cir. 1970) (trial court obligated to conduct inquiry necessary to ease defendant’s “dissatisfaction, distrust, and concern” for adequacy of court-appointed counsel’s representation); Monroe v. United States, 389 A.2d 811 (D.C.App.1978) (Sixth Amendment imposes affirmative duty on trial court to conduct inquiry into defendant’s pretrial allegations of counsel’s lack of ability or preparedness; inquiry must be on record and findings of fact must be sufficient to permit meaningful appellate review). In Brown v. United States, 105 U.S. App.D.C. 77, 264 F.2d 363 (en banc), cert. denied, 360 U.S. 911, 79 S.Ct. 1299, 3 L.Ed.2d 1262 (1959), this court considered the scope of the trial judge’s obligation to inquire into the defendant’s objection to counsel. In his concurrence, Chief Justice (then Judge) Burger summarized the grounds of common agreement between the majority and dissenting opinions:
[W]hen, for the first time, an accused makes known to the court in some way that he has a complaint about his counsel, the court must rule on the matter. If the *271reasons are made known to the court, the court may rule without more. If no reasons are stated, the court then has a duty to inquire into the basis for the client’s objection to counsel and should withhold a ruling until reasons are made known.
Id., 105 U.S.App.D.C. at 83, 264 F.2d at 369 (Burger, J., concurring). See also United States ex rel. Martinez v. Thomas, 526 F.2d 750, 755 (2d Cir. 1975); United States v. Catabro, 467 F.2d 973, 986 (2d Cir. 1972), cert. denied, 410 U.S. 926, 93 S.Ct. 1358, 35 L.Ed.2d 587 (1973); Farrell v. United States, 391 A.2d 755 (D.C.App.1978).
Trial court inquiry into the basis of the defendant’s objections is, of course, consistent with the Supreme Court’s admonition that “judges should strive to maintain proper standards of performance by attorneys who are representing defendants in criminal cases ..” McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970). Moreover, an investigation into the substance of the defendant’s complaint at the time it is first tendered obviates several of the difficulties appellate courts may later encounter when undertaking such inquiry. Only the trial court can conduct a full evidentiary hearing to explore the substantiality of the defendant’s allegations. When the defendant charges that counsel is unprepared for trial, counsel’s investigative efforts can be ascertained and evaluated without reference to subsequent developments and later-acquired knowledge. Unlike postconviction appellate review, this inquiry is not clouded by the possibility that the defendant’s claim may have been motivated simply by his conviction at trial. And pretrial scrutiny of the defendant’s charges not only reduces the likelihood of a postconviction ineffective assistance claim. It also creates a record that reviewing courts can rely upon when an ineffectiveness claim is raised on appeal.
More importantly, a thorough inquiry at this stage of the proceedings allows the trial court to take preventive action in those cases where the defendant’s objections prove to be well-founded. Ineffective defense advocacy can be deterred at the outset, thereby preventing Sixth Amendment deprivations and maintaining the integrity of the adversary system. Finally, the pretrial inquiry serves interests of judicial economy by helping to eliminate any deficiencies in the representation of counsel before the resources of the judicial system have been invested in a full-blown trial.
. Decoster I, 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973).
. Hearings on appellant’s motion for a new trial were held before Judge Waddy on February 6, 11, and 13, 1974.
. Remand Transcript, Feb. 6, 1974 (R.Tr. I) at 42; District Court Findings of Fact and Conclusions of Law on Remand, April 23, 1975 (Findings) at 8-9. The two officers and the complainant were the prosecution’s only witnesses at trial. Crump, the victim, testified that three men accosted him on the night of the robbery; one assailant yoked him from behind, another rummaged through his pockets and removed his wallet containing $110, and the third stood a few feet in front of him holding a knife. When shown a knife by the prosecutor, Crump could not identify it, but said that it looked like the one used in the robbery. Because Crump’s eyesight and memory had been damaged in an automobile accident shortly after the robbery, he was unable to identify Decoster at trial or provide further details. He did remember, however, that on the night of the robbery he had identified all three of the men who had been arrested.
At trial Officer Box identified Decoster as the man he had seen going through Crump’s pockets and testified that he had chased appellant into the D.C. Annex, never losing sight of him. Box also stated that he had not observed a weapon being used during the robbery. The second police officer, Officer Ehler, also identified Decoster as the man rummaging through Crump’s pockets. He said that he had chased, arrested and searched Earl Taylor, the lookout, and had found a straight razor in his pocket. Ehler made no mention of having seen a weapon during the crime, however. Ehler also testified that although all three men were searched at the time of the arrest, the items alleged to have been stolen were never recovered.
. R.Tr. I at 44.
. R.Tr. I at 37.
. Counsel testified, however, that he had no notes of his conference with Eley. R.Tr. I at 39. And the remand hearings produced conflicting testimony on whether Eley had been interviewed. Eley and Decoster, who were together at the time counsel claimed to have interviewed Eley, both remembered counsel having visited the cellblock. But appellant did not recall that Eley had been interviewed, id. at 64-65, 72, and Eley denied ever having spoken to counsel before trial, Remand Transcript, Feb. 13, 1974 (R.Tr. Ill) at 82-84. The district court, without elaborating, found Eley’s testimony “incredible” and credited that of trial counsel. Findings at 14.
. R.Tr. I at 34. Only one witness, Officer Ehler, testified at the preliminary hearing, held 17 months before trial. Counsel testified that he noticed no discrepancy between Ehler’s testimony at trial and at the preliminary hearing, R.Tr. I at 35, 41. At least one significant contradiction did exist, however. See note 106 infra.
. Counsel remembered having conferences with one of the government prosecutors handling Decoster’s case, Daniel Toomey, and suggested that Toomey might have shown him a copy of the transcript. R.Tr. I at 40. But the preliminary hearing transcript was not even ordered by the U.S. Attorney’s Office until after Toomey had handed the case over to another prosecutor. Remand Transcript, Feb. 11, 1974 (R.Tr. II) at 11, 19.
. Counsel similarly assumed that, following his usual practice, he had obtained appellant’s arrest record at the police department, although again he could not state definitely that he had done so in appellant’s case. Counsel could not find a copy of the arrest record in his files, however. R.Tr. I at 46-47.
The two U.S. Attorneys who had handled Décoster’s case were also called as witnesses. Although neither could remember any particular conference with defense counsel about appellant’s case, both did testify that they had frequently discussed counsel’s cases with him. R.Tr. II at 10, 17-18. One prosecutor stated further that counsel’s usual practice on many afternoons was to jump “in and out” of the prosecutors’ offices to speak informally to them regarding discovery. Id. at 13. This prosecutor also confirmed that his files showed that Decoster’s preliminary hearing transcript had been ordered on October 29, 1971, id. at 12, and that it was his practice to show the transcript to a defense attorney whenever it was requested. Id. at 12, 13.
Since the remand hearings were held over two years after Decoster’s trial, it is not surprising that none of the attorneys involved could recall from memory whether any discovery was conducted. What is surprising, if not shocking, is that none of the participants had any notation in their files of any discovery having been made; indeed, none of the participants appear to have maintained any records of the pretrial discussions and exchanges of information in appellant’s case. If only as a matter of good officekeeping, defense counsel should have recorded exactly when and what he saw of the prosecutor’s files. And certainly it is not unreasonable to expect the prosecutor to note in his own records that certain information was made available to defense counsel. But because no records were kept by either party, the only evidence of counsel’s discovery efforts consists of vague recollections and tentative testimony about the attorneys’ “usual practice” in such cases. When the attorneys involved may be handling up to 300 different cases in a year, see note 89 infra, reliance on such testimony to support a finding that full discovery was conducted in any specific case seems particularly inappropriate.
. This was the substance of appellant’s testimony at trial, as well.
. The exact date on which counsel received Decoster’s letter is the subject of considerable dispute. Counsel claimed to have received the letter “either the day, or two, before trial, or on the date of trial [November 15, 1971].” R.Tr. I at 24. Although the letter was not dated, it indicates that it was sent from the D.C. Jail dormitory, in which Decoster had been confined from June to November, 1970, and then *273again for three weeks in September, 1971. Appellant did not remember writing any letters during his second period in the dormitory, and thought he might have written the letter sometime from May to November, 1970. Id at 58-61. Despite Decoster’s testimony and the address on the letter, the district court apparently credited counsel’s recollection of when he had received it. See Findings at 12.
. This “self-defense” version is consistent with appellant’s letter to the district judge in November, 1970, see note 22 supra, and with Eley’s testimony at trial. The letter’s account, however, differs from appellant’s own testimony at trial. When confronted with this contradiction at the remand hearings, Decoster reaffirmed his trial testimony and claimed that the letter was a fabrication. R.Tr. I at 70-71.
. R.Tr. I at 29.
. Counsel was unaccompanied when he interviewed Eley and counsel obtained no written statement from Eley. In fact, counsel testified that he did not even take notes of the conference. Thus, we have only the conflicting testimony of defense counsel, Eley, and Decoster as to what occurred. See note 44 supra.
. Ironically, counsel noted at the remand hearing that “[ijt’s a cardinal rule with defense counsel that they never put on a witness unless they know what a witness is going to say and I would never have put on Eley unless I knew what he was going to say.” R.Tr. I at 40.
At trial, counsel made no effort to bring to the court’s attention the apparent conflict between Eley’s proposed and actual testimony. This failure suggests either that, contrary to counsel’s claim in the remand hearing, R.Tr. I at 40, counsel never obtained assurances from Eley as to his testimony, or that counsel negligently failed to impeach Eley’s damaging testimony at trial.
. At the remand hearings, counsel said that he believed he had advised appellant of the consequences of requesting trial by the same judge who had heard evidence against his codefend-ants. R.Tr. I at 37.
. R.Tr. I at 45-46.
. Appellant’s brief presses one additional claim: counsel’s failure to object to the defendant’s appearance before the jury in jail clothes. It is firmly established that an accused cannot, over his objection, be compelled to go to trial in prison clothing. See, e.g., Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976); Gaito v. Brierley, 485 F.2d 86 (3rd Cir. 1973); Bentley v. Crist, 469 F.2d 854 (9th Cir. 1972); Hernandez v. Beto, 443 F.2d 634 (5th Cir.), cert. denied, 404 U.S. 897, 92 S.Ct. 201, 30 L.Ed.2d 174 (1971); Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967); cf. United States v. Carter, 173 U.S.App.D.C. 54, 522 F.2d 666 (1975). See also American Bar Association Project on Minimum Standards for Criminal Justice, Trial by Jury § 4.1(b) (Approved Draft 1968). Forcing the accused to appear in jail clothes not only violates his due process right to the presumption of innocence, but also implicates the equal protection guarantee because it generally operates only against those who cannot post bail prior to trial. See Estelle v. Williams, supra, 425 U.S. at 503-06, 96 S.Ct. 1691. Because the Supreme Court has held that “the failure to make an objection to the court as to being tried in such clothes, for whatever reason, is suffi-*274dent to negate the presence of compulsion necessary to establish a constitutional violation,” id. at 512-13, 96 S.Ct. at 1697 the need for counsel to safeguard his client’s rights by voicing objection at trial is imperative. Appellate counsel, however, did not raise this issue before the district court in his motion for a new trial. Consequently, the record is barren of what considerations, if any, underlay trial counsel’s “decision” not to object. Although we cannot speculate on why trial counsel failed to object, his inaction on this matter certainly reflects the tenor of his general performance in this case.
. The district judge pointed to these seven allegations (as does the majority here) and treated them essentially as if each was asserted to be an independent event constituting ineffective assistance in and of itself. This is not the nature of appellant’s claim. By isolating specific examples of counsel’s alleged ineffectiveness, and then dismissing each of these breaches as either excusable or inconsequential, the trial judge and my colleagues totally ignore their aggregate effect on the quality of counsel’s performance. This case does not present a series of isolated omissions and failures by counsel; it is a picture of pervasive indifference and incompetent representation — only some of which is visible in the record and manifested in the specific allegations brought by appellate counsel.
. At the remand hearings, appellant alleged that trial counsel had been deficient in not ensuring that Decoster’s sentence was properly executed. (Appellant had not been given credit for the time he spent in custody prior to trial. As a result of a motion filed on June 19, 1972 in the district court by appellate counsel appointed by this court, the Department of Corrections clarified Decoster’s sentence and credited him with the time previously served.) On April 23, 1975, in announcing its Findings, the district court rejected this sentencing-failure claim on the ground that counsel’s representation of the defendant had been completed at the time this issue arose. Findings at 17. See Local Rule 2-3(a)(2), United States District Court for the District of Columbia.
. The district court labeled the waiver of opening argument “an informed tactical judgment on the part of defense counsel.” Findings at 17. The court also found that it was the defendant who demanded to be tried by the court despite counsel’s “inclinations” to have a jury trial. Id. at 15. Curiously, my colleagues find appellant’s claim on this ground to be “frivolous” because he was in fact tried by a jury. But the point is that Decoster did not want a jury trial. Had counsel known prior to the morning of trial that the district judge would be forced to disqualify himself, successful arrangements might have been made to have Decoster’s case heard by a different judge — and without a jury, as Decoster had requested.
The majority relies upon our great admiration and respect for the late Judge Waddy— which is shared by all the members of this court — to speculate that the appellant wanted Judge Waddy to hear the case with or without a jury, notwithstanding his participation in the earlier trial of appellant’s codefendants. But the record shows only that appellant asked to be tried without a jury, and there is no indication whatsoever that he particularly wanted his trial to be before Judge Waddy. In fact, even after counsel requested that Judge Waddy disqualify himself, the defense reasserted its desire to be tried without a jury, thus indicating that a trial without a jury was its primary, if not only, concern. Tr. I at 13-14.
. The district court concluded that although counsel was “dilatory” in filing the motion and “erred” in filing it in the wrong court, his actions “did not, in the slightest degree, 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.” Id. at 6. The district court also found that counsel knew what the transcript contained from his representation of Decoster at the preliminary hearing. Further, the court did not find any substantial variation between Ehler’s testimony at the hearing and at trial. Id. at 7-8. But see note 106 infra.
. With respect to these allegations, the court concluded:
l * * *
[T]his Court finds that while the proper and prudent course for [counsel] was to have interviewed the complaining witness, the police officers and the co-defendants prior to announcing “Ready”, his failure to do so in this particular case does not add up to ineffective assistance of counsel warranting a new trial.
2. While it may be that defense counsel herein was lax in his duty to conduct as thorough a factual investigation as might have been possible, we find that counsel did raise the only defense available to him, which defense was putting the government to its proof. And in light of Decoster’s posture and attitude during the course of these proceedings, this Court cannot say that defense counsel substantially violated any one of the duties owed to his client.
* * sfe * * *
3. Further, considering the record in toto, while it might appear that defense counsel was less than a “diligent conscientious advocate,” the weight of the government’s case at trial and supported on the hearing on remand convinces this Court that Decoster was not prejudiced thereby and not denied the “reasonably competent assistance of an attorney” under the circumstances.
Id. at 19-20.
. 159 U.S.App.D.C. 326, 487 F.2d 1197 (1973). Although the division of this court in today’s decision places our previous ruling in DeCoster I in question, a majority of the court today explicitly reaffirms the standard adopted in that opinion: a defendant is entitled to the reasonably competent assistance of an attorney acting as his diligent conscientious advocate. See Statement of Wright, C. J.; Opinion of MacKinnon, J. at p. - of 199 U.S.App.D.C., at p. 222 of 624 F.2d & n.11. Cf. People v. Pope, 23 Cal.3d 412, 152 Cal.Rptr. 732, 590 P.2d 859 (1979) (adopting DeCoster I formulation). Where today’s decision departs from DeCoster I is in the consequences that are held to flow from counsel’s violation of a duty to his client. Regardless of the future vitality of DeCoster I as precedent within this Circuit, however, I continue to believe that the principles and analysis in that opinion should govern our approach in this and other ineffectiveness claims.
. DeCoster I articulated the following duties owed by counsel to a client:
In General — Counsel should be guided by the American Bar Association Standards for the Defense Function. .
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. .
(3) Counsel must conduct appropriate investigations, both factual and legal, to determine what matters of defense can be developed. . . . [I]n 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 (footnotes omitted.)
. DeCoster I, 159 U.S.App.D.C. at 332, 487 F.2d at 1203.
. The duties set forth in DeCoster I are similar to those promulgated by the Fourth Circuit in Coles v. Peyton, 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968):
Counsel for an indigent defendant should be appointed promptly. Counsel should be afforded a reasonable opportunity to prepare to defend an accused. Counsel must confer with his client without undue delay and as often as necessary, to advise him of his rights and to elicit matters of defense or to ascertain that potential defenses are unavailable. Counsel must conduct appropriate investigations, both factual and legal, to determine if matters of defense can be developed, and to allow himself enough time for reflection and preparation for trial.
. American Bar Association Project on Standards for Criminal Justice, The Prosecution Function and the Defense Function (App. Draft 1971) [Defense Function Standards hereinafter cited as ABA Standards], The ABA House of Delegates approved the second edition of the Defense Function standards on February 12, 1979. The new edition reflects the work of the ABA, its consultants, and representatives from approximately fifty nationwide groups interested in the improvement of American criminal justice. See Foreword to American Bar Association Standards Relating to the Administration of Criminal Justice, Prosecution and Defense Function (2d ed., approved draft without commentary 1979). By adopting the second edition of the Defense Function standards, with only one deletion from the first edition, both the ABA Standing Committee on Association Standards for Criminal Justice and the ABA House of Delegates have reaffirmed the continued validity of these standards as a “national norm” for measuring the effectiveness of counsel. See Hodson, Revising the Criminal Justice Standards, 64 A.B.A.J. 986, 987 (1978).
. ABA Standards at § 1.1(f) (2d ed. at § 4-1.-1(f)) (cited in DeCoster I, 159 U.S.App.D.C. at 332, 487 F.2d at 1203 n.25).
. DeCoster I, 159 U.S.App.D.C. at 332, 487 F.2d at 1203 n.25.
. The courtroom performance of an attorney, for example, ordinarily involves many tactical and strategic judgments that are not subject to categorical prescriptions. See Estelle v. Williams, 425 U.S. 501, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976). Tasks such as juror voir dire, witness selection, evidentiary objections, direct and cross-examination, opening and closing argument, and preparation of jury instructions may often be handled differently; what is reasonable in one case may be questionable in a different factual setting.
. Judge MacKinnon correctly notes that the Advisory Committee that authored the ABA Standards did not propose them "as a set of per se rules applicable to post-conviction procedures.” ABA Standards at 11. As the Committee explained, “[t]he standards have been drawn with their primary impact on the conduct of prosecutors and defense counsel in mind. The larger considerations involved in a determination of whether the conduct of a prosecutor or defense lawyer was such that a conviction should be overturned are beyond the scope of the Committee’s work.” Id. The Committee did suggest, however, that its recommendations might prove useful “in providing a yardstick for the evaluation of the effectiveness of a lawyer’s conduct when it is called into question by an attack on the validity of a conviction because of his performance.” Id. at 10.
Moreover, the Committee stressed that its proposals would contribute nothing to the administration of justice if viewed as “mere paper standards.” Noting that the Bar and judiciary had long been woefully lax in adequately enforcing appropriate standards of professional and ethical conduct, the Committee warned that “departures from authoritative professional standards” should no longer be tolerated. Id. In this regard, it is significant that the ABA characterized its proposals as “standards” rather than “guidelines.”
. 159 U.S.App.D.C. at 333 n.23, 487 F.2d at 1203 n.23.
. In United States v. Pinkney, 179 U.S.App.D.C. 282, 290, 551 F.2d 1241, 1249 (1976), this court recognized that “[i]n order to properly fulfill his responsibilities, counsel’s energies and resources should be directed as fully to the dispositional phase of the proceedings as to pretrial preparation and courtroom advocacy.” Accordingly, we extended DeCoster I by setting forth minimum standards for effective representation at sentencing. Specifically, we imposed upon counsel the duty to familiarize himself with all sentencing reports in advance of the sentencing hearing, as well as the duty to confer with his client during the presentence period in order to keep the client fully informed and to ascertain his views of the dispositional alternatives and their implications. Id., 179 U.S.App.D.C. at 290-91, 551 F.2d at 1249-50. See United States v. Martin, 154 U.S.App.D.C. 359, 370-72, 475 F.2d 943, 954-56 (1973) (Bazelon, C. J., dissenting); ABA Standards § 8.1 (2d ed. § 4-8.1) (Sentencing). See also Gadsden v. United States, 223 F.2d 627, 630 (1955) (“The right to effective assistance of counsel at the sentencing stage of the proceeding is guaranteed by the Constitution.”), cert. denied, Hines v. United States, 350 U.S. 949, 76 S.Ct. 324, 100 L.Ed. 827 (1956).
. See Part IIIB, infra.
. DeCoster I, 159 U.S.App.D.C. at 333, 487 F.2d at 1204.
. ABA Standards at 225. See ABA Standards § 4.1 (2d ed. § 4-4.1) (Duty to Investigate).
. See ABA Standards at 224 (“In our system of justice a trial is not an inquiry to expose previously unknown facts.”).
. See United States v. Ash, 413 U.S. 300, 316-17, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), quoting United States v. Bennett, 409 F.2d 888 (2d Cir.), cert. denied, [Haywood v. United States; Jessey v. United States], 396 U.S. 852, 90 S.Ct. 113, 117, 24 L.Ed.2d 101 (1969).
. ABA Standards at 224. See Moore v. United States, 432 F.2d 730, 739 (3d Cir. 1970) (en banc) (“[R]epresentation involves more than the courtroom conduct of the advocate. The exercise of the utmost skill during the trial is not enough if counsel has neglected the necessary investigation and preparation of the case or failed to interview essential witnesses or to arrange for their attendance.”).
. A. Amsterdam, B. Segal & M. Miller, Trial Manual for the Defense of Criminal Cases § 106 (3d ed. 1976) (emphasis added).
. Congress has recognized the critical importance of adequate pretrial investigation through the adoption of the Criminal Justice Act. That Act provides that:
Counsel for a person who is financially unable to obtain investigative, expert, or other services necessary for an adequate defense may request them in an ex parte application. Upon finding, after appropriate inquiry in an ex parte proceeding, that the services are necessary and that the person is financially unable to obtain them, the court, or the United States magistrate if the services are required in connection with a matter over which he has jurisdiction, shall authorize counsel to obtain the services.
18 U.S.C. § 3006A(e)(l) (1976). The statute has been interpreted to authorize payments in those circumstances “in which a reasonable attorney would engage such services for a client having the independent financial means to pay for them.” United States v. Bass, 477 F.2d 723, 725 (9th Cir. 1973). Accord, United States v. Theriault, 440 F.2d 713, 717 (5th Cir. 1971) (Wisdom, J., concurring), on appeal after remand, 474 F.2d 359 (per curiam), cert. denied, 411 U.S. 984, 93 S.Ct. 2278, 36 L.Ed.2d 960 (1973). See also Mason v. State of Arizona, 504 F.2d 1345, 1354 (9th Cir. 1974), cert. denied, 420 U.S. 936, 95 S.Ct. 1145, 43 L.Ed.2d 412 (1975) (“a state court should probably view with considerable liberality a motion for such pre-trial assistance”); United States v. Tate, 419 F.2d 131, 132 (6th Cir. 1969) (“Congressional purpose in adopting this statute was to seek to place indigent defendants as nearly as may be on a level of equality with nonindigent defendants in the defense of criminal cases”); Pye, The Administration of Criminal Justice, 66 Colum.L.Rev. 286, 291 (1966) (describing the investigative provisions of the CJA as one of the Act’s chief purposes).
Despite the availability of CJA funds both for hiring independent investigators and for compensating counsel who perform such services themselves, few court-appointed counsel make use of the Act to support investigations on behalf of their clients. In fiscal year 1975, for example, the D.C. Superior Court issued CJA orders appointing counsel in 12,130 adult cases (felonies and misdemeanors) and 5,167 juvenile cases. Yet payments were made to investigators in only 109 adult and 13 juvenile cases. (The Public Defender Service, which has a full-time investigative staff, handled an additional 212 investigations for court-appointed counsel.) In 1976, the figures were comparable: of 13,-536 adult and 5,337 juvenile cases, investigative payments were made in 386 and 255 cases, respectively (with the Public Defender Service providing aid in an additional 156 cases).
*279One explanation for the infrequency with which court-appointed counsel request investigative expenses is their fear, often reinforced by comments from trial judges, that any money spent on such services will eventually be subtracted from the remuneration the attorneys themselves would otherwise receive. See Ta-gue, The Attempt to Improve Criminal Defense Representation, 15 Am.Crim.L.Rev. 109, 131 (1977); Austern-Rezneck Report, supra note 3, at 45. Moreover, the Criminal Justice Act itself, by compensating attorneys at rates of $30 per hour for time expended in court and only $20 per hour for out-of-court time, provides a disincentive for counsel to perform their own investigatory work. See 18 U.S.C. § 3006A(d)(l) (1976).
. See generally G. Shadoan, Law and Tactics in Federal Criminal Cases 7 (1964); Young Lawyers Section, D.C. Bar Ass’n, 11th Annual Criminal Practice Institute — Trial Manual §§ 2.1, 2.12 (1974).
. While the majority properly notes that the Constitution contains no mandate that counsel “leave not the smallest stone unturned,” Opinion of Leventhal, J., at - of 199 U.S.App.D.C., at 210 of 624 F.2d, Decoster’s attorney did not turn over even the largest boulder.
. “[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.” DeCoster I, 159 U.S.App. D.C. at 333, 487 F.2d at 1204.
. See A. Amsterdam, B. Segal & M. Miller, supra note 79, § 95.
. Despite the obvious value of a transcript of appellant’s preliminary hearing for use in impeaching the prosecution’s witnesses, see, e. g., id. §§ 132, 144, counsel ignored his client’s requests and did not even take the simple step of obtaining a copy. See pp.---of 199 U.S.App.D.C., pp. 271-272 of 624 F.2d, supra. Yet, acquiring the ability to impeach government witnesses is particularly crucial when, as the district court here observed, “the only defense available . . was putting the government to its proof.” Findings at 19. See note 106 infra.
. Judge MacKinnon notes that there was no assurance that the prosecution witnesses would have consented to interviews by defense counsel. Opinion of MacKinnon, J., at-of 199 U.S.App.D.C., at 238 of 624 F.2d. Unfortunately, due to counsel’s failure even to attempt to obtain interviews, we will never know whether permission would have been granted. (Of course, witnesses — particularly police officers — are the property of neither the prosecution nor the defense, and as citizens they have a moral, if not legal, obligation to talk to defense counsel in order to prevent an unfair trial. Cf. Gregory v. United States, 125 U.S. App.D.C. 140, 369 F.2d 185 (1966) (prosecutor’s advice to witnesses not to talk to anyone unless he was present was unprofessional and denied defendant a fair trial)). But the issue before us is not whether these witnesses would have spoken to counsel upon request, but whether counsel who makes no effort to interview critical prosecution witnesses should be considered to be providing effective assistance to his client.
. Further support for the inference that counsel had not even formulated a coherent defense *280strategy is found in the events that occurred at the outset of trial: the confusion over whether an alibi defense would be presented, the belated efforts to subpoena appellant’s codefend-ants, the offer to waive jury trial, and the failure to make an opening statement. At best, these episodes reflect the futile attempts of a defense attorney to cope with an unfortunate predicament brought about by his own inadequate preparation. At worst, they represent the visible tip of an iceberg of inexcusable attorney failures and oversights.
. DeCoster I, 159 U.S.App.D.C. at 332, 487 F.2d at 1203. Counsel’s duty to confer with his client also includes the obligation to “discuss fully potential strategies and tactical choices . .” Id. See ABA Standards § 3.8 (2d ed. § 4-3.8) (Duty to Keep Client Informed). Although the inquiry on remand focused on counsel’s investigative efforts, two particular revelations indicate that communications between counsel and appellant were minimal. First, at the outset of trial, Decoster requested the court to subpoena his codefendants, explaining that he “didn’t have a chance” to talk to his lawyer about this crucial matter of the witnesses that the defense expected to call. See p. - of 199 U.S.App.D.C., p. 269 of 624 F.2d supra. Cf. ABA Standards § 5.2(b) (2d ed. § 4-5.2(b)) (“The decisions on what witnesses to call . . . are the exclusive province of the lawyer after consultation with his client") (emphasis added).
Further, the letter that Decoster sent his attorney sometime before trial opened with the following sentences: “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.” Supplementary Brief and Appendices for Appellee, at 48. At the remand hearings, counsel indicated that he had no specific recollection of when he last saw appellant before trial, but suggested that he “might have had contact with him within the week before, ten days before.” R.Tr. I at 44. Appellant gave no testimony on this issue.
. Counsel’s failure to investigate and confer with his client more frequently may have resulted from his inability to devote sufficient time to each of his cases. The records of the Administrative Office of the United States Courts reveal that in 1972, the year that De-coster went to trial, his attorney received payments under the Criminal Justice Act totalling $51,098.47 for handling 284 different cases— more than one case for every working day. This total, of course, does not include any criminal and civil cases that Decoster’s attorney may have handled on a retained basis. Compare ABA Standards § 1.2(d) (2d ed. § 4-1.2(d)) (“A lawyer should not accept more employment than he can discharge within the limits of his capacity to give each client effective representation.”).
Unfortunately, many court-appointed counsel maintain unmanageable caseloads, in part because a high-volume business is required to compensate for low fee schedules under the CJA. See, e. g., United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3d Cir. 1970) (court-appointed attorneys were carrying from 600 to 800 cases per year, and often handled 40 to 50 cases a day); Colson v. Smith, 315 F.Supp. 179 (N.D.Ga.1970), aff’d, 438 F.2d 1075 (5th Cir. 1971) (petitioner’s court-appointed counsel was handling approximately 5,000 criminal cases a year); Austern-Rezneck Report, supra note 3, at 11 (eleven D.C. attorneys frequently mentioned as either incompetent or uninterested and overloaded with cases were appointed to a total of 657 felonies, 576 serious misdemeanors, and 60 less serious misdemeanors in one year; one handled 113 felonies and 86 serious misdemeanors; another had 136 felonies and 50 serious misdemeanors); Report on Appointed Counsel Program in D.C. Courts, supra note 3, at 15-17 (in many felonies, less than 10 hours is expended on entire case; some attorneys are handling over 200 felonies per year).
Similar caseload problems often impair the ability of public defender organizations to provide effective assistance. See generally The Center for Defense Services, supra note 3, at 21-23; 4 National Institute of Law Enforcement and Criminal Justice (LEAA), The National Manpower Survey of the Criminal Justice System: Courts 22-24 (1978); NLADA, The Other Face of Justice 29 (1973). In the District of Columbia, the Public Defender Service has attempted to ensure that the quality of its representation does not suffer because of overloaded calendars by adopting limits on the number of cases that any attorney may carry. See Austern-Rezneck Report, supra note 3, at 99-100 (setting maximum of 30 open cases per attorney at any time, 20 in an active posture, and expecting that no attorney will close more than 120 criminal cases annually); id. at 122-23 (recommending similar maximum caseload standards for all CJA counsel). Cf. Wallace v. *281Kern, 392 F.Supp. 834, 848-49 (E.D.N.Y.) (Legal Aid Society’s caseload too high to allow for effective assistance of counsel; Legal Aid enjoined from accepting additional cases until average attorney caseload falls below 40), vacated on jurisdictional grounds, 481 F.2d 621 (2d Cir. 1973), cert. denied, 414 U.S. 1135, 94 S.Ct. 879, 38 L.Ed.2d 761 (1974); Wagner, Colorado Defenders Fight Excessive Caseload, 6 Nat’l Legal Aid & Defender Ass’n Washington Memo 1 (October 1977) (Colorado public defenders refused further appointments because of case overload; judge agreed to assign cases to private counsel until caseload becomes manageable).
. DeCoster I, 159 U.S.App.D.C. at 332, 487 F.2d at 1203. One of the rights that can be protected only by prompt legal action is “the accused’s right to be released from custody pending trial.” Id.
. Counsel’s failure to see that Decoster properly received credit for the 310 days he had been incarcerated prior to his trial on the instant offense is also noteworthy — not because it constituted a specific violation of a duty owed to appellant, but because it illustrates the indifference of counsel to his client’s rights.
. United States v. Pinkney, supra note 72, 179 U.S.App.D.C. at 290, 551 F.2d at 1249. See generally, American Bar Association Project on Minimum Standards for Criminal Justice, Sentencing Alternatives and Procedures (App. Draft 1968).
. Sentencing Transcript, March 3, 1972, at 3.
. Indeed, our position is that a finding of ineffective assistance need not automatically require the reversal of an appellant’s conviction. See notes 121 & 131 infra.
. DeCoster I, 159 U.S.App.D.C. at 330, 487 F.2d at 1201. See, e. g., United States v. Moore, 174 U.S.App.D.C. 113, 529 F.2d 355 (1976); United States v. Brown, 155 U.S.App.D.C. 177, 179, 476 F.2d 933, 935 (1973) (per curiam); Campbell v. United States, 126 U.S. App.D.C. 250, 251, 377 F.2d 135, 136 (1966). By the same token, we have also stressed that “when counsel’s choices are uninformed because of inadequate preparation, a defendant is denied the effective assistance of counsel.” DeCoster I, 159 U.S.App.D.C. at 330, 487 F.2d at 1201.
. Even absent a showing of substantial violation under the Sixth Amendment, the due process clause of the Fifth Amendment guarantees defendants protection against prejudicial errors by their counsel. See note 121 infra.
. 389 F.2d 224, 226 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). See note 65 supra. The duties enumerated in Coles have recently been reaffirmed by the Fourth Circuit as “a definitive, objective description of the competency normally demanded of counsel in certain aspects of their service.” Marzullo v. Maryland, 561 F.2d 540, 544 (4th Cir. 1977), cert. denied, 435 U.S. 1011, 98 S.Ct. 1885, 56 L.Ed.2d 394 (1978).
. This does not mean, of course, that a defendant has no recourse for minor attorney errors not amounting to ineffective assistance. But where counsel’s error amounts to no more than an isolated misstep in an otherwise reasonably competent performance, there are non-constitutional doctrines other than ineffective assistance that are better suited to protect the interests of the defendant. For example, a reviewing court’s authority to notice “[pjlain errors or defects affecting substantial rights,” Fed.R.Crim.P. 52(b), permits this court to address and rectify attorney errors that arise during the course of the trial proceedings, particularly omissions such as the failure to move for the suppression of inadmissible evidence. Under 28 U.S.C. § 2106 (1976), federal appellate courts are empowered to fashion any remedy that is “just under the circumstances.” Cf. Dyer v. United States, 126 U.S.App.D.C. 312, 379 F.2d 89 (1967) (reversing conviction on basis of “misgivings” about counsel’s performance without finding any constitutional violation). And in our supervisory function, we have the responsibility to preserve the orderly functioning of the trial courts and the obligation to protect the rights of the accused. See McNabb v. United States, 318 U.S. 332, 63 S.Ct. 608, 87 L.Ed. 819 (1943). Thus, at least on direct appeal, these doctrines provide ample authority to remedy those errors of trial counsel that may not rise to the level of constitutional violations.
. See United States v. Clayborne, 166 U.S. App.D.C. 140, 509 F.2d 473 (1974) (failure to interview witness justified because client had been in frequent contact with witness).
. Findings at 6, 10. Judge MacKinnon refers to these contacts between the defendant and his attorney as “interviews,” Opinion of Mac-Kinnon, J., at p.-of 199 U.S.App.D.C., at p. 233 of 624 F.2d, but the district court found only that counsel had appeared with appellant in court on six occasions prior to trial. When at trial appellant accused counsel of inadequate representation, counsel asserted that he had conferred regularly with his client. As noted previously, however, the record contains several indications that communications between appellant and counsel were minimal at best. See note 88 supra.
. Judge MacKinnon suggests that counsel acquired further knowledge of the case from the government’s file and the grand jury testimony. Opinion of MacKinnon, J., at-of 199 U.S.App.D.C., at 233 of 624 F.2d. Although it was not established that counsel ever availed himself of the opportunity to examine these materials, even full access to the government file is no substitute for personal interview and investigation. Surely, one cannot believe that the prosecutor will ask — and record the answers to — all or even most of the questions that defense counsel would want answered in preparing the defense.
. Judge MacKinnon apparently would go one step further and require an attorney to refrain from investigation if he believes his client to be guilty. Opinion of MacKinnon, J., at--of 199 U.S.App.D.C., at 239-240 of 624 F.2d. Judge MacKinnon points to the ethical standards of the legal profession that prohibit an attorney from assisting a client who wishes to present false testimony. He also cites Justice (then Judge) Stevens’ statement that when a defendant admits guilt to his attorney, the attorney has no duty to search for a witness who might testify falsely. Id. at - of 199 U.S.App.D.C., at 239 of 624 F.2d. See Opinion of Leventhal, J., at---of 199 U.S. App.D.C., at 209-210 of 624 F.2d (citing passage in full).
But an attorney’s duty not to present perjured testimony is not a mandate to abjure investigation on behalf of his client, as appears to have happened here. In our adversary system it is not the attorney’s role to prejudge the guilt or innocence of his client. And, even in those cases where a defendant admits guilt to his attorney, the attorney must conscientiously gather information to protect the defendant’s interests at all stages of the criminal process. See note 103 and pp.---of 199 U.S.App. D.C., pp. 286-289 of 624 F.2d infra.
. Indeed, a lawyer’s complete, independent investigation is so vital a component of effective representation that even the defendant’s confidential admission of guilt does not affect the obligation and scope of counsel’s duty to investigate. The ABA Standards explicitly state that “[t]he duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty.” ABA Standards § 4.1 (2d ed. § 4 — 4.1). Whether the client decides to plead guilty or to go to trial, investigation is essential in fulfilling the lawyer’s role of raising mitigating factors and obtaining the most favorable disposition for the defendant in the contexts of pretrial release, charging and plea negotiations, argument to the jury, and sentencing. See ABA Standards at 227.
. Such attitudes can only exacerbate what is already a serious problem of defendant mistrust of court-appointed counsel. See, e. g., J. Casper, American Criminal Justice: The Defendant’s Perspective 106-15 (1972); ABA Standards at 197-98; Wice & Suwak, supra note 3, at 171.
. The dangers that can result from excusing counsel’s inadequate representation on the ground that his client’s “guilt is obvious” are vividly illustrated by a series of events occurring shortly after appellant’s trial involving the same attorney whose performance is challenged in the present case. In December 1971, Decoster’s lawyer was appointed to represent another indigent defendant, Samuel A. Saunders, who was accused of purse snatching. (D.D.C., Cr. No. 2004-71). The victim, an elderly woman who owned a restaurant near Saunders’ residence, saw Saunders some five and a half weeks after the robbery, called the police, and had him arrested. Although the Bail Agency recommended release with third-party custody, bond was set for Saunders at $5,000. Decoster’s lawyer filed no motion for bond reduction or review; as a result, Saunders remained incarcerated through the trial and appellate stages. Memorandum of Points and Authorities in Support of Defendant’s Motion for Release Pending New Trial at 2, United States v. Saunders (D.D.C. Cr. No. 2004-71).
Saunders, who spent over 9 years in an institution for the mentally retarded and is half-blind, id., maintained that he was innocent and that he had been working on the day of the robbery. Trial Transcript of March 2, 1972 (Tr.), at 90, 92. Decoster’s lawyer evidently did not believe him; as in the present case, the lawyer apparently conducted no investigation whatsoever. At trial, Saunders’ entire defense consisted of his own testimony. Counsel offered no opening statement. On direct examination, he elicited a statement from Saunders that he had not stolen the purse. Id. at 81. Decoster’s lawyer made no attempt to develop the defense beyond this single denial. On cross-examination, counsel sat silently as Saunders became increasingly confused about whether each question of the U.S. Attorney referred to the day of the robbery or the day of his arrest. Id. at 84-90. Nor did counsel attempt to clarify matters on redirect, despite the prosecutor’s use of this confusion to imply that Saunders was lying. The most critical dereliction, however, was the lawyer’s failure to pursue either in redirect examination or through post-trial investigation, Saunders’ assertion during cross-examination that he had been working for the D.C. Employment Service on the day of the robbery and that “they will verify that date.” Id. at 91.
Not surprisingly, Saunders was convicted and sentenced to 2-6 years. Fortunately, this court appointed a conscientious attorney to represent Saunders on appeal. This lawyer, after reading the transcript of the trial, was disturbed by Saunders’ protestations of innocence, and she had her secretary call the U.S. Employment Service. The labor office checked their records for the date of the robbery and found indisputable documentary proof that Saunders had been working on a Washington Star delivery truck on that day and was nowhere near the scene of the crime. Defendant’s Motion for New Trial with Supporting Affidavits and Memorandum of Points and Authorities in Support Thereof. The district court granted a motion for a new trial based on the newly-discovered evidence and the charges against Saunders were dismissed. In the meantime, Saunders had spent a year in jail for a crime he had not committed.
Saunders, of course, could demonstrate prejudice, even under the majority’s proposed analyses. But there are undoubtedly countless other indigent defendants, like Decoster himself, who are represented with the same callous indifference by court-appointed trial counsel, and who are not fortunate enough to have indisputable evidence, preserved in documentary form, attesting to the prejudice they have suffered. Even if many of these defendants are “probably guilty,” they deserve the effective services of a lawyer who is a “conscientious advocate in their behalf.” And we can achieve this end only by assuring that counsel fulfills the minimum obligations of a competent attorney without regard to his — or our — subjective beliefs about the defendant’s guilt.
. There can be no similar excuse, however, for counsel’s failure to obtain the transcript of Ehler’s testimony at the preliminary hearing. Had counsel done so, he might have been able to turn the officer’s testimony to appellant’s advantage, by noting the discrepancies be*285tween Ehler’s testimony at trial and at the preliminary hearing. Although the district court did not find “any substantial variation” in Ehler’s testimony, there was one glaring inconsistency. At trial, Ehler identified Decoster as the assailant who went through Crump’s pockets. Trial Transcript, Nov. 16, 1971 (Tr. II), at 12. Yet at the preliminary hearing almost a year and a half earlier, Ehler stated that he did not know which of the attackers was holding Crump and which was rummaging through his pockets. Preliminary Hearing Transcript, June 8, 1970 (P.T.), at 8. Although the identity of the assailant responsible for seizing Crump’s wallet is legally immaterial, the obvious and unexplainable discrepancy in Ehler’s testimony could have been valuable in impeaching the officer’s credibility.
Officer Ehler also testified at the preliminary hearing that he had seen Earl Taylor acting as a lookout in the robbery; Ehler did not mention that Taylor had a weapon. Yet at trial, counsel made no attempt to explore the seeming inconsistency between Ehler’s version of the events and that of Crump, who, despite having lost his memory in an automobile accident, stated that Taylor had held a knife on him. Tr. I at 30. In this regard, it might also have been significant that appellant’s codefendants pleaded guilty to robbery, rather than armed robbery, and received significantly lighter sentences than De-coster.
. Also, had counsel investigated the scene of the crime, he might have been able to discover whether it was in fact possible, as Officer Box testified, that the pursuing officer could have followed Decoster from the parking lot and into the hotel lobby without ever losing sight of him.
The majority would excuse counsel’s failure to interview other possible witnesses as well. It is said that the “abstract possibility” that the desk clerk or other possible witnesses at the hotel or bar might have provided useful testimony “is not only speculative but remote in the extreme.” Opinion of Leventhal, J., at p. - of 199 U.S.App.D.C., at p. 211 of 624 F.2d. My colleagues may be correct that no material information could be elicited from such an investigation. On the other hand, it is also possible that the desk clerk was away from his post and had seen appellant enter the lobby. Similarly, he might have confirmed that appellant’s demeanor clearly indicated that he had not been running for any length of time before entering the hotel. These differing conjectures simply prove the main point: Counsel should have investigated and interviewed potential witnesses to determine what they had to offer, so that neither he — nor we — would be compelled to speculate, post hoc, as to what the witnesses would have said.
. Findings at 19.
. Cf. Stokes v. Peyton, 437 F.2d 131, 137 (4th Cir. 1970) (failure to interview cannot be justified by attorney’s belief that testimony would not help).
. The district court and majority opinions emphasize that prior to the letter, appellant had not suggested that his codefendants might be valuable defense witnesses. It is true, of course, that defense counsel often must rely upon his client as a primary source of information, particularly if an alibi defense is alleged and the defendant claims to have been elsewhere. But defense counsel’s duty is to conduct an independent investigation; he cannot limit himself to interviewing only those whom the defendant affirmatively requests to be contacted. Defense counsel knew that Decoster’s codefendants allegedly participated in the robbery and that Decoster claimed that he was not with them. This certainly should have alerted *286counsel to the need to contact them. Furthermore, even after appellant told counsel by letter that his codefendants would support his version of the events, counsel made no effort to contact them. It was Decoster himself who insisted at trial that they be subpoenaed and interviewed.
. In many cases, courts have found ineffective assistance without even inquiring into the communications between counsel and client. A lawyer’s failure to uncover exculpatory evidence that should have been found, or more generally, his failure to make a thorough investigation, has been found to constitute ineffective assistance. See, e. g., McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974); Garton v. Swenson, 497 F.2d 1137 (8th Cir. 1974); Johns v. Perini, 462 F.2d 1308 (6th Cir.), cert. denied, 409 U.S. 1049, 93 S.Ct. 519, 34 L.Ed.2d 501 (1972); Pennington v. Beto, 437 F.2d 1281 (5th Cir. 1971); Andrews v. United States, 403 F.2d 341 (9th Cir. 1968); Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968); Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967); Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963); McLaughlin v. Royster, 346 F.Supp. 297 (E.D.Va.1972); Kott v. Green, 303 F.Supp. 821 (N.D.Ohio 1968); Goodwin v. Swenson, 287 F.Supp. 166 (W.D.Mo.1968); Smotherman v. Beto, 276 F.Supp. 579 (N.D. Tex. 1967).
. Contrary to the assertion by other members of this court that imposing a duty to investigate in this case would be equivalent to requiring counsel to assist the accused in fabricating a defense, investigation is critical for the very reason that it will prevent lawyers from unwittingly presenting perjured testimony, as apparently occurred in this case. Counsel is of course under no duty to fabricate defenses, but a lawyer does have an obligation to make reasonable inquiry into whether any valid defenses do exist. See Jones v. Cunningham, 313 F.2d 347, 353 (4th Cir.), cert. denied, 375 U.S. 832, 84 S.Ct. 42, 11 L.Ed.2d 63 (1963). Moreover, counsel can discover whether the testimony of his client or a witness is truthful only by conducting a complete, independent investigation.
. In addition to the evidence in the trial record, Judge MacKinnon suggests there is evidence that prior to his sentencing, Decoster in effect admitted his guilt in a letter to the trial judge. Opinion of MacKinnon, J., at-of 199 U.S.App.D.C., at 234 of 624 F.2d. Although we do not know what DeCoster said in that letter, it would be a mistake to place too much significance on appellant’s representations at sentencing. Even those defendants who are convinced of their innocence are reluctant to press their contentions before the court at that time out of fear that they will receive a lengthier sentence if they do not accept responsibility and show remorse for their conduct. See Ta-gue, supra note 80, at 123 n.82. Cf. United States v. Grayson, 438 U.S. 41, 50, 98 S.Ct. 2610, 57 L.Ed.2d 582 (1978) (defendant’s apparent truthfulness while testifying on his own behalf is probative of his attitudes towards society and prospects for rehabilitation and hence relevant to sentencing).
. Opinion of Leventhal, J., at - of 199 U.S.App.D.C., at 214 of 624 F.2d. Accord, Opinion of MacKinnon, J., at-&-of 199 U.S.App.D.C., at 234 & 242 of 624 F.2d.
. In discussing the scope of a proper investigation, for example, Judge Leventhal refers to the requirement that information alleged to have been overlooked must be material to the defense. Opinion of Leventhal, J., at-,of 199 U.S.App.D.C., at 210, 211, of 624 F.2d. *287(With this genera] proposition I can agree, although I suspect that in application, my interpretation of what information is material would differ from the majority’s.) Yet in assessing Decoster’s claim that counsel failed to conduct an adequate investigation, Judge Leventhal repeatedly requires the appellant to show not that certain information was material, but that it likely would have affected the outcome. E.g., Opinion of Leventhal, J., at---of 199 U.S.App.D.C., at 212-213 of 624 F.2d. Thus, if appellant was guilty, his lawyer need have conducted no investigation.
Although an inquiry into the effect on outcome — however broadly that term is defined— may be a relevant factor in the question of reversal, it should not bear on the effectiveness of the attorney's performance. See note 131 infra.
. “Prior to trial an accused is entitled to rely upon his counsel to make an independent examination of the facts, circumstances, pleadings and laws involved and then to offer his informed opinion as to what plea should be entered.” Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948). See ABA Standards § 5.1(a) (2d ed. § 4-5.1(b)) (“After informing himself fully on the facts and the law, the lawyer should advise the accused with complete candor concerning all aspects of the case, including his candid estimate of the probable outcome.”).
. See ABA Standards § 6.1(b) (2d ed. § 4-6.-1(b)) (Duty to Explore Disposition Without Trial).
. See Brady v. United States, 397 U.S. 742, 752 n.10, 90 S.Ct. 1463, 25 L.Ed.2d 747 (1969) (reporting estimates that between 90% and 95% of all criminal convictions are by pleas of guilty).
. Santobello v. New York, 404 U.S. 257, 260, 92 S.Ct. 495, 30 L.Ed.2d 427 (1971) (Burger, C. J.).
. The present case highlights the importance of conducting a prompt and thorough investigation. Although no inquiry was made on remand into counsel’s role, if any, in advising appellant on seeking a plea bargain, the record does reveal that the possibility of a plea was raised at some time during the proceedings. R.Tr. I, at 15-16, 18. In light of the utter lack of investigation conducted by defense counsel, and the apparent unfamiliarity of counsel with the circumstances of the offense and the background of his client, there must be serious doubt that he could have offered his client competent advice regarding the acceptance of a possible plea bargain. There must be serious doubt, as well, whether counsel could have capably negotiated with the prosecution on his client’s behalf.
. Separating the inquiry into the adequacy of counsel’s performance from that of prejudice to the defendant reflects the distinction between the Sixth Amendment right to the effective assistance of counsel and the Fifth Amendment right to a fair trial. Although demonstrating a likelihood of prejudice may be required to make out a due process claim under the Fifth Amendment, it should be clear that prejudice is not an element that must be shown in establishing a violation of the Sixth Amendment. See, e. g., Moore v. United States, 432 F.2d 730, 737 (3rd Cir. 1970) (en banc) (“[Tjhe ultimate issue is not whether a defendant was prejudiced by his counsel’s act or omission, but whether counsel’s performance was at the level of normal competency.”). Indeed, this distinction between the Fifth and Sixth Amendment sources of the right to effective assistance was the basis for this circuit’s rejection of the due process “farce and mockery” test in favor of the “reasonably competent assistance” standard. See pp. —---of 199 U.S.App.D.C., pp. 266-267 of 624 F.2d supra.
Judge MacKinnon’s reliance on the line of Fifth Amendment cases to support his view that the defendant must prove “unfair prejudice” is thus misplaced. See Opinion of MacK-innon, J. at---of 199 U.S.App.D.C., at 226-227 of 624 F.2d. Similarly inapposite are those pre-DeCoster I cases in our circuit— e. g., Mitchell, Bruce, Hammonds, Matthews, Harried, Scott — in which, consistent with the Fifth Amendment, the defendant bore the burden of demonstrating that he had been denied a fair trial. The defendant’s due process rights under the Fifth Amendment are simply not coextensive with the Sixth Amendment right to the effective assistance of counsel.
. Anders v. California, 386 U.S. 738, 744, 87 S.Ct. 1396, 1400, 18 L.Ed.2d 493 (1967).
. The majority opinions read United States v. Pinkney, 543 F.2d 908 (1976), as requiring the defendant not only to show a substantial breach of counsel’s duties but also to demonstrate that the violation affected the proceedings’ outcome. The case does not so hold. In fact, Judge Robinson’s opinion in Pinkney carefully distinguished between the appellant’s burden of showing a substantial violation and the government’s burden of proving lack of prejudice to the outcome. Pinkney simply held that as a procedural prerequisite to an evidentiary hearing on a motion for a new trial, id., 177 U.S.App.D.C. at 431, 543 F.2d at 916 n.59, the appellant “must set forth evidence upon which the elements of a constitutionally deficient performance might properly be found.” Id., 177 U.S.App.D.C. at 431, 543 F.2d at 916. Further, “only if evidence offered at a hearing tended to establish the elements would the Government have been summoned to disestablish prejudice.” Id., Ill U.S.App.D.C. at 431, 543 F.2d at 916 n.59. In the present case, appellant has established the elements of a Constitutional violation by demonstrating an unjustifiable violation of counsel’s duty to investigate. In Pink-ney, where there was no claim of inadequate investigation, counsel’s failure to refute the government’s sentencing allocution could have amounted to ineffective assistance only if counsel had failed to discuss the allegations with his client or if counsel had known of information contradicting the government’s allegations but had failed to bring that information to the court’s attention. The petitioner was denied relief because the record contained no evidence to support either hypothesis, not because the petitioner had failed to show prejudice.
Indeed, the only reference in Pinkney to prejudice to the outcome is contained in footnote 59, where the court explicitly stated:
Our conclusion in this regard in no way impinges upon the rule, which we readily reaffirm, that once a substantial violation of counsel’s duties is shown, the Government’s burden is to demonstrate lack of prejudice therefrom. . [I]f . appellant had met these preconditions [i. e„ had offered evidence tending to establish that counsel had failed to inform him of the Government’s allocution memorandum], the Government would then have encoun*289tered the burden of proving that counsel’s dereliction did not harm appellant — for example, because the allocution memorandum actually had no effective role in the sentencing process.
Id.
. 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).
. Id. at 85-86, 96 S.Ct. 1330.
. Judge Leventhal apparently seeks to distinguish Geders on the ground that counsel’s effectiveness had been impeded by “direct state interference,” whereas in the instant case, counsel’s performance is “untrammelled and unimpaired” by state action. See Opinion of Leventhal, J., at — & - of 199 U.S.App. D.C., at 201 & 202 of 624 F.2d. The issue, however, is not whether the state is to be blamed for counsel’s actions, but whether the defendant’s constitutional rights were violated. The Sixth Amendment entitles the accused to the effective assistance of counsel. From the defendant’s perspective, it is difficult to see how the cause of counsel’s derelictions could bear any relationship to the prejudicial effect on the defendant’s interests. Of what possible significance is it to a defendant whether his counsel fails to present closing argument because the court denies him that opportunity, see Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975), or because he foregoes it in order to avoid a parking ticket? See United States v. Benn, 155 U.S.App.D.C. 180, 476 F.2d 1127 (1973).
Moreover, it is difficult to perceive a rational basis for partitioning the continuum of ineffective assistance cases on the basis of governmental “structural or procedural impediments.” State action permeates the entire criminal process. It is the state that formulates and prosecutes the charges against the accused. It is the state that provides the forum for the defendant’s trial and sets the rules that govern those proceedings. It is the state that punishes the convicted offender for his wrongdoing. And, most critically for the indigent defendant, it is the state that provides the assistance of counsel so indispensable to the fair administration of our adversary system of criminal justice. If counsel’s conduct has deprived the defendant of his constitutional rights, then it is the state’s responsibility, through the courts, to vindicate those rights.
. 435 U.S. 475, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978).
. Id. at 484, 98 S.Ct. 1173.
. Judge MacKinnon attempts to account for these and other cases in which the defendant is not required to demonstrate prejudice, see, e. g., Herring v. New York, supra, by characterizing them as cases in which the accused has “actually” been denied the assistance of counsel. Opinion of MacKinnon, J., at - of 199 U.S.App.D.C., at 229 of 624 F.2d. Geders, for example, is interpreted as a case in which, for the period of the overnight recess, the defendant was denied the “actual” assistance of counsel; Holloway is described as a case in which the petitioners were denied “full representation” by counsel. In these situations, Judge MacKinnon explains, the denial of the “actual assistance of counsel” is apparent on the face of the record and further prejudice is not required. In those cases in which counsel has merely provided inadequate assistance, however, the defendant must prove that counsel’s assistance was so ineffective as to constitute the equivalent of non-assistance of counsel. The distinction contained in Judge MacKin-non’s verbal formalism simply does not correspond to the reality of ineffective assistance. Judge MacKinnon nowhere explains why a defendant whose counsel cannot consult with him overnight has been denied the “actual” assistance of counsel, while Decoster’s counsel, who declined to consult with Decoster at all, was providing “actual assistance.” Nor does Judge MacKinnon explain when “full representation” has been denied, much less when such denial is apparent.
I submit that anytime the record reveals that counsel has substantially violated the duties owed to his client, the denial of the “active” assistance of counsel is apparent. The Sixth Amendment demands more than placing a warm body with a law degree next to the defendant. “It has long been recognized that the right to counsel is the right to the effective assistance of counsel.” McMann v. Richardson, supra, 397 U.S. at 771, n.14, 90 S.Ct. at 1449, n.14. “The mere physical presence of an attorney does not fulfill the Sixth Amendment guarantee . . . .” Holloway v. Arkansas, 435 U.S. at 490, 98 S.Ct. at 1182. A defendant is no less harmed when counsel is present but fails to perform the duties owed to his client than when counsel is absent altogether. I fail to see how a defendant is any more damaged by the failure to have an opportunity to consult with counsel during one overnight recess in a ten-day trial than by the near-total failure of his attorney to investigate and consult with him prior to trial. See Cooper v. Fitzharris, 586 F.2d 1325, 1338 (9th Cir. 1978) (en banc) (Huf-stedler, J., with Ely & Hug, JJ., concurring and dissenting) (“It makes little sense to distinguish between cases where counsel is denied and cases where counsel is incompetent because representation by incompetent counsel may be little or not better than no representation at all.”). In either case, the defendant has been denied the effective assistance of counsel; and in neither case does the Sixth Amendment violation hinge on a showing of prejudice.
. A majority of the members of this court today agree that counsel’s performance was at least subject to serious question, if not condemnation. See Opinion of Robinson, J., at-of 199 U.S.App.D.C., at 262 of 624 F.2d; Opinion of Leventhal, J., at-of 199 U.S.App.D.C., at 211 of 624 F.2d. And the trial judge on remand also indicated that he had serious misgivings about counsel’s performance. Findings at 20.
. This approach clearly separates the question of whether the appellant’s Sixth Amendment rights were violated from the question of prejudice. See note 121 supra. This distinction is critical because it recognizes that even in those cases where a new trial is not required because the defendant was not prejudiced, counsel’s performance may still have been ineffective. It thus allows courts to identify and brand as ineffective any conduct falling below the minimum standards of competent lawyer-ing, without regard to the client’s guilt or innocence. This determination should help deter defense counsel from violating the duties owed to their clients. Cf. Opinion of Robinson, J., at --of 199 U.S.App.D.C., at 253 of 624 F.2d.
This Circuit’s early “farce and mockery” test and Bruce's “gross incompetence blotting out a substantial defense” test failed to recognize this distinction between counsel’s ineffectiveness and prejudice to the defendant. Indeed, I now recognize an oversight in DeCoster I, which coalesced these questions when it stated that if “a defendant shows a substantial violation ... he has been denied effective representation unless the government . ‘can establish lack of prejudice thereby.’ ” 159 U.S.App.D.C. at 333, 487 F.2d at 1204 (emphasis added). Instead, the analysis of ineffective assistance should recognize that the question of attorney performance is distinct from the issue of prejudice to the defendant. Cf. McQueen v. Swenson, 498 F.2d 207, 218 (8th *291Cir. 1974) (evaluation of habeas petition alleging ineffective assistance is two-step process: first, determining whether there has been failure to perform some duty owed by defense counsel to his client and, second, determining whether the constitutional error prejudiced the defense); Moore v. United States, supra note 17, 432 F.2d at 737 (“This standard [of normal competency] also makes it clear that the ultimate issue is not whether a defendant was prejudiced by his counsel’s acts or omission, but whether counsel’s performance was at the level of normal competency.”).
. 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).
. Id. at 22, 87 S.Ct. at 827. Prior to Chapman, the Supreme Court had indicated that constitutional violations could never be harmless. See id. at 42^45, 87 S.Ct. 824 (Stewart, J., concurring).
. Id. at 23-24, 87 S.Ct. 824; Fahy v. Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963). This principle is consistent with the constitutional mandate that the government must prove guilt of a criminal offense beyond a reasonable doubt. See Mulla-ney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). Just as a trier-of-fact must find guilt beyond a reasonable doubt, an appellate court must be no less certain that a constitutional violation did not affect the proceedings below.
The reasonable doubt rule is animated by the twin concerns of maintaining an accurate balance between prosecutor and defendant by compensating for systematic flaws in a decision-making process acknowledged to be imperfect, and of introducing a deliberate imbalance into the process consistent with “a fundamental value determination of our society that it is far worse to convict an innocent man than to let a guilty man go free.” In re Winship, supra, 397 U.S. at 372, 90 S.Ct. at 1077 (Harlan, J., concurring). See Underwood, The Thumb on the Scales of Justice: Burdens of Persuasion in Criminal Cases, 86 Yale L.J. 1299, 1306-07 (1977). When we know that an error has been introduced into the adversary adjudicative process through the ineffectiveness of counsel, the justification for tilting the scales toward the defendant is even stronger than when the likelihood of error is merely speculative. See United States v. Burton, 189 U.S.App.D.C. 327, 355, 584 F.2d 485, 513 n.91 (1978) (Robinson, J., dissenting).
. See Coffin v. United States, 156 U.S. 432, 453, 15 S.Ct. 394, 39 L.Ed. 481 (1895) (presumption of innocence “axiomatic,” “elementary,” and “foundation” of administration of criminal law).
. Determining harmlessness by focusing on whether the jury’s verdict is supported by overwhelming evidence is questionable quite apart from the special problems of its application in the ineffectiveness context. First, such an approach usurps the jury’s function to a far greater degree than one that focuses the appellate court’s inquiry on an examination of the nature and effect of the error. Second, lower courts’ findings of harmlessness under an overwhelming evidence test are less subject to consistent and even-handed appellate review. Finally, the overwhelming evidence test is contrary to the principle that constitutional protection is due all citizens, the guilty as well as the innocent. See Field, Assessing the Harmlessness of Federal Constitutional Error — A Process in Need of a Rationale, 125 U.Pa.L.Rev. 15, 33 (1976).
. DeCoster I, 159 U.S.App.D.C. at 333, 487 F.2d at 1204.
. In Holloway v. Arkansas, supra, the Supreme Court explained in the context of a joint representation case why a determination of the prejudice resulting from counsel’s omissions could be founded upon nothing more than impermissible speculation:
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. . . 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 (citations omitted) (emphasis added).
. One of the dangers of attempting to assess the harmlessness of a constitutional error by looking to the evidence of guilt at trial is that counsel’s ineffectiveness may have so distorted the record that the record is an unreliable indicator of the defendant’s guilt. And, as noted in United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (3rd Cir. 1970), changes in circumstances since the time of trial may also make it difficult for the court to determine the presence or absence of prejudice.
. United States v. Hurt, 177 U.S.App.D.C. 15, 21, 543 F.2d 162, 168 (1976). The likelihood that counsel’s omissions will have impaired the defense, combined with the difficulty of proving that fact, have led several other circuits to presume the existence of prejudice in certain situations. See, e. g., United States ex rel. Green v. Rundle, supra, 434 F.2d at 1115; Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968). Such a presumption is often created when counsel is not appointed until the eve of trial. See, e. g., Garland v. Cox, 472 F.2d 875 (4th Cir.), cert. denied, Slayton v. Garland, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Fields v. Peyton, 375 F.2d 624 (4th Cir. 1967).
In United States ex rel. Mathis v. Rundle, 394 F.2d 748 (3d Cir. 1968), the Third Circuit established the rule that belated appointment of counsel was inherently prejudicial and makes out a prima facie case of ineffective assistance, shifting the burden of proving the absence of prejudice to the prosecuting authorities. This rule was applied subsequently in United States ex rel. Chambers v. Maroney, 408 F.2d 1186 (3d Cir. 1969). There the court rejected a habeas petitioner’s claim of ineffective assistance because the record contained adequate affirmative proof that there was no prejudice. On appeal, the Supreme Court affirmed appellant’s conviction, noting that it was “not disposed to fashion a per se rule requiring reversal of every conviction following tardy appointment of counsel . . . Chambers v. Maroney, 399 U.S. 42, 54, 90 S.Ct. 1975, 1982, 26 L.Ed.2d 419 (1970). Although the Third Circuit later jettisoned its presumption-of-prejudice rule because it was no longer needed to effectuate prompt appointments within the circuit, Moore v. United States, supra note 17, it is significant that the Supreme Court left the rule undisturbed in Chambers. See Garland v. Cox, supra, 472 F.2d at 878 (maintaining presumption of prejudice as best way to serve “our notions of justice and fair play”).
Judge MacKinnon’s opinion draws heavily upon the Supreme Court’s language in Chambers to support his view that “a mere breach of duty to an accused is not a constitutional violation [requiring reversal] unless the defendant proves that he was prejudiced.” Opinion of MacKinnon, J., at-of-U.S.App.D.C., at 238 of 624 F.2d (emphasis added). But Chambers merely held that late appointment vel non did not require reversal. The Court’s opinion is silent on the issue of who bears the burden of demonstrating the existence or absence of prejudice. Indeed, in its tacit approval of the lower court’s presumption-of-prejudice rule, Chambers is plainly consistent with the approach prescribed in this opinion: once the defendant has shown a substantial violation of counsel’s duties, the government must rebut the presumption of prejudice by proving that the error was harmless.
. Holloway v. Arkansas, 435 U.S. 475, 488, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978), quoting Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942).
. Where counsel’s inadequate investigation has prevented him from properly advising his client on pretrial matters, the defendant should receive not only a new trial but also an opportunity to engage in plea discussions after discussing the matter fully with informed, competent counsel. In contrast, the appropriate remedy for violations that affect only sentencing is to remand for resentencing rather than a new trial. See United States v. Pinkney, supra note 72, 179 U.S.App.D.C. at 289 n.49, 551 F.2d at 1248 n.49.
. See, e. g., Cooper v. Fitzharris, supra note 129, 586 F.2d 1325, 1334-42 (Hufstedler, J., dissenting); Beasley v. United States, 491 F.2d 687, 696 (6th Cir. 1974). Judge Hufstedler’s dissenting opinion in Cooper does not recognize, as Judge Leventhal implies, that effect on outcome should be pertinent in determining whether a defendant has been denied the effective assistance of counsel. See Opinion of Lev-enthal, J., at-, -of 199 U.S.App.D.C., at 203, 205 of 624 F.2d. Rather, Judge Huf-stedler merely acknowledges the obvious: the potential prejudicial impact of an alleged attorney error may be relevant in assessing the adequacy of representation simply because the greater the impact, the more likely it is that counsel deviated from his obligations. But as Judge Hufstedler clearly states: “This does not mean that prejudice must be shown to demonstrate that counsel was constitutionally ineffec-five.” Cooper v. Fitzharris, supra, 586 F.2d at 1340. Particularly significant in this regard is her observation: “Some courts have confused the inquiry into whether attorney errors were significant enough to constitute ineffective counsel with the question of whether ineffectiveness of counsel affected the outcome of the case.” Id. at 1340 n.18.
. Holloway v. Arkansas, 435 U.S. 475, 489, 98 S.Ct. 1173, 1181, 55 L.Ed.2d 426 (1978), quoting Chapman v. California, supra, 386 U.S. at 23, 87 S.Ct. 824.
. Reversing convictions is likely to have a significant prophylactic effect for several reasons. First, to the extent that trial judges and prosecutors can prevent ineffectiveness from tainting a plea or conviction, they will be encouraged to do so. Second, insofar as ineffectiveness results from indifferent or incompetent lawyers, they will be less likely to receive appointments. Third, in those jurisdictions where ineffectiveness results largely from the unmanageable caseloads of appointed counsel and public defenders, judges will be discouraged from overburdening them. Finally, frequent reversals are likely to attract the attention of the public and may enhance the likelihood of legislative reform. See Part IV, infra.
. In the present case, for example, it may be possible to determine the effect of counsel’s failure to familiarize himself with the preliminary hearing testimony. If the government could prove that there were no significant discrepancies between Officer Ehler’s testimony *294at trial and at the preliminary hearing, but see note 106 supra, then it would be in a position to show that counsel’s failure to obtain the transcript could not have prejudiced Decoster.
. In Cooper v. Fitzharris, supra note 129, for example, the defendant’s claim of ineffective assistance was based primarily on counsel’s failure to move to suppress certain evidence. The defendant in that case was not prejudiced by counsel’s omission, since the evidence was in fact legally admissible under the standards in effect at the time of trial. See id., 586 F.2d at 1333-34. Thus, as the court in Cooper explained, the impact of counsel’s errors “appear[ed] on the face of the trial record. Their prejudicial effect can be evaluated from that record with reasonable certainty. In such a case there is no reason to reverse a conviction if it appears that the defense was not prejudiced by the alleged inadequacies of counsel’s performance.” Id. at 1332.
Because Cooper was limited to the situation in which “the claim of ineffective assistance is founded upon specific acts and omissions of defense counsel at trial,” id. at 1331, the court reasonably inquired into whether any prejudice could have flowed from the alleged errors. But the court seemed to place the burden of demonstrating the absence of prejudice on the defendant, at least where that determination can be made from the record with reasonable certainty. Moreover, the opinion in Cooper is ambiguous regarding whether the absence of prejudice means that counsel was not constitutionally ineffective or simply that nonprejudicial ineffectiveness does not require reversal. See notes 121 & 131 supra.
. Fahy v. Connecticut, supra, 375 U.S. at 86-87, 84 S.Ct. at 230. In United States v. Pinkney, supra note 123, the court indicated that if the appellant had been able to establish a substantial violation of counsel’s duties, then the government would have been given the opportunity to demonstrate that the violation could not have affected the outcome by proving that the allocution memorandum actually had no effective role in the sentencing process. 177 U.S.App.D.C. at 431-32, 543 F.2d at 916-17 n.59.
. If experience should later teach that it is too difficult to assess the impact of counsel’s violations or that interests of judicial economy militate against searching for harmlessness that can rarely be found, then a per se rule requiring automatic reversal should be adopted.
. Chapman v. California, supra, 386 U.S. at 22, 87 S.Ct. 824.
. See note 120 supra. Decoster’s codefend-ants pleaded guilty to one robbery count and received suspended sentences and 5-years probation. Decoster was convicted of armed robbery and was sentenced to 2-8 years. A serious possibility leaps out of this record that some measure of Decoster’s sentence resulted from shoddy legal representation — especially in light of the pervasive indications that counsel for appellant did not seriously attend to the interests of his client.
Judge Robinson, however, would burden the defendant with having to establish the “fact *295and the substantiality of counsel’s asserted violation” before this court could even remand for more evidence on the likelihood of ineffective assistance in defendant’s plea decision. Opinion of Robinson, J., at p. -of 199 U.S.App. D.C., p. 263 of 624 F.2d n.158. But trial counsel can hardly be expected to establish his own incompetence. Moreover, appellate counsel is ordinarily reluctant to impugn the competence of a colleague at bar. Also according to Judge Robinson, evidence of defendant’s amenability to a guilty plea is necessary before an appellate court may consider the inadequacy of counsel’s plea advice. Id. Yet how can it be reasonable to expect a defendant to estimate the advisability of entering a plea when he has never had the benefit of basic investigation and legal advice by counsel?
Our criminal justice system could not at present function without the plea bargain, yet countless cases of inadequate assistance concerning the plea never reach the attention of appellate courts. Although we do not know at this moment whether Decoster was prejudiced by his counsel’s conduct surrounding the plea, the blatant disparity between Decoster’s treatment and that of his codefendants, and the overall record of his attorney’s performance, warrant remand on this issue alone. From the point of view of the fair administration of justice, in the circumstances of this case we cannot ignore the likelihood that defendant’s decision not to plead was made without proper advice.
. See note 29 supra.
. 159 U.S.App.D.C. at 333, 487 F.2d at 1204 (emphasis added).
. Throughout this opinion, I have necessarily limited my discussion to the problem of the representation of the indigent defendant in the criminal process. Inadequate legal assistance for the poor, however, is not confined to the criminal process: it pervades the entire legal system. This reality, no less than ineffective assistance for the criminal defendant, challenges our fundamental belief in equal justice under law.
. Perhaps some view the goal of equal justice as “utopian” and feel that society’s unwillingness to expend the considerable resources required to improve the quality of representation for the poor will doom to failure any efforts in this regard. Perhaps they believe that courts should not promise equality if it cannot be delivered. I cannot agree that the promise of equal justice for all is impossible to attain. And I do not believe that the difficulty of attaining that goal justifies stopping short of the mark. Some of my colleagues would relegate fundamental rights to mere “aspirations.” Aspirations provide little comfort to those, like the poor, who are powerless to fulfill them. Not just “earthbound,” see Opinion of Leven-thal, J., at - of 199 U.S.App.D.C., at 217 of 624 F.2d, but shackled to an approach that has failed in the past, some of my colleagues find it “salutary” to pursue a course that cannot provide “Equal Justice Under Law.”
. In this circuit, the practice of appointing new counsel in many in forma pauperis criminal appeals has significantly improved our ability to monitor trial counsel’s performance. The appellate lawyer can take an objective look at the entire case and can ask the court to examine issues that should have been raised below but were not, including the effectiveness of trial counsel. It is unreasonable to expect that trial counsel will acknowledge the inadequacies of their own performance or that pro se petitions filed by illiterate or semi-literate defendants will be sufficient to uncover Sixth Amendment violations.
. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970).
. The inquiry conducted in this situation would be similar to that mandated when the defendant, at the beginning of trial, challenges his attorney’s capacity to render effective assistance due to his lack of preparation. When such an objection is made, the Sixth Amendment imposes an affirmative obligation on the trial court to inquire into the basis of the defendant’s complaint. See note 38 supra. In Sawicki v. Johnson, supra note 38, the court expressly stated that this investigation should focus on whether counsel fulfilled the obligations enumerated in Coles v. Peyton, supra note 65, duties similar to those established in DeCoster I, see note 63 supra.
. See United States v. Simpson, 154 U.S. App.D.C. 350, 352-58, 475 F.2d 934, 936-42 (1973) (per curiam) (Bazelon, C. J., dissenting), cert. denied, 414 U.S. 873, 94 S.Ct. 140, 38 L.Ed.2d 91 (1973).
. At present, appointed counsel in the District of Columbia Superior Court must submit a Supplemental Voucher Information form with every request for compensation under the Criminal Justice Act, 18 U.S.C. § 3006A (1976). As I have noted in United States v. Simpson, supra note 159, this document could easily be converted into a worksheet to examine counsel’s preparation in the case. A similar form used by the U. S. District Court for the District of Maryland is found in Report of the Judicial Conference of the United States: Jan. 13, 1965, 36 F.R.D. 277, 338 (1965). Several commentators have also suggested checklists of functions defense counsel must perform preparatory to trial. See, e. g., Tague, The Attempt to Improve Criminal Defense Representation, 15 Am. Crim.L.Rev. 109, 164 n.285 (1977); Bazelon, The Realities of Gideon and Argersinger, supra note 3, at 836-38; Finer, Ineffective Assistance of Counsel, 58 Cornell L.Rev. 1077, 1119 (1973).
. Lakeside v. Oregon, 435 U.S. 333, 341, 98 S.Ct. 1091, 1096, 55 L.Ed.2d 319 (1978). The government prosecutor is under no less of a duty to see that the trial conforms to constitutional standards:
The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case, but that justice shall be done.
Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed. 1314 (1935).
. Opinion of Leventhal, J., at - of 199 U.S.App.D.C., at 208 of 624 F.2d. My colleagues also fear that an inquiry into counsel’s performance will undercut the attorney-client relationship. When the inquiry is conducted upon the defendant’s post-trial motion for relief and after counsel’s representation has concluded, then of course any concerns about the attorney-client privilege evaporate. See ABA Standards § 8.6(c) (2d ed. § 4-8.6(c)); ABA Code of Professional Responsibility, DR 4-101(D). But even if conducted at or before trial, the judge’s inquiry need not cut so deeply that it invades the attorney-client relationship. When it appears that defense counsel has overlooked a valid defense or has made a major blunder, the trial judge need only ask whether counsel has an informed tactical reason for his actions. If so, then the inquiry need go no further; if not, then any deeper intervention would be welcomed by the defendant. We must remember that the attorney-client privilege is designed to protect the client, not the attorney. It is incongruous to suggest that the sanctity of that privilege should act as a shield to block efforts at safeguarding the defendant’s rights.
. DeCoster I, 159 U.S.App.D.C. at 331, 487 F.2d at 1202.
. Opinion of Leventhal, J., at - of 199 U.S.App.D.C., at 208 of 624 F.2d.
. Some commentators have questioned the propriety of the adversary system as the “engine of truth” in the criminal process. See, e. g., Frankel, The Search for Truth: An Umpireal View, 123 U.Pa.L.Rev. 1031 (1975). Many of their criticisms are well taken. But many of the failings of the adversary system do not stem from inherent defects in the adversary process. Rather, they result from the imbalance between the opposing parties that is a by-product of the inferior representation available to the poor. A serious commitment to eliminate the gross disparities in representation would go a long way toward bringing the realities of the adversary system into line with the model on which much of Anglo-American jurisprudence is based.
. 104 U.S.App.D.C. 57, 63, 259 F.2d 787, 793, cert. denied, 358 U.S. 850, 79 S.Ct. 81, 3 L.Ed.2d 86 (1958). In dissenting to the majority opinion in Mitchell, Judge Fahy responded to the court’s concern that judicial oversight of counsel’s performance might threaten the relationship between the bench and the bar:
The traditional amenities appropriate to the relationship between courts and members of the bar are not a substitute for inquiry in a particular case into the question whether a defendant has received assistance of counsel in terms of requisite skill. The bar is composed of professionals who have special responsibilities by reason of their calling. While the courts have the duty to defend them against unjust appraisal of their skill and judgment, I think the courts cannot bar inquiry into those matters when the substantial constitutional issue is raised.
s(s * s}s * *
Embarrassment caused counsel by an unjust charge of ineffective assistance is a price that unfortunately must be paid at times for careful judicial administration. And where the charge is just the remedy is not to save counsel from embarrassment but to save his client from unjust conviction or sentence.
Id. at 65-66, 259 F.2d at 795-96.
. The need for the trial judge to monitor counsel’s performance during trial is heightened if reviewing courts are to be limited to considering only those claims that were raised by objection at trial. See Wainwright v. Sykes, 433 U.S. 72, 117-18, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977) (Brennan, J., dissenting).
. United States v. Powe, 192 U.S.App.D.C. 224, 237-38, 591 F.2d 833, 846-47 (1978).
In light of Judge Leventhal’s repeated charges that our approach will produce a “thorough reordering of the adversary system,” I must emphasize that I am not proposing to transform the adversary system into one “more inquisitorial in nature.” Indeed, nothing could be farther from the truth. The purpose of our approach is merely to assure that our “adversary system of justice” really is adversary. Judge Leventhal frequently expresses his fears that the approach outlined in this opinion will undercut the adversary system and seriously disrupt the administration of justice. Yet nowhere does he elucidate the exact nature of the predicted dire consequences. The approach adopted in this opinion does not require that defense counsel reveal — at each stage of the proceedings — the precise information and reasoning that prompted him to pursue a given course; it only requires that he be able to assert that his actions have in fact been based upon informed tactical decisions. And if counsel is eventually called upon to justify his conduct in a post-trial inquiry, it is enough for him to defend his actions by articulating the reasoning behind them; the reviewing court will not substitute its own judgment as long as counsel’s decisions are informed and rational. I thus cannot understand how the adversary system will be “tortured out of shape” if defense counsel must contemplate from the beginning that he may be called upon to justify his conduct at some future date. And I fail to see how *299requiring defense counsel to fulfill the most rudimentary obligations of pretrial investigation and preparation will disrupt the administration of justice.
. In recent years the problem of lawyer incompetence has been the subject of increased concern among judges, the legal community and the public at large. See, e. g., Advisory Comm, to the Judicial Council on Qualifications to Practice before the United States Courts in the Second Circuit, Final Report on Proposed Rules for Admission to Practice (1975), summarized in New Admission Rules Proposed for Federal District Courts, 61 A.B.A.J. 945 (1975) (the Clare Committee Report); Burger, The Special Skills of Advocacy: Are Specialized Training and Certification of Advocates Essential to Our System of Justice?, 42 Fordham L.Rev. 227 (1973); Kaufman, Does the Judge Have a Right to Qualifíed Counsel?, 61 A.B.A.J. 569 (1975); Kaufman, The Court Needs a Friend in Court, 60 A.B.A.J. 175 (1974); Tamm, Advocacy Can Be Taught — the N.I.T.A. Way, 59 A.B.A.J. 625 (1973); Wilkey, A Bar Examination for Federal Courts, 61 A.B.A.J. 1091 (1975); Lawyers on Trial, Newsweek, Dec. 11, 1978 at 98.
Many reforms have been advocated, including increased trial advocacy training in the law schools, on-the-job certification for specialty practices, and raising the standards for admission to practice to include mandatory law school courses and mandatory continuing education requirements. Efforts to raise the overall level of lawyers’ skills are commendable, but none of these proposals even begins to address the unique problems of providing adequate representation for the poor. None of these suggested reforms attempts to deal with the most frequent causes of ineffective assistance for the poor defendant — attorney indifference and overwork. None offers any prospect for correcting the gross imbalance in the distribution of legal representation between the poor and the affluent. Most importantly, none of these reforms can provide any assurance that each defendant will receive the effective and conscientious assistance of counsel guaranteed by the Sixth Amendment.
. To date, the bar has been notably lax in disciplining those attorneys who shirk their obligations, despite various provisions of the Code of Professional Responsibility that are designed to protect against such violations. See, e. g., ABA Code of Professional Responsibility, Ethical Consideration 2-30 (“Employment should not be accepted by a lawyer when he is unable to render competent service .”); id. Ethical Consideration 6-1 (“[A] lawyer should act with competence and proper care in representing clients.”); id. Disciplinary Rule 6-101(A)(2) (“A lawyer shall not: . Handle a legal matter without preparation adequate in the circumstances.”); Rules of the D.C. Court of Appeals Governing the Bar of the District of Columbia, Rule XI, § 6(l)(b) (“Bar Counsel shall have the power and duty: . To investigate all matters involving alleged misconduct by an attorney . called to his attention whether by complaint or otherwise.”) (emphasis added).
In June, 1977, a committee of the D.C. Bar issued a detailed report on the bar’s procedures for handling complaints of ineffective assistance of counsel, particularly those from indigents represented by CJA attorneys. The report criticized the D.C. Bar’s own Disciplinary Board for failing to investigate such complaints:
We believe that the problem of substandard performance by court appointed attorneys is one which has been created in substantial part by the tolerance of such conduct over more than a decade. Attorneys accepting cases under the Criminal Justice Act frequently depend upon a high volume of cases in order to earn a living. This is especially the case since the vouchers that such attorneys submit for compensation are frequently reduced by the judges. This economic pressure on attorneys has an effect on the quality of representation. Failure to enforce the disciplinary rules under these circumstances, and the continued appointment of the most notoriously neglectful attorneys, has signaled many criminal practitioners that there is no real level of professionalism required. Once the disciplinary rules are enforced, we believe that a different message will be communicated, and that a large part of the problem will resolve itself by increased levels of performance by attorneys not wanting to risk disciplinary action.
Wolf Committee Report, supra note 3, at'TOIL
In the Saunders case, see note 105, supra, appellate counsel was so outraged by trial counsel’s failure to carry out his obligations as an attorney that she filed a grievance with the D.C. Bar Association. The results of that complaint are not public, but it is significant that Decoster’s attorney continued to receive appointments in the D.C. courts. Apparently, this is not an isolated episode. In 1971, when responsibility for administering the Criminal *300Justice Act in the District of Columbia was transferred to the Superior Court, the Criminal Justice Act Advisory Board was established as part of the required Plan for Furnishing Representation to Indigents. The Board, which was composed of seven attorneys, was given authority and responsibility to remove attorneys from the list of eligible CJA counsel upon a complaint and demonstration of inadequate representation. In the conclusion of one report on the handling of complaints against court-appointed counsel, however, “[d]espite the clear mandate to act, the Board was wholly ineffectual during its three years of existence.” Washington Pretrial Justice Program Report, supra note 3, at 5. The Board considered only one particularly egregious case, and even then refused to take any action. Id. at 6; Austern-Rezneck Report, supra note 3, at 15. The Board’s failure to make any attempt to reduce the number of appointed counsel who provide ineffective representation by “decertifying” incompetent attorneys and removing them from the appointment lists was criticized by two independent studies commissioned by the D.C. Bar, first in 1973, see Report on Appointed Counsel Program, in D.C. Courts, supra note 3, at 31-32, and again in 1975, see Austem-Rez-neck Report, supra note 3, at 124 (“One of the most serious weaknesses in the existing system is the lack of effective machinery for hearing grievances and taking disciplinary action against errant and incompetent attorneys.”).
. Appellant was also convicted of assault with a dangerous weapon and received a sentence concurrent with his armed robbery sentence. Since assault with a dangerous weapon is a lesser included offense of armed robbery arising from the same act or transaction, United States v. Johnson, 155 U.S.App.D.C. 28, 475 F.2d 1297 (1973), we vacated the assault conviction. United States v. DeCoster, 159 U.S. App.D.C. 326, 328 n.2, 487 F.2d 1197, 1199 n.2 (1973).
. See 18 U.S.C. §§ 3146(d), 3147 (1970); Grimes v. United States, 129 U.S.App.D.C. 308, 394 F.2d 933 (1967); Shackleford v. United States, 127 U.S.App.D.C. 285, 383 F.2d 212 (1967).
. On October 8, 1971, a letter from the Chief Probation Officer informing the court that Eley had been arrested in North Carolina on unrelated charges was placed in the clerk’s file for Eley’s case. A later report, not available to counsel at the time of appellant’s trial but included in the record before us, indicates that Eley was brought to D.C. Jail on November 3,' 1971 for a determination of whether to revoke his probation.
. A partial transcript of this colloquy is reprinted in our first opinion at 159 U.S.App.D.C. at 329, 487 F.2d at 1200.
. The dissent discusses at some length possible innocent explanations for the various acts and omissions to which we pointed in our first opinion. (Dissent at---of 199 U.S. App.D.C., at 314-316 of 624 F.2d). We need not consider the adequacy of these explanations, for our point in DeCoster I was not that the various acts established that the de-' fendant was denied his right to effective assistance of counsel, but only that they raised questions as to whether a constitutional violation had occurred. The proceedings on remand fully vindicated our belief that it was desirable to ventilate the issues concerning counsel’s performance, since as we explain in text, a great deal of significant information was elicited at the hearing.
. The district judge found counsel had not interviewed either officer.
. Appellant testified that he had requested his lawyer to interview the manager at the hotel, but made no such request with respect to people at the bar.
. Eley denied having been interviewed, but the district court found his testimony incredible.
. Two prosecutors were called as witnesses at the hearing on remand, but neither remembered this case. Each testified, however, that during their tenure in the U.S. Attorney’s Office, they had frequently discussed appellant’s counsel’s cases with counsel. Mr. Cohan, who represented the Government at trial, further stated that appellant’s counsel’s usual practice was to speak to prosecutors informally regarding discovery and to request to see hearing transcripts, and that Cohan’s usual practice was to show them.
. Appellant wrote to counsel because, as he explained in the letter, “1 tried to call you before, but couldn’t make contact.”
. At the hearing on remand, appellant clung to his trial testimony and stated that the statement in his letter to counsel was a “fabrication.”
. Counsel was also asked to explain the reasons for certain “tactical decisions” he made. He could not recall why he had moved for bond review in the district court rather than in General Sessions, or why he had omitted mention of the acceptance by Black Man’s in the original motion. He stated that he had attempted to waive jury trial at his client’s direction, despite counsel’s own misgivings. He explained that he had waived opening statement because he believed “the testimony I would have would be sufficient to proceed in this case,” but could not recall the factors that led him to that conclusion. And he stated that he did not check to determine if sentence was properly executed, because after filing a notice of appeal on the day sentence was imposed, he considered his representation of appellant terminated.
. In his supplemental brief filed in this court after the record was returned, appellant generally presses these same points, plus an additional one: counsel’s failure to object to appellant’s appearing before the jury in prison garb. Since this issue was not raised below the record does not reflect what considerations, if any, underlay counsel’s “decision” not to object. Consequently, we cannot consider it at this time.
. l. . . .
. [T]his Court finds that while the proper and prudent course for trial counsel was to have interviewed the complaining witness, the police officers and the codefendants prior to announcing “Ready”, his failure to do so in this particular case does not add up to ineffective assistance of counsel warranting a new trial.
2. While it may be that defense counsel herein was lax in his duty to conduct as thorough a factual investigation as might have been possible, we find that counsel did raise the only defense available to him, which defense was putting the government to its proof. And in light of DeCoster’s posture and attitude during the course of these proceedings, this Court cannot say that defense counsel substantially violated any one of the duties owed to his client.
******
3. Further, considering the record in toto, while it might appear that defense counsel was less than a “diligent conscientious advocate,” the weight of the government’s case at trial and supported on the hearing on remand convinces this Court that DeCoster was not prejudiced thereby and not denied the “reasonably competent assistance of an attorney” under the circumstances.
. See Diggs v. Welch, 80 U.S.App.D.C. 5, 7, 148 F.2d 667, 669, cert. denied, 325 U.S. 889, 65 S.Ct. 1576, 89 L.Ed. 2002 (1945).
. See Bruce v. United States, 126 U.S.App.D.C. 336, 339-40, 379 F.2d 113, 116-17 (1967).
. At the time DeCoster I was decided, three circuits already had rejected the “farce and mockery” standard for some version of a “reasonableness” test. See Moore v. United States, 432 F.2d 730 (3rd Cir. 1970) (en banc); Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968); MacKenna v. Ellis, 280 F.2d 592 (5th Cir. 1960), modified, 289 F.2d 928, cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961). See also McMann v. Richardson, 397 U.S. 759, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970) (counsel’s advice must be “within the range of competence demanded of attorneys in criminal cases”). Since then, three more circuits have joined this trend, United States ex rel. Williams v. Twomey, 510 F.2d 634 (7th Cir. 1975); Beasley v. United States, 491 F.2d 687 (6th Cir. 1974); United States v. Easter, 539 F.2d 663 (8th Cir. 1976); see also Herring v. Estelle, 491 F.2d 125 (5th Cir. 1974). One circuit has been ambiguous in its standard, compare Lischko v. Galli, 534 F.2d 333 (9th Cir. 1976), with United States v. Stern, 519 F.2d 521, 524 (9th Cir.), cert. denied, 423 U.S. 1033, 96 S.Ct. 565, 46 L.Ed.2d 407 (1975), and one circuit has indicated it might reconsider its old rule, Morgan v. Hogan, 494 F.2d 1220, 1222 n.4 (1st Cir. 1974).
A “reasonableness” standard is rapidly becoming the majority rule in the state courts as well. See Bazelon, The Realities of Gideon and Argersinger, 64 Geo.L.Rev. 811, 820 n.48 (1976).
. ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and the Defense Function 224-25 (App.Draft 1971). See also id. at 226-28.
. Id. at 4.1.
. Not infrequently, without inquiring as to what counsel was told by his client, courts have found ineffective assistance in a lawyer’s failure to uncover exculpatory evidence that should have been found, or, more generally, in his failure to make a thorough investigation. *306See, e. g., McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974); Garton v. Swenson, 497 F.2d 1137 (8th Cir. 1974); Johns v. Perini, 462 F.2d 1308 (6th Cir.), cert. denied, 409 U.S. 1049, 93 S.Ct. 519, 34 L.Ed.2d 501 (1972); Pennington v. Beto, 437 F.2d 1281 (5th Cir. 1971); Andrews v. United States, 403 F.2d 341 (9th Cir. 1968); Coles v. Peyton, 389 F.2d 224 (4th Cir.), cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968); Brooks v. Texas, 381 F.2d 619 (5th Cir. 1967); Brubaker v. Dickson, 310 F.2d 30 (9th Cir. 1962), cert. denied, 372 U.S. 978, 83 S.Ct. 1110, 10 L.Ed.2d 143 (1963); McLaughlin v. Royster, 346 F.Supp. 297 (E.D.Va.1972); Kott v. Green, 303 F.Supp. 821 (N.D.Ohio 1968); Goodwin v. Swenson, 287 F.Supp. 166 (W.D.Mo.1968); Smotherman v. Beto, 276 F.Supp. 579 (N.D.Tex.1967).
. Von Moltke v. Gillies, 332 U.S. 708, 721, 68 S.Ct. 316, 322, 92 L.Ed. 309 (1948).
. In addition to their common sense appeal, these requirements are set forth as cardinal rules in the leading manuals for defense lawyers. See, e. g., A. Amsterdam, B. Segal, & M. Miller, Trial Manual for the Defense of Criminal Cases §§ 107, 108, 113 (3d ed. 1974); Young Lawyers Section, D.C. Bar Ass’n, 11th Annual Criminal Practice Institute — Trial Manual §§ 2.1, .12 (1974); G. Shadoan, Law and Tactics in Federal Criminal Cases 7 (1964).
. The dissent finds us “overly literal,” Dissent at •--• of 199 U.S.App.D.C., at 319 of 624 F.2d, in interpreting the following colloquy:
Q Would it then be a correct inference that you never interviewed Mr. Taylor prior to the trial?
A That’s true.
Q Did you make any effort to interview Mr. Taylor before the trial?
A I did not.
(Tr. at 37), or the following colloquy:
Q Did you only think that [Taylor and Eley’s testimony might be devastating] and not know it because you had not interviewed them before the trial?
A The only reason I thought that was because of the letter that I received from Mr. Decoster.
Q Well how could you have any views on what their testimony would be if you had not interviewed them?
A Because Mr. Decoster had told me that they were with him at the time he was fighting in this letter. .
(Tr. at 38), to mean that counsel never interviewed Taylor and did not interview Eley until the second day of trial.
. Cf. United States v. Clayborne, 166 U.S.App. D.C. 140, 509 F.2d 473 (1974) (failure to interview witness excused because client had been in frequent contact with witness).
. United States v. DeCoster, supra, at 1201; see, e. g., United States v. Moore, 174 U.S.App.D.C. 113, 116 & n.7, 529 F.2d 355, 358 & n.7 (1976); United States v. Brown, 155 U.S.App.D.C. 177, 179, 476 F.2d 933, 935 (1973); Campbell v. United States, 126 U.S.App.D.C. 250, 251, 377 F.2d 135, 136 (1966); Jackson v. United States, 125 U.S.App.D.C. 307, 309, 371 F.2d 960, 962 (1966).
. Our dissenting colleague propounds a number of arguments as to why it would have been fruitless to conduct interviews. For example, it is argued that because the two codefendants confessed their own guilt by pleading guilty, they could not have anything useful to contribute on the question of the defendant’s guilt. (Dissent at - of 199 U.S.App.D.C., at 319 of 624 F.2d.) Similarly, it is argued, based on a drawing introduced at trial, that the desk clerk could not have seen appellant enter the hotel lobby. Dissent at-of 199 U.S.App.D.C., at 319 of 624 F.2d.) On both points the dissent: may well be correct. But it is also possible that the dissent is wrong, that, for example, the codefendants would have said appellant was not present, or the clerk would have said that he was away from his desk and saw appellant’s entry. These rationalizations only prove our main point: counsel should interview potential witnesses to determine what they have to offer, so that neither he — nor we — must engage in post hoc speculation as to what the witnesses would have said.
. We cannot agree with our dissenting colleague, Dissent at-of 199 U.S.App.D.C., at 319 of 624 F.2d, that reading the prosecutor’s notes on his conversation with his witnesses is necessarily an adequate substitute for actually interviewing the witnesses. It defies credulity to believe that in the run of the cases the prosecutors will ask — and record the answers to — all or even most of the questions a defense counsel would want answered in preparing the defense.
. Two other omissions by counsel further support our finding that he was inadequately pre- ’ pared. First, counsel did not obtain a transcript of the preliminary hearing, and thus was unable to use Officer Ehler’s statement at the hearing that he did not know which of the three codefendants actually took Crump’s wallet to impeach Ehler’s trial testimony that it was De-coster who took the wallet. Second, counsel admitted at trial that he had not learned that appellant’s former codefendants had pled guilty in the middle of their trial.
. In Pinkney appellant contended that his lawyer had failed to discuss with him the Government’s sentencing memorandum filed several days before sentencing. The court held that this allegation did not constitute an allegation of a substantial violation of a Decoster duty because “any omission by counsel was inconsequential unless there was evidence upon which counsel could undertake a refutation,” 177 U.S.App.D.C. at 432 n.60, 543 F.2d at 917 n.60, and “appellant’s motion gave no indication as to the evidence, if any, by which he would undertake an effort at refutation,” id. at 432, 543 F.2d at 917.
. Id. at 431 n.59, 543 F.2d at 916 n.59.
. See, e. g., C. McCormick, Evidence § 343 (Cleary ed. 1972) (“The most important consideration in the creation of presumption is probability.”)
. In so holding, we align ourselves with several other circuits. For example, in United States ex rel. Green v. Rundle, 434 F.2d 1112, 1115 (1970), the Third Circuit held that a showing of “prejudice” is excused when, inter alia, the pervasiveness of the ineffective assistance makes prejudice impossible to determine. Similarly, in Coles v. Peyton, 389 F.2d 224, cert. denied, 393 U.S. 849, 89 S.Ct. 80, 21 L.Ed.2d 120 (1968), the Fourth Circuit presumed prejudice from a near-total failure to investigate. Although language in Coles suggests that prejudice is to be presumed from any violation of the duties Coles establishes, see id. at 226, Coles has been limited to more gross violations, see, e. g., Jackson v. Cox, 435 F.2d 1089, 1093 (4th Cir. 1970). See also Thomas v. Wyrick, 535 F.2d 407, 414 (8th Cir. 1976).
The primary distinction between our approach and that followed in the cases cited is that we distinguish between the question of whether counsel’s violations were consequential, i. e., impaired the defense, and the question of whether the impairment was harmful, i. e., affected the outcome. See pp.---of 199 U.S.App.D.C., pp. 311-312 of 624 F.2d infra; United States v. Pinkney, supra, 177 U.S. App.D.C. at 431, 543 F.2d at 916 n.59. We avoid using the term “prejudice” because it blurs these two inquiries.
. See, e. g„ Garland v. Cox, 472 F.2d 875 (4th Cir.), cert. denied sub nom., Slayton v. Garland, 414 U.S. 908, 94 S.Ct. 217, 38 L.Ed.2d 146 (1973); Martin v. Virginia, 365 F.2d 549 (4th Cir. 1966).
. See, e. g., Glasser v. United States, 315 U.S. 60, 62 S.Ct. 457, 86 L.Ed. 680 (1942); Castillo v. Estelle, 504 F.2d 1243, 1245 (5th Cir. 1975).
. Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976).
. If this were all that was alleged, appellant would have been required to show that those witnesses’ testimony would have helped the defense or else demonstrate a change in circumstances, such as the passage of time, which would have made such a showing impossible.
. Pinkney is distinguishable on all these points. Whereas a large-scale failure to investigate will almost always adversely affect a defendant’s rights, a failure to inform a defendant of the contents of a government allocution at sentencing is not so inherently injurious, especially when, as in Pinkney, the allocution largely rehashes previously published material on drug addiction, 177 U.S.App.D.C. at 426, 543 F.2d at 911, and information previously developed at trial, id. at 427, 543 F.2d at 912. Moreover, appellant in Pinkney was presumably in a position to come forward with “evidence upon which the elements of a constitutionally deficient performance might properly be found,” id. at 431, 543 F.2d at 916, i. e., “evidence, if any, by which he would undertake an effort at refutation” of the allocation memorandum, id. at 432, 543 F.2d at 917; yet he repeatedly failed to offer such evidence, either after trial or in support of his later motion for resentencing, id. at 432, 543 F.2d at 917. As we state in the text, appellant in this case is not now in a position to produce such evidence, nor can it be assumed that his failure to do so means that there was no evidence that might have been discoverable with reasonably thorough investigation and that might have helped his defense.
. The presumption of adverse consequences which we find appropriate here is, of course, rebuttable. Indeed, with respect to counsel’s failure to discover prior to trial that appellant’s codefendants had not pled guilty until the middle of their trial, see note 28 supra, the record indicates that the omission was inconsequential, since the trial judge informed counsel of this fact before trial started, and appellant reversed his initial decision to waive jury trial. But there is no similar basis for concluding that counsel’s failure to interview the Government witnesses or potential defense witnesses, to search for other defense witnesses, or to be familiar with the preliminary hearing transcript had no impact on defendant’s position.
. Although our dissenting colleague devotes a considerable portion of his dissent to attacking this aspect of the holding of DeCoster I (Dissent at----of 199 U.S.App.D.C., at 327-340 of 624 F.2d), he ultimately seems to accept it. See Dissent at-of 199 U.S. App.D.C., at 334 of 624 F.2d, quoting United States v. Pinkney, supra note 29, at 431 of 177 U.S.App.D.C. n.59, at 916 of 543 F.2d n.59. The real issue on which we disagree seems to be whether, on the facts of this case, counsel’s omissions should be presumed to have had adverse consequences for the defense. See pp. .....— of 199 U.S.App.D.C., pp. 309-310 of 624 F.2d supra.
. Matthews v. United States, 145 U.S.App.D.C. 323, 326, 449 F.2d 985, 988, rev’d on rehearing on other grounds, 449 F.2d 992 (1971). See also United States v. Hurt, 177 U.S.App.D.C. 162, 543 F.2d 162 (1976).
. Glasser v. United States, 315 U.S. 60, 76, 62 S.Ct. 457, 86 L.Ed. 680 (1942); see Beasley v. United States, 491 F.2d 687 (6th Cir. 1974).
. For example, with respect to one of counsel’s omissions here — his failure to familiarize himself with the preliminary hearing testimony, see note 28 supra — it is possible to gauge the consequences of the omission, and hence to determine whether the omission was harmless. The consequence of counsel’s failure was that appellant lost the opportunity to impeach Officer Ehler’s testimony that appellant took the wallet with the Officer’s prior testimony that he did not know who took the wallet. We agree with the district court, however, that this consequence was harmless beyond a reasonable doubt: the question of which of three robbers did the actual taking was not material. See also United States v. Pinkney, supra note 29, 177 U.S.App.D.C. at 431-432 n.59, 543 F.2d at 916-917 n.59.
. In view of the dissent’s discussion of the lack of prejudice from counsel’s failure to investigate, see dissent at- of 199 U.S.App. D.C., at 324 of 624 F.2d, we repeat here what we said at p.-of 199 U.S.App.D.C., p. 308 of 624 F.2d supra:
In sum, we hold that counsel’s failure to interview Taylor, Crump, Officer Box, or the desk clerk; his delay in interviewing Eley; and his failure to seek out witnesses from the *312hotel or the bar were not supported by tactical considerations, informed or otherwise, and violated the duty to conduct a factual investigation. Of course, counsel was “under no duty to assist in the fabrication of a defense,” as the district court wisely noted. But counsel was under a duty to investigate whether there was a non-fabricated defense that could be presented. The dissent may well be correct that there were no such defenses available in this case, although it may be significant that the two codefendants pled guilty only to robbery and not armed robbery. But even if the dissent is correct, investigation is still necessary not only so that defendants receive informed advice from their counsel and make informed decisions as to whether to go to trial, but also so that lawyers do not unwittingly present perjured testimony, as apparently occurred in this case. Thus, while counsel may have been fully justified in not calling the codefendants or any other witnesses, his failure to interview them violated the duty to investigate.
. Should the Government seek a retrial, the district court will have to decide whether the impossibility at this point of determining whether there were unidentified witnesses favorable to the defense should bar a second trial.
. United States v. Sarvis, 173 U.S.App.D.C. 228, 235, 523 F.2d 1177, 1184 (1975).
. Harrison v. United States, 128 U.S.App.D.C. 245, 249-50, 387 F.2d 203, 207-08 (1967), rev’d on other grounds, 392 U.S. 219, 88 S.Ct. 2008, 20 L.Ed.2d 1047 (1968).
. Several commentators have suggested that this delay could be minimized, and trial judges’ ability “to maintain proper standards of performance by attorneys ... in criminal cases” enhanced, McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970), were trial judges to “develop methods whereby they can quickly discern before a trial begins whether they will receive the truth which results from an effective adversary proceeding.” Boston University Center for Criminal Justice, Right to Counsel in Criminal Cases: The Mandate of Argersinger v. Hamlin 196 (1976); see id. at 193-98; United States v. Simpson, 154 U.S.App.D.C. 350, 352-58, 475 F.2d 934, 936-42 (Bazelon, C. J„ dissenting), cert. denied, 414 U.S. 873, 94 S.Ct. 140, 38 L.Ed.2d 91 (1973); Finer, Ineffective Assistance of Counsel, 58 Cornell L.Rev. 1077, 1088 (1973); Grano, The Right to Counsel: Collateral Issues Affecting Due Process, 54 Minn. L.Rev. 1175, 1248 (1970).
. United States v. Sarvis, supra note 38, at 234-35, 523 F.2d at 1183-84.
. See United States v. Perkins, 162 U.S.App.D.C. 321, 326 n.10, 498 F.2d 1054, 1059 n.10 (1974); Clemons v. United States, 133 U.S.App.D.C. 27, 36 n.9, 408 F.2d 1230, 1239 n.9 (1968), cert. denied, 394 U.S. 964, 89 S.Ct. 1318, 22 L.Ed.2d 567 (1969).