concurring:
The question raised by this appeal is, What rule should a court apply in deciding whether the defendant in a criminal case has been denied the assistance of counsel?
In Strickland v. Washington, — U.S. —, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), the United States Supreme Court answered this question by announcing a two-part rule. First: The defendant must show that counsel failed to conduct the case in a reasonably competent manner. In deciding whether the defendant has made this showing, the Court will be “highly deferential” to counsel, and will “strongly presume[]” that counsel “rendered adequate assistance.” Id. at —, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95. And second: Even if inadequate assistance appears, the defendant must further show that “there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at —, 104 S.Ct. at 2068, 80 L.Ed.2d at 698.
The plurality would adopt Strickland. I agree with Judge BROSKY that this is precipitous, and that we should await the decision of our Supreme Court. But putting that aside, I am unwilling to follow in Strickland’s wake. For the rule Strickland announces is inconsistent with settled *568principle, and the burden it imposes on the defendant is so heavy that instead of affording, it denies the protection guaranteed by the sixth amendment. By remitting the poor to the representation of incompetent counsel, Strickland abandons our proudest aspiration — to achieve equal justice for all. It is an unfortunate decision, which I hope the Court will some day repudiate.
Meanwhile, Strickland is of course binding as to the meaning to be given the sixth amendment. But it is of no force as to the meaning to be given article 1, section 9, of the Pennsylvania Constitution, which also guarantees the assistance of counsel. After considering what effect should be given article 1, section 9, I have concluded that under it, the rule in Pennsylvania courts should be that if the defendant shows that counsel did not conduct the case in a reasonably competent manner, relief must be granted, unless the prosecution shows beyond a reasonable doubt that counsel’s conduct had no effect on the outcome of the case. While I acknowledge that the authorities are not consistent, I submit that the better reasoned ones support this rule.
Applying this rule to the facts of this case, I conclude that appellant did show that counsel was not reasonably competent, but that the Commonwealth showed beyond a reasonable doubt that counsel’s incompetence had no effect on the outcome of the case. I therefore concur in the order affirming the judgment of sentence.
-1-
I have found it impossible to reconcile the Pennsylvania cases on the rule to be applied in deciding whether the defendant in a criminal case has been denied the assistance of counsel. To state such a rule, one must answer two questions: By what standard should counsel’s assistance be measured? And if counsel’s assistance failed to satisfy that standard, must the defendant prove that the failure had an effect on the outcome of the case? The cases provide no clear or consistent answers to these questions. Many cases measure counsel’s assistance by asking whether counsel had some reasonable basis for believing that the *569course he chose would assist his client. However, it has proved difficult, if not impossible, to give content to this standard because of the uncertainty regarding the defendant’s burden of proof. The question whether counsel had a reasonable basis for the course he chose has tended to be confused with, or telescoped into, the question whether the course counsel chose had an effect on the outcome of the case.
This tendency has resulted in two lines of cases. In one line, the cases seem to hold that if the defendant shows that counsel did not have a reasonable basis for the course he chose, then the defendant has proved that he was denied the assistance of counsel, and relief must be granted. See, e.g., Commonwealth v. Badger, 482 Pa. 240, 393 A.2d 642 (1978) (court may not use harmless error analysis and alternatives must be examined only to determine whether course chosen by counsel had some reasonable basis); Commonwealth ex rel. Washington v. Maroney, 427 Pa. 599, 235 A.2d 349 (1967) (finding of ineffectiveness cannot be made unless alternatives not chosen offer potential for success substantially greater than tactics used; therefore, if there was no reasonable basis for counsel’s decision, his decisions were prejudicial to client); Commonwealth v. Williams, 273 Pa.Super. 147, 416 A.2d 1132 (1979) (counsel found ineffective for failing to interview witnesses; Commonwealth’s argument rejected that defendant had to show that counsel’s conduct prejudiced him). In the other line, the cases either expressly or implicitly apply a prejudice or harmless error analysis. See, e.g., Commonwealth v. Clemmons, 505 Pa. 356, 479 A.2d 955 (1984) (to establish ineffectiveness defendant must show counsel’s action arguably ineffective and likelihood of prejudice); Commonwealth v. Vogel, 501 Pa. 314, 461 A.2d 604 (1983), cert. denied, — U.S. —, 104 S.Ct. 1603, 80 L.Ed.2d 133 (1984) (even if counsel’s reasons for failure to pursue motion for change of venue were inadequate, final judgment will not be disturbed absent further showing that failure deprived defendant of fair trial); Commonwealth v. Johnson, 490 *570Pa. 312, 416 A.2d 485 (1980) (rejecting claim that counsel was ineffective in failing to object when judge and not jury imposed penalty; since minimum sentence was imposed, any error was harmless); Commonwealth v. Weathers El, 485 Pa. 28, 400 A.2d 1295 (1979) (although counsel testified that failure to introduce testimony was an oversight, counsel not deemed ineffective because failure did not prejudice defendant; record discloses that testimony would not have been sufficient to negate specific intent); Commonwealth v. Green, 315 Pa.Super. 564, 462 A.2d 736 (1983) (rejecting claim that counsel was ineffective in failing to object to references to defendant’s prior criminal activity; court convinced beyond reasonable doubt that references did not contribute to verdict).
Given this uncertain state of the law, I believe that we should reexamine the issues raised by a defendant’s claim that he was denied the assistance of counsel — that we should put aside the decided cases, and start afresh.
-2-
The sixth amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defense.” In Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938), the United States Supreme Court held that this guarantee was violated when an indigent defendant charged with a felony in a federal court was convicted and imprisoned without having had counsel appointed to assist him, unless the defendant had waived the assistance of counsel. However, the sixth amendment guarantee to the assistance of counsel did not extend to the states. The only Federal Constitutional right that a defendant in a state court had was the right to a fair trial under the due process clause of the fourteenth amendment. Powell v. Alabama, 287 U.S. 45, 53 S.Ct. 55, 77 L.Ed. 158 (1932). Consequently, an indigent defendant in a state court could not complain of not having had the assistance of counsel unless the absence of counsel resulted in a conviction lacking in fundamental fairness. Betts v. Brady, 316 U.S. 455, *57162 S.Ct. 1252, 86 L.Ed. 1595 (1942). This inequity was eliminated by the United States Supreme Court in Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), in which the Court held the sixth amendment guarantee to the assistance of counsel applicable to the states through the due process clause of the fourteenth amendment. Under Gideon, therefore, an indigent defendant must be provided with counsel in all felony prosecutions, whether in federal or state court. This requirement has been extended to include all misdemeanor prosecutions in which a sentence of imprisonment is actually imposed, Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59 L.Ed.2d 383 (1979); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972).
This steady expansion of the sixth amendment guarantee to the assistance of counsel, first to all courts, and next to almost all criminal prosecutions, is critical to our inquiry in this case. For it illustrates the most persistent and powerful tendency of our modern Constitutional law: the aspiration that everyone, rich or poor, in whatever court, should enjoy the same protections of the law.
-3-
The burden of proving the denial of a constitutional right is on the person asserting the denial. See United States v. Cronic, — U.S. —, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); Commonwealth v. Clemmons, supra. Accordingly, with the expansion of the sixth amendment, the courts have repeatedly had occasion to consider what showing the defendant must make to prove that his right to the assistance of counsel was in fact denied.
It was early established that the right to the assistance of counsel means the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771, 90 S.Ct. 1441, 1449, 25 L.Ed.2d 763 (1970) (“if the right to counsel guaranteed by the Constitution is to serve its purpose, defendants cannot be left to the mercies of incompetent counsel”); Powell v. Alabama, 287 U.S. at 71, 53 S.Ct. at 65 (the duty to appoint counsel to represent a defendant “is not *572discharged by an assignment at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case”). The question therefore became, What showing must the defendant make to prove that his counsel was ineffective?
For two types of cases the answer to this question is clear:
In the first type the defendant proves that his counsel was ineffective by showing that the government — federal or state — disabled counsel from fully assisting him. See Geders v. United States, 425 U.S. 80, 96 S.Ct. 1330, 47 L.Ed.2d 592 (1976) (judge prohibited any attorney-client consultation during overnight recess); Herring v. New York, 422 U.S. 853, 95 S.Ct. 2550, 45 L.Ed.2d 593 (1975) (under authority of statute judge exercised his discretion to refuse to allow summation at bench trial); Brooks v. Tennessee, 406 U.S. 605, 92 S.Ct. 1891, 32 L.Ed.2d 358 (1972) (statutory requirement that defendant be first defense witness); Ferguson v. Georgia, 365 U.S. 570, 81 S.Ct. 756, 5 L.Ed.2d 783 (1961) (statutory bar on direct examination of defendant). In the second type the defendant proves that his counsel was ineffective by showing that counsel’s representation of a co-defendant resulted in an actual conflict of interest that affected counsel’s performance. See Cuyler v. Sullivan, 446 U.S. 335, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). In both of these types of cases no further proof is required. In other words, the defendant does not have to prove that the ineffectiveness of his counsel resulted in any prejudice to his case. Instead, prejudice will be presumed. The reason is that in these types of cases prejudice is at once both likely to occur and difficult, if not impossible, to measure. Strickland v. Washington, — U.S. at —, 104 S.Ct. at 2067, 80 L.Ed.2d at 696. An additional reason is that state interference with the right to counsel and actual conflicts of interests are easy to identify and therefore easy to prevent. Id.
Suppose, however, that a defendant asserts that even though there was no state interference with his right to *573counsel, and even though counsel was not burdened with an actual conflict of interest, still counsel was ineffective. In such a case, what showing must the defendant make? Cases presenting this question may be divided into three types. The point to note is that the first two of these types are of no assistance in deciding what should be the defendant’s burden.
The first type of case may be illustrated by assuming a case in which the defendant shows that the trial was a “farce and mockery of justice,” see Jones v. Huff, 80 App.D.C. 254, 152 F.2d 14 (D.C.Cir.1945), or that counsel failed to introduce evidence that would have established his innocence, as, for example, a rock-solid alibi, see United States v. Decoster, 199 App.D.C. 359, 448 n. 105, 624 F.2d 196, 284 n. 105 (D.C.Cir.), cert. denied, 444 U.S. 944, 100 S.Ct. 302, 62 L.Ed.2d 311 (1979). (dissenting opinion by BAZELON, J., joined by WRIGHT, C.J.). In cases of this type there is no question that the defendant is entitled to relief. The question whether the defendant has the burden of proving prejudice need not be decided. The court may assume arguendo that the defendant does have the burden, for whether he does or not, the court’s decision will be the same.
The second type of case may be illustrated by assuming a case in which the prosecution shows beyond a reasonable doubt that however “effective assistance” is defined, counsel’s act, or omission, had no effect on the verdict or sentence. In cases of this type there is no question that the defendant is not entitled to relief. Again, the question whether the defendant has the burden of proving prejudice need not be decided. The court may assume arguendo that the defendant does not have the burden, for again, whether he does or not, the court’s decision will be the same. See Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419 (1970) (hearing on claim of ineffective assistance of counsel for inadequate efforts to exclude evidence was properly denied where some evidence was properly admitted and any error in admission of other evidence was *574harmless); Commonwealth v. Johnson, 490 Pa. 312, 416 A.2d 485 (1980) (counsel’s failure to object when judge rather than jury imposed penalty was harmless because defendant received minimum sentence anyway); Commonwealth v. Green, 315 Pa.Super. 564, 462 A.2d 736 (1983) (rejecting claim that counsel was ineffective for failing to object to references to defendant’s prior criminal activity where court was convinced beyond reasonable doubt that references did not affect verdict). And see Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); Commonwealth v. Story, 476 Pa. 391, 383 A.2d 155 (1978).
In the third type of case the result may depend first, upon how “ineffectiveness” is defined, and second, upon who has the burden of proving prejudice or lack of prejudice as a result of counsel’s ineffectiveness. It is this type of case that confronted the Court in Strickland v. Washington, supra, and that confronts us here.
Many cases have analyzed the two issues of how “ineffectiveness” should be defined and who should have the burden of proving prejudice or lack of prejudice. I find Strickland’s analysis of both issues, especially the issue of burden of proof, unpersuasive and contrary to settled principle.
-4-
-a-
The definition of “ineffectiveness”, or to state it affirmatively, of “the effective assistance of counsel”, has been much debated. See, for a particularly full discussion and collection of authorities, the several opinions in United States v. Decoster, supra. It is evident that “effective” must mean at least “reasonably competent.” For if counsel could be “effective” even though “m competent,” the sixth amendment guarantee to “the assistance of counsel” would mean only that the defendant was entitled to a lawyer — any lawyer — to act as counsel, whether that lawyer knew anything about the principles of criminal law, the facts of the case, or how to conduct a trial — in other words, whether or *575not that lawyer was able to afford the defendant any “assistance.” The debate has been, not about this obvious proposition, but about how to give content to the standard, “reasonably competent.”
Some regard the standard as too vague to be of any value. For example, Justice MARSHALL, dissenting in Strickland, characterizes it as a standard of “debilitating ambiguity”. — U.S. at —, 104 S.Ct. at 2075, 80 L.Ed.2d at 706. In his view,
it is so malleable that, in practice, it will either have no grip at all or will yield excessive variation in the manner in which the Sixth Amendment is intepreted and applied by different courts. To tell lawyers and the lower courts that counsel for a criminal defendant must behave “reasonably” and must act like a “reasonably competent attorney” ... is to tell them almost nothing.
Id.
Accordingly, he concludes, it is essential that the courts develop “particularized standards designed to ensure that all defendants receive effective legal assistance.” — U.S. at —, 104 S.Ct. at 2076, 80 L.Ed.2d at 707 (collecting and citing to decisions and scholarly comment attempting to develop such standards).
Others, for example Justice BRENNAN, concurring and dissenting in Strickland, are of the view that to measure counsel’s performance by a set of “particularized standards” will not prove “sufficiently flexible to accommodate the wide variety of situations giving rise to claims of this kind [i.e., of ineffective assistance].” — U.S. at —, 104 S.Ct. at 2073, 80 L.Ed.2d at 703. In this view, a general standard, such as “reasonable competence,” can be given effective content by the courts
continuing] to develop governing principles on a case-by-case basis in the common law tradition, as they have in the past.
Id.
Of these two views — the particularized standards and the general standard, common law view — the general standard *576view has prevailed in the federal Courts of Appeal, although the words chosen to express the standard have varied. See Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir.1978), cert. denied, 440 U.S. 974, 99 S.Ct. 1542, 59 L.Ed.2d 793 (1979) (“reasonably competent attorney acting as a diligent conscientious advocate”); Marzullo v. Maryland, 561 F.2d 540, 543 (4th Cir.1977) (“range of competence demanded of attorneys in criminal cases”); United States v. Easter, 539 F.2d 663, 666 (8th Cir.1976), cert. denied, 434 U.S. 844, 98 S.Ct. 145, 54 L.Ed.2d 109 (1977) (“exercise the customary skills and diligence that a reasonably competent attorney would perform under similar circumstances”); Beasley v. United States, 491 F.2d 687, 696 (6th Cir.1974) (“counsel reasonably likely to render and rendering reasonably effective assistance”; “counsel must perform at least as well as a lawyer with ordinary training and skill in the criminal law and must conscientiously protect his client’s interests”); Moore v. United States, 432 F.2d 730, 736 (3d. Cir.1970) (“exercise of the customary skill and knowledge which normally prevails at the time and place”); MacKenna v. Ellis, 280 F.2d 592, 599 (5th Cir.1960), modified, 289 F.2d 928 (5th Cir.1961), cert. denied, 368 U.S. 877, 82 S.Ct. 121, 7 L.Ed.2d 78 (1961) (“counsel reasonably likely to render and rendering reasonably effective assistance”). While Pennsylvania decisions do not expressly debate the choice between particularized standards and a general standard, they are probably best understood as representing the choice of a general standard. See, e.g., Commonwealth ex rel. Washington v. Maroney, 427 Pa. at 604, 235 A.2d at 352 (“some reasonable basis designed to effectuate his client’s interest”).
I am not myself persuaded that there is as much difference between the two views as their respective proponents sometimes seem to believe. Consider, for example, the opinions by Judge ROBINSON and Judge BAZELON, in United States v. Decoster, supra. Both judges cite the American Bar Association Standards for the Defense Function as pertinent to measuring counsel’s performance. 624 *577F.2d at 250 and n. 44 (ROBINSON, J.), id. at 276-77 (BAZELON, J.). Speaking broadly, Judge ROBINSON may be seen as a proponent of a general standard, to be given increasingly precise definition by the courts proceeding on a case-by-case basis, in the common law tradition, and Judge BAZELON as a proponent of particularized standards, to be promulgated in advance, somewhat in the nature of a code of conduct to be borne in mind by defense counsel as they undertake a given case. However, to the extent that the courts, proceeding on a case-by-case basis, adopt and enforce the ABA Standards, Judge ROBINSON’s general standard and Judge BAZELON’s particularized standards will become identical. Nor is such a development unlikely; in fact, I should expect it to occur. Thus this court, working with the general standard of “some reasonable basis designed to effectuate [the] client’s interests,” has often made reference to the ABA Standards in evaluating counsel’s performance. See, e.g., Commonwealth v. McCaskill, 321 Pa.Super. 266, 468 A.2d 472 (1983) (§ 4-4.1 —duty to investigate); Commonwealth v. McFarland, 304 Pa.Super. 470, 450 A.2d 1008 (1982) (§ 4-5.2(a) — duty to advise defendant regarding right to testify); Commonwealth v. Ross, 289 Pa.Super. 104, 432 A.2d 1073 (1981) (§ 4-8.2 — duty to advise defendant regarding right to appeal).
Given such increasing particularization of a general standard, it may not be important, at least not critical, whether in defining “ineffectiveness” a court adopts the particularized standards or the general standard, common law view. On balance, however, the general standard, common law view of reasonable competence seems the better view. The professional competence of counsel on the civil side is measured by this standard, when counsel is sued for malpractice, see Schenkel v. Monheit, 266 Pa.Super. 396, 399, 405 A.2d 493, 494 (1979) (“ordinary skill and knowledge”), and the same is true when the competence of persons practicing professions other than law is measured, see In-collingo v. Ewing, 444 Pa. 263, 282 A.2d 206 (1971) (physi*578cian or surgeon), Bloomsburg Mills, Inc. v. Sordini Construction Co., Inc., 401 Pa. 358, 164 A.2d 201 (1960) (architect); O’Neill v. Atlas Automobile Finance Corp., 139 Pa.Super. 346, 11 A.2d 782 (1940) (accountant). I find no persuasive reason for measuring the professional competence of counsel on the criminal side differently. To the contrary, it is often useful in developing one part of the law to draw on other parts of the law where there has been experience with a similar problem.
I should therefore hold, not simply because it is consistent with Pennsylvania cases but because it is the better view, that a defendant asserting ineffectiveness of counsel must show that counsel did not perform in a reasonably competent manner.
It is now in order to consider Strickland’s analysis of the issue of how “ineffectiveness” should be defined. The short answer is that probably Strickland adopts the general standard, common law view. Certainly that is what the Court says it is doing, stating that
[i]n any case presenting an ineffectiveness claim, the performance inquiry must be whether counsel’s assistance was reasonable considering all the circumstanc-es____ No particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.
— U.S. at —, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. And elsewhere in its opinion the Court refers to decisions by the federal Courts of Appeals, and cites its own decision in McMann v. Richardson, supra, to the effect that defense counsel must be “reasonably competent.” — U.S. at —, 104 S.Ct. at 2065, 80 L.Ed.2d at 693. The difficulty is that, having made these apparently clear and straightforward statements, the Court then proceeds to qualify them so drastically that one is left to wonder what they really mean.
*579Specifically: Immediately after stating that counsel’s performance is to be evaluated by a general standard, the Court admonishes the reader that, however, “[judicial scrutiny of counsel’s performance must be highly deferential.” — U.S. at —, 104 S.Ct. at 2065, 80 L.Ed.2d at 694. Then the Court adds that
[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action “might be considered sound trial strategy.”
Id. at —, 104 S.Ct. at 2065-66, 80 L.Ed.2d at 694-95 (citation omitted).
And then the Court adds that “the court should recognize that counsel is strongly presumed to have rendered adequate assistance.” Id. at —, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. Finally, the Court adds that
[i]n any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.
Id.
Justice MARSHALL, dissenting in Strickland, states that even if he were otherwise inclined to join the majority opinion, he “could not abide” these “elaborations]” upon the general standard of “reasonable competence,” — U.S. at —, 104 S.Ct. at 2077, 80 L.Ed.2d at 709, going on to say:
I am not sure what these phrases mean, and I doubt that they will be self-explanatory to lower courts. If they denote nothing more than that a defendant claiming he was denied effective assistance of counsel has the burden of proof, I would agree. See United States v. Cronic, [— U.S. at —, 104 S.Ct.], at [2046]. But the adjectives “strong” and “heavy” might be read as imposing upon defendants an unusually weighty burden of persuasion. If that is the majority’s intent, I must respectfully dis*580sent. The range of acceptable behavior defined by “prevailing professional norms,” [citation omitted], seems to me sufficiently broad to allow defense counsel the flexibility they need in responding to novel problems of trial strategy. To afford attorneys more latitude, by “strongly presuming” that their behavior will fall within the zone of reasonableness, is covertly to legitimate convictions and sentences obtained on the basis of incompetent conduct by defense counsel.
— U.S. at —, 104 S.Ct. at 2078, 80 L.Ed.2d at 709-10.
I submit that this criticism is unanswerable. When any other professional person — a civil lawyer, see Schenkel v. Monheit, supra; doctor, see Incollingo v. Ewing, supra; accountant, see O’Neill v. Atlas Automobile Finance Corp., supra; or architect, see Bloomsburg Mills, Inc. v. Sordini Construction Co., Inc., supra; —is claimed to have performed with something less than “reasonable competence”, the courts do not take a “highly deferential” attitude, or engage in any “presumption” at all, much less a “strong” or “heavy” presumption that the lawyer, doctor, accountant, or architect, has behaved reasonably. Why should the courts judge the competence of the criminal defense bar any differently? Why be less willing to find incompetence on the criminal side than on the civil side? If anything, I should suppose it would be just the other way around. The injury suffered by an unjustly imprisoned person because incompetent defense counsel failed him is likely to be much more grievous than the injury suffered by one who has lost a malpractice action because of incompetent counsel. If we really value our liberty and reputation as much as our money, we should judge the competence of criminal defense counsel by a standard at least as exacting as the standard by which we judge other professional behavior.
The majority opinion in Strickland says that its “highly deferential” treatment of the criminal defense bar is necessary because
*581[t]he availability of intrusive post-trial inquiry into attorney performance or of detailed guidelines for its evaluation would encourage the proliferation of ineffectiveness challenges.
— U.S. at —, 104 S.Ct. at 2066, 80 L.Ed.2d at 695. This statement, I submit, would be regrettable coming from any court. It is immeasurably regrettable coming from the highest court in our nation. The statement assumes that because there is a “proliferation” of challenges, most of the challenges must be without merit. Why should that be so? Perhaps there is a proliferation of challenges because there is a proliferation of incompetent counsel. Not long ago there was a proliferation of civil rights cases. That was because there was a proliferation of racial discrimination. Besides, even if most of the ineffectiveness challenges are without merit, that is no reason for applying to them a standard less exacting than the standard applied in other cases. Many mechanisms are available for screening out and promptly disposing of meritless cases — civil and criminal — among them, the appointment of masters and the initiation of various “fast-track” procedures. A court’s first responsibility is to protect our constitutional rights. The fact that there is a proliferation of sixth amendment claims is no basis for deciding these claims with any less care than is exercised in deciding first amendment claims, or any other claim that a constitutional right has been denied.
-b-
It is now in order to consider the second issue involved in what I have described above as the “third type” of ineffectiveness case: If the defendant shows that counsel was “ineffective,” then who has what burden of proof? Must the defendant further prove that counsel’s ineffectiveness “prejudiced” him (putting aside for the moment what “prejudice” means)? Or does the burden shift to the prosecution to show beyond a reasonable doubt that counsel’s ineffectiveness did not affect the outcome of the case? (The “harmless error” rule.) Or should the defendant’s showing *582of ineffectiveness end the matter, in other words, should a new trial be ordered regardless of whether the defendant suffered any prejudice, and therefore without making inquiry concerning prejudice?