The North Carolina Supreme Court held in State v. Farook, No. 457PA20-2, ___ N.C. ___ (August 14, 2026) (summarized here), that the proper analysis for most claims of ineffective assistance of counsel based on an attorney’s admission of his or her client’s guilt without the client’s knowing consent is the two-part test set forth in Strickland v. Washington, 466 U.S. 668 (1984). That test requires that the defendant show (1) that counsel’s performance was deficient, and (2) that the deficient performance prejudiced the defense.
North Carolina courts historically had held pursuant to State v. Harbison, 315 N.C. 175 (1985), that a defense counsel’s admission of a defendant’s guilt without the defendant’s consent is per se violative of the Sixth Amendment. Under this framework, a defendant was not required to demonstrate that he or she was prejudiced by the admission to be afforded relief. In Farook, the court limited the rule in Harbison to circumstances in which a defendant is “entirely surprised” by counsel’s admission of guilt.
Here is the backstory.
United States v. Cronic. On May 14, 1984, the United States Supreme Court decided two significant Sixth Amendment cases: United States v. Cronic, 466 U.S. 648 (1984) and Strickland v. Washington, 466 U.S. 668 (1984).
In Cronic, the defendant challenged on appeal the competence of his counsel – a young real estate attorney who was appointed to represent the defendant on mail fraud charges and who was afforded only 25 days to prepare for trial. Id. at 649-52. Explaining that the right to effective assistance of counsel is recognized “not for its own sake” but instead “because of the effect it has on the ability of the accused to receive a fair trial,” Cronic stated that the Sixth Amendment guarantee to the assistance of counsel generally is not implicated unless it affects the ability of the accused to receive fair trial. Id. at 658. Moreover, because counsel’s competence is presumed, the burden rests on the accused to demonstrate a constitutional violation. Id.
Nevertheless, Cronic recognized that there are circumstances related to the deprivation of a defendant’s right to the assistance of counsel that are so likely to prejudice the defendant that the cost of litigating their effect in a particular case is unjustified. Id. at 658. Those circumstances include the complete denial of counsel at a critical stage, counsel’s failure to subject the prosecution’s case to meaningful adversarial testing, and the appointment of counsel too close to the commencement of trial to allow effective assistance. Id. at 659-61.
Ultimately, Cronic determined that the circumstances of the case below did not satisfy that standard of presumed prejudice. Id. at 666. Instead, Cronic held that the defendant in that case could make out a claim of ineffective assistance of counsel only by pointing to specific errors made by trial counsel. Id. at 666.
Strickland v. Washington. In Strickland, the Supreme Court set forth a two-part test for determining when specific errors by counsel render counsel’s assistance so defective as to require reversal of a defendant’s conviction:
First, the defendant must show that counsel’s performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel’s errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.
466 U.S. at 687.
State v. Harbison. The next year, the North Carolina Supreme Court considered the application of these principles in State v. Harbison, 315 N.C. 175 (1985). The defendant in Harbison was charged with murder. Id. at 177. He maintained that he acted in self-defense. Id. During closing argument, the defendant’s attorney expressed his view that the defendant should not be found innocent but should be found guilty of manslaughter. Id. The defendant was convicted of murder. Id. He claimed in a motion for appropriate relief that trial counsel’s admission of his guilt constituted ineffective assistance of counsel under the Sixth Amendment. Id. at 178. The North Carolina Supreme Court agreed, finding the circumstances of the case to be of the type identified in Cronic. 315 N.C. at 179. The court reasoned that “when counsel to the surprise of his client admits his client’s guilt, the harm is so likely and so apparent that the issue of prejudice need not be addressed.” Id. at 180.
Harbison equated defense counsel’s admission of a client’s guilt without the client’s permission as tantamount to the entry of a guilty plea by counsel without the client’s consent, noting that the “gravity of the consequences demands that the decision to plead guilty remains in the defendant’s hands.” Id. at 180. The court went on to hold that “ineffective assistance of counsel, per se in violation of the Sixth Amendment, has been established in every criminal case in which the defendant’s counsel admits the defendant’s guilt to the jury without the defendant’s consent.” Id.
Florida v. Nixon. The defendant In Florida v. Nixon, 543 U.S. 175 (2004), was tried capitally for first degree murder. Defendant’s counsel concluded that the best strategy to spare defendant’s life would be to concede guilt during the trial phase, thereby preserving counsel’s credibility in urging leniency in the penalty phase. Id. at 181. Counsel attempted to explain this strategy to the defendant on multiple occasions. Id. The defendant was generally unresponsive, never verbally approving of or objecting to this proposed course of action. Id. Counsel elected to acknowledge the defendant’s guilt. Id.
The jury found the defendant guilty and recommended the death penalty, which the trial court imposed. Id. at 183-84. The defendant sought postconviction relief, arguing that his trial counsel rendered ineffective assistance by conceding his guilt without obtaining his express consent. Id. at 185. The Florida Supreme Court reversed the defendant’s conviction and granted him a new trial, deeming defense counsel’s concession to be the functional equivalent of a guilty plea entered without the defendant’s explicit consent. Id. at 185-86. The United States Supreme Court granted review to determine “whether counsel’s failure to obtain the defendant’s express consent to a strategy of conceding guilt in a capital trial automatically renders counsel’s performance deficient, and whether counsel’s effectiveness should be evaluated under Cronic or Strickland.” Id. at 186-87.
Though the Nixon Court acknowledged that defense counsel was “obliged to . . . explain his proposed trial strategy to Nixon,” the Supreme Court determined that in light of the defendant’s constant resistance to answering questions, counsel “was not additionally required to gain express consent before conceding Nixon’s guilt.” Id. at 189. Nixon rejected the Florida Supreme Court’s equation of defense counsel’s concession strategy to a guilty plea as well as its application of the presumed prejudice standard from Cronic. 543 U.S. at 190. The SupremeCourt reasoned that counsel’s concession of the defendant’s guilt did not rank as a failure to function as the Government’s adversary, though it acknowledged that “such a concession in a run-of-the-mine trial might present a closer question.” Id. Rather than the rule from Cronic, Nixon held that the two-part test from Strickland governed the defendant’s claim, explaining:
[I]n a capital case, counsel must consider in conjunction both the guilt and penalty phases in determining how best to proceed. When counsel informs the defendant of the strategy counsel believes to be in the defendant’s best interest and the defendant is unresponsive, counsel’s strategic choice is not impeded by any blanket rule demanding the defendant’s explicit consent. Instead, if counsel’s strategy, given the evidence bearing on the defendant’s guilt, satisfies the Strickland standard, that is the end of the matter; no tenable claim of ineffective assistance would remain.
543 U.S. at 192.
McCoy v. Louisiana. The defendant in McCoy v. Louisiana, 584 U.S. 414 (2018), was tried capitally for three charges of murder. He insisted on his innocence and objected to his trial counsel’s plan to concede his guilt. 584 U.S. 417-19. Nevertheless, the trial court permitted trial counsel to tell the jury the defendant committed three murders and was guilty. Id. The jury convicted the defendant and returned three death verdicts. Id. at 420. The defendant moved for a new trial. Id. After the Louisiana Supreme Court affirmed the trial court’s ruling that defense counsel had the authority to concede guilty despite the defendant’s opposition, the Supreme Court granted review “on the question of whether it is unconstitutional to allow defense counsel to concede guilt over the defendant’s intransigent and unambiguous objection.” Id. The Supreme Court reversed, holding that “[w]hen a client expressly asserts that the objective of ‘his defence’ is to maintain innocence of the charged criminal acts, his lawyer must abide by that objective and may not override it by conceding guilt.” Id. at 423 (quoting U.S. Const. Amdt. 6 (with emphasis added)). McCoy explained that a defendant is not required to surrender control entirely to counsel in order to gain the assistance of counsel guaranteed by the Sixth Amendment. Id. at 421. Instead, a defendant represented by counsel reserves autonomy to maintain his innocence at the guilt phase of a capital trial. Id. at 422.
Because the McCoy Court considered the issue in that case to be “a client’s autonomy, not counsel’s competence,” the court did not apply the two-part Strickland test to McCoy’s claim. 584 U.S. at 427. Instead it held that the violation of a defendant’s Sixth Amendment-secured autonomy was structural error. Id.
Back to Farook.
The Farook Court determined that Harbison (which, like Farook, involved only questions of Sixth Amendment federal constitutional law) had erroneously expanded the per se prejudice rulefrom Cronic. Farook explained that, pursuant to Nixon, the proper analysis of an ineffective assistance of counsel claim premised on counsel’s concession of guilt without the defendant’s consent is the two-part test in Strickland.
Farook identified three ways in which Nixon impacted the “continuing viability” of Harbison. Farook, __ N.C. at ___; Slip op. at 16. First, Nixon rejected the state supreme court’s reasoning below that deemed the attorney’s concessions to be the functional equivalent of a guilty plea. Farook, __ N.C. at ___; Slip op. at 16, 17. Harbison likewise employed that rationale. Farook stated that the erroneous equating of these similar concepts led to the incorrect application of a presumption of prejudice. Id. at ___; Slip op. at 17. Second, Nixon “clearly contemplated that Strickland is the general rule to be applied in most [ineffective assistance of counsel] cases—even those concerning concessions of guilt without the defendant’s permission.” Farook, ___ N.C. at ___; Slip op. at 18. Third, Nixon clarified that the Cronic exception is narrow and applies infrequently, a characterization at odds with Harbison’s blanket rule finding per se prejudice in every case in which counsel admits a defendant’s guilt to the jury without the defendant’s consent. Farook, __ N.C. at ___; Slip op. at 19.
Application of the new rule. Farook applied the rule it had articulated to case at hand determining that the defendant’s counsel “employed a concession strategy to which the defendant agreed, at least in part, as reflected by the pretrial Harbison admissions and the colloquies conducted by the trial court in which defendant agreed to various concessions.” Farook, __ N.C. at ___; Slip op. at 21. Finding that counsel discussed a strategy involving concessions with the defendant before trial and that the defendant was not “wholly surprised” by the attorney’s admission of his guilt, Farook determined that the case did not fall within the Cronic exception and that the Strickland test applied. Id. Then, applying Strickland, the Farook Court determined that the defendant could not show prejudice from the attorney’s concession that the defendant, who was charged with second degree murder, was guilty of lesser included offenses. Farook, __ N.C. at ___; Slip op. at 25 (reasoning in part that the defendant was not convicted of the charges to which counsel conceded his guilt; further noting that counsel’s concession of the defendant’s guilt to lesser included misdemeanor offenses did not admit any elements of the charges for which the defendant was convicted that defendant had not otherwise conceded).
Limitations of the rule. Farook noted that “[i]nfrequently, a defense counsel’s concession of guilt without the defendant’s knowing and voluntary permission may amount to a complete failure to function as the defendant’s advocate.” Farook, ___ N.C. at ___ n.5; Slip op. at 21 n.5. When this occurs, the court recognized that the “‘narrow’ Cronic exception may be invoked, and the prejudice prong may be presumptively satisfied.” Id. (Farook also noted the holding in McCoy that it was structural error for defense counsel in a capital case to concede a defendant’s guilt over the defendant’s intransigent and unambiguous objection.)
Impact on trial practice. Under North Carolina’s existing Harbison jurisprudence, trial courts have been advised to ask defense counsel before opening and closing statements whether counsel plans to admit guilt. See Jessica Smith & Christopher Tyner, Ineffective Assistance of Counsel Claims, in North Carolina Superior Court Judges’ Benchbook 8 (Shea Denning ed. UNC School of Government May 2023). When counsel informs the court of a plan to admit guilt, trial courts are further advised to determine on the record whether the defendant consents to this strategy. See id. at 8-9; see also State v. McAllister, 375 N.C. 455, 477 (2020) (while not the sole measurement of consent, “an on-the record exchange between the trial court and the defendant is the preferred method of determining whether the defendant knowingly and voluntarily consented to an admission of guilt” (internal quotation omitted)). I don’t expect that advice to change following Farook, given that surprise concessions of guilt by counsel still violate the Sixth Amendment, as may concessions of guilt without the defendant’s knowing and voluntary permission in the rare circumstance when they amount to a complete failure to function as the defendant’s advocate. See also Farook, ___ N.C. at ___ ; Slip op. at 46 (Riggs, J., dissenting) (“Trial courts should, of course, continue to conduct routine and thorough Harbison inquiries any time defense counsel seeks to concede elements or guilt of a crime so that we rarely confront a silent record.”) Moreover, concessions of guilt over a defendant’s objection constitute structural error under McCoy. An on-the-record exchange at the time of trial remains the best method for determining the defendant’s knowledge of and acquiescence in such a trial strategy. Thus, I expect Farook to have little impact on trial procedure.
Impact on appeal. Farook will doubtless have greater impact on appeal and postconviction review as the appellate courts in most circumstances will be called upon to evaluate more than whether the defendant consented to a concession of guilt. In addition to making this threshold determination, a reviewing court must further determine whether counsel’s performance was deficient and prejudicial. As Farook itself demonstrates, that will be a more difficult burden for defendants to satisfy.