FLORIDA v. NIXON

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FLORIDA v. NIXON
certiorari to the supreme court of florida
No. 03–931. Argued November 2, 2004—Decided December 13, 2004
Respondent Nixon was arrested for a brutal murder. Questioned by the
police, Nixon described in graphic detail how he had kidnaped and killed
his victim. After gathering overwhelming evidence of his guilt, the
State indicted Nixon for first-degree murder and related crimes. As-
sistant public defender Corin, assigned to represent Nixon, filed a plea
of not guilty and deposed all of the State’s potential witnesses. Satis-
fied that Nixon’s guilt was not subject to reasonable dispute, Corin com-
menced plea negotiations, but the prosecutors refused to recommend a
sentence other than death. Faced with the inevitability of going to trial
on a capital charge, and a strong case for the prosecution, Corin con-
cluded that his best course would be to concede Nixon’s guilt, thereby
preserving credibility for penalty-phase evidence of Nixon’s mental in-
stability, and for defense pleas to spare Nixon’s life. Corin several
times attempted to explain this strategy to Nixon, but Nixon remained
unresponsive, never verbally approving or protesting the proposed
strategy. Overall, Nixon gave Corin very little, if any, assistance or
direction in preparing the case.
When trial began, Nixon engaged in disruptive behavior and absented
himself from most of the proceedings. In his opening statement, Corin
acknowledged Nixon’s guilt and urged the jury to focus on the penalty
phase. During the State’s case in chief, Corin objected to the introduc-
tion of crime scene photographs as unduly prejudicial, cross-examined
witnesses for clarification, and contested several aspects of the jury in-
structions. In his closing argument, Corin again conceded Nixon’s
guilt, declaring that he hoped to persuade the jury during the penalty
phase that Nixon should not be sentenced to death. The jury found
Nixon guilty on all counts. At the penalty phase, Corin argued to the
jury that Nixon was not “an intact human being” and had committed
the murder while afflicted with multiple mental disabilities. Corin
called as witnesses relatives and friends who described Nixon’s child-
hood emotional troubles and his erratic behavior preceding the murder.
Corin also presented expert testimony concerning Nixon’s antisocial
personality, history of emotional instability and psychiatric care, low IQ,
and possible brain damage. In his closing argument, Corin emphasized
Nixon’s youth, the psychiatric evidence, and the jury’s discretion to con-
sider any mitigating circumstances; urged that, if not sentenced to

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death, Nixon would never be released; maintained that the death pen-
alty was not appropriate for a person with Nixon’s impairments; and
asked the jury to spare Nixon’s life. The jury recommended, and the
trial court imposed, the death penalty.
The Florida Supreme Court ultimately reversed, holding that a de-
fense attorney’s concession that his client committed murder, made
without the defendant’s express consent, automatically ranks as prejudi-
cial ineffective assistance of counsel necessitating a new trial under the
standard announced in United States v. Cronic, 466 U. S. 648. Corin’s
concession, according to that court, was the functional equivalent of a
guilty plea in that it allowed the prosecution’s guilt-phase case to pro-
ceed essentially without opposition. Under Boykin v. Alabama, 395
U. S. 238, 242–243, consent to a guilty plea cannot be inferred from si-
lence; similarly, the Florida court stated, a concession of guilt at trial
requires a defendant’s affirmative, explicit acceptance, without which
counsel’s performance is presumably inadequate. While acknowledging
that Nixon was very disruptive and uncooperative at trial and that Cor-
in’s strategy may have been in Nixon’s best interest, the court neverthe-
less declared that silent acquiescence is not enough: Counsel conceding
a defendant’s guilt is inevitably ineffective if the defendant does not
expressly approve counsel’s course.
Held: Counsel’s failure to obtain the defendant’s express consent to a
strategy of conceding guilt in a capital trial does not automatically ren-
der counsel’s performance deficient. Pp. 187–193.
(a) The Florida Supreme Court erred in requiring Nixon’s affirmative,
explicit acceptance of Corin’s strategy because it mistakenly deemed
Corin’s statements to the jury the functional equivalent of a guilty plea.
Despite Corin’s concession of Nixon’s guilt, Nixon retained the rights
accorded a defendant in a criminal trial. Cf. 395 U. S., at 242–243, and
n. 4. The State was obliged to present during the guilt phase compe-
tent, admissible evidence establishing the essential elements of the
crimes with which Nixon was charged. That aggressive evidence
would thus be separated from the penalty phase, enabling the defense
to concentrate that portion of the trial on mitigating factors. Further,
the defense reserved the right to cross-examine witnesses for the prose-
cution and could endeavor, as Corin did, to exclude prejudicial evidence.
Futhermore, in the event of errors in the trial or jury instructions, a
concession of guilt would not hinder the defendant’s right to appeal.
Corin was obliged to, and in fact several times did, explain his proposed
trial strategy to Nixon. Nixon’s characteristic silence each time infor-
mation was conveyed to him did not suffice to render unreasonable Cor-

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in’s decision to concede guilt and to home in, instead, on the life or death
penalty issue. Pp. 187–189.
(b) Counsel’s effectiveness should not be evaluated under the Cronic
standard, but under the standard prescribed in Strickland v. Washing-
ton, 466 U. S. 668, 688: Did counsel’s representation “f[a]ll below an ob-
jective standard of reasonableness?” The Florida Supreme Court’s er-
roneous equation of Corin’s concession strategy to a guilty plea led it to
apply the wrong standard. The court first presumed deficient perform-
ance, then applied the presumption of prejudice that Cronic reserved
for situations in which counsel has entirely failed to function as the cli-
ent’s advocate, 466 U. S., at 659. Corin’s concession of Nixon’s guilt
does not rank as such a failure. Id., at 666. Although a concession of
guilt in a run-of-the-mine trial might present a closer question, the grav-
ity of the potential sentence in a capital trial and the proceeding’s two-
phase structure vitally affect counsel’s strategic calculus. Attorneys
representing capital defendants face daunting challenges in developing
trial strategies: Prosecutors are more likely to seek the death penalty,
and to refuse to accept a plea to a life sentence, when the evidence is
overwhelming and the crime heinous. Counsel therefore may reason-
ably decide to focus on the trial’s penalty phase, at which time counsel’s
mission is to persuade the trier that his client’s life should be spared.
Defense counsel must strive at the guilt phase to avoid a counterproduc-
tive course. Mounting a “defendant did not commit the crime” defense
risks destroying counsel’s penalty-phase credibility and may incline the
jury against leniency for the defendant. In 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 strat-
egy counsel believes to be in the defendant’s best interest and the de-
fendant 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 tena-
ble claim of ineffective assistance would remain. Pp. 189–192.
857 So. 2d 172, reversed and remanded.
Ginsburg, J., delivered the opinion of the Court, in which all other
Members joined, except Rehnquist, C. J., who took no part in the decision
of the case.
George S. Lemieux, Deputy Attorney General of Florida,
argued the cause for petitioner. With him on the briefs
were Charles J. Crist, Jr., Attorney General, Carolyn M.

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Snurkowski, Assistant Deputy Attorney General, and Curtis
M. French, Senior Assistant Attorney General.
Irving L. Gornstein argued the cause for the United
States as amicus curiae urging reversal. With him on the
brief were former Solicitor General Olson, Assistant Attor-
ney General Wray, Deputy Solicitor General Dreeben, and
Sri Srinivasan.
Edward H. Tillinghast III argued the cause for respond-
ent. With him on the brief was Eric M. Freedman.*
Justice Ginsburg delivered the opinion of the Court.
This capital case concerns defense counsel’s strategic deci-
sion to concede, at the guilt phase of the trial, the defendant’s
commission of murder, and to concentrate the defense on
establishing, at the penalty phase, cause for sparing the
defendant’s life. Any concession of that order, the Flor-
ida Supreme Court held, made without the defendant’s ex-
press consent—however gruesome the crime and despite
the strength of the evidence of guilt—automatically ranks
as prejudicial ineffective assistance of counsel necessitating
a new trial. We reverse the Florida Supreme Court’s
judgment.
Defense counsel undoubtedly has a duty to discuss poten-
tial strategies with the defendant. See Strickland v. Wash-
ington, 466 U. S. 668, 688 (1984). But when a defendant, in-
formed by counsel, neither consents nor objects to the course
counsel describes as the most promising means to avert a
sentence of death, counsel is not automatically barred from
pursuing that course. The reasonableness of counsel’s per-
formance, after consultation with the defendant yields no re-
sponse, must be judged in accord with the inquiry generally
applicable to ineffective-assistance-of-counsel claims: Did
counsel’s representation “f[a]ll below an objective standard
of reasonableness”? Id., at 688, 694. The Florida Supreme
*Kent S. Scheidegger and Charles L. Hobson filed a brief for the Crimi-
nal Justice Legal Foundation as amicus curiae urging reversal.

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Court erred in applying, instead, a presumption of deficient
performance, as well as a presumption of prejudice; that lat-
ter presumption, we have instructed, is reserved for cases in
which counsel fails meaningfully to oppose the prosecution’s
case. United States v. Cronic, 466 U. S. 648, 659 (1984). A
presumption of prejudice is not in order based solely on a
defendant’s failure to provide express consent to a tenable
strategy counsel has adequately disclosed to and discussed
with the defendant.
I
On Monday, August 13, 1984, near a dirt road in the envi-
rons of Tallahassee, Florida, a passing motorist discovered
Jeanne Bickner’s charred body. Nixon v. State, 572 So. 2d
1336, 1337 (Fla. 1990) (Nixon I); 13 Record 2464–2466.
Bickner had been tied to a tree and set on fire while still
alive. Id., at 2475, 2483–2484. Her left leg and arm, and
most of her hair and skin, had been burned away. Id., at
2475–2476. The next day, police found Bickner’s car, aban-
doned on a Tallahassee street corner, on fire. Id., at 2520.
Police arrested 23-year-old Joe Elton Nixon later that morn-
ing, after Nixon’s brother informed the sheriff ’s office that
Nixon had confessed to the murder. Id., at 2559.
Questioned by the police, Nixon described in graphic detail
how he had kidnaped Bickner, then killed her.1 He re-
counted that he had approached Bickner, a stranger, in a
mall, and asked her to help him jump-start his car. 5 id., at
919–921. Bickner offered Nixon a ride home in her 1973 MG
sports car. Id., at 922. Once on the road, Nixon directed
Bickner to drive to a remote place; en route, he overpowered
her and stopped the car. Id., at 924, 926–927. Nixon next
put Bickner in the MG’s trunk, drove into a wooded area,
removed Bickner from the car, and tied her to a tree with
1 Although Nixon initially stated that he kidnaped Bickner on August
11, the kidnaping and murder in fact occurred on Sunday, August 12, 1984.
20 Record 3768–3770.

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jumper cables. Id., at 930–931. Bickner pleaded with
Nixon to release her, offering him money in exchange. Id.,
at 928. Concerned that Bickner might identify him, Nixon
decided to kill her. Id., at 929. He set fire to Bickner’s per-
sonal belongings and ignited her with burning objects. Id.,
at 934–935. Nixon drove away in the MG, and later told his
brother and girlfriend what he had done. Id., at 938, 961.
He burned the MG on Tuesday, August 14, after reading in
the newspaper that Bickner’s body had been discovered.
Id., at 963, 982.
The State gathered overwhelming evidence establishing
that Nixon had committed the murder in the manner he de-
scribed. A witness saw Nixon approach Bickner in the
mall’s parking lot on August 12, and observed Bickner taking
jumper cables out of the trunk of her car and giving them to
Nixon. 13 id., at 2447–2448, 2450. Several witnesses told
police they saw Nixon driving around in the MG in the hours
and days following Bickner’s death. See id., at 2456, 2487–
2488, 2498, 2509. Nixon’s palm print was found on the trunk
of the car. Id., at 2548–2549. Nixon’s girlfriend, Wanda
Robinson, and his brother, John Nixon, both stated that
Nixon told them he had killed someone and showed them
two rings later identified as Bickner’s. 5 id., at 971, 987; 13
id., at 2565. According to Nixon’s brother, Nixon pawned
the rings, 5 id., at 986, and attempted to sell the car, id., at
973. At a local pawnshop, police recovered the rings and a
receipt for them bearing Nixon’s driver’s license number; the
pawnshop owner identified Nixon as the person who sold the
rings to him. 13 id., at 2568–2569.
In late August 1984, Nixon was indicted in Leon County,
Florida, for first-degree murder, kidnaping, robbery, and
arson. See App. 1, 55. Assistant public defender Michael
Corin, assigned to represent Nixon, see id., at 232, filed a
plea of not guilty, id., at 468–469, and deposed all of the
State’s potential witnesses, id., at 53–58. Corin concluded,
given the strength of the evidence, that Nixon’s guilt was

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not “subject to any reasonable dispute.” Id., at 490.2 Corin
thereupon commenced plea negotiations, hoping to persuade
the prosecution to drop the death penalty in exchange for
Nixon’s guilty pleas to all charges. Id., at 336–338, 507.
Negotiations broke down when the prosecutors indicated
their unwillingness to recommend a sentence other than
death. See id., at 339, 508.
Faced with the inevitability of going to trial on a capital
charge, Corin turned his attention to the penalty phase, be-
lieving that the only way to save Nixon’s life would be to
present extensive mitigation evidence centering on Nixon’s
mental instability. Id., at 261, 473; see also id., at 102. Ex-
perienced in capital defense, see id., at 248–250, Corin feared
that denying Nixon’s commission of the kidnaping and mur-
der during the guilt phase would compromise Corin’s ability
to persuade the jury, during the penalty phase, that Nixon’s
conduct was the product of his mental illness. See id., at
473, 490, 505. Corin concluded that the best strategy would
be to concede guilt, thereby preserving his credibility in urg-
ing leniency during the penalty phase. Id., at 458, 505.
Corin attempted to explain this strategy to Nixon at least
three times. Id., at 254–255. Although Corin had repre-
sented Nixon previously on unrelated charges and the two
had a good relationship in Corin’s estimation, see id., at 466–
467, Nixon was generally unresponsive during their discus-
sions, id., at 478–480. He never verbally approved or pro-
tested Corin’s proposed strategy. Id., at 234–238, 255, 501.
Overall, Nixon gave Corin very little, if any, assistance or
direction in preparing the case, id., at 478, and refused to
attend pretrial dispositions of various motions, Nixon I, 572
So. 2d, at 1341; App. 478. Corin eventually exercised his
2 Every court to consider this case, including the judge who presided
over Nixon’s trial, agreed with Corin’s assessment of the evidence. See,
e. g., Nixon v. Singletary, 758 So. 2d 618, 625 (Fla. 2000) (per curiam)
(evidence of guilt was “overwhelming”); State v. Nixon, Case No. 84–2324
(Fla. Cir. Ct., Oct. 22, 1997), App. 385; 21 Record 4009–4010.

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professional judgment to pursue the concession strategy.
As he explained: “There are many times lawyers make deci-
sions because they have to make them because the client
does nothing.” Id., at 486.
When Nixon’s trial began on July 15, 1985, his unrespon-
siveness deepened into disruptive and violent behavior. On
the second day of jury selection, Nixon pulled off his cloth-
ing, demanded a black judge and lawyer, refused to be es-
corted into the courtroom, and threatened to force the
guards to shoot him. Nixon I, 572 So. 2d, at 1341; 10 Record
1934–1935. An extended on-the-record colloquy followed
Nixon’s bizarre behavior, during which Corin urged the trial
judge to explain Nixon’s rights to him and ascertain whether
Nixon understood the significance of absenting himself from
the trial. Corin also argued that restraining Nixon and
compelling him to be present would prejudice him in the
eyes of the jury. Id., at 1918–1920. When the judge exam-
ined Nixon on the record in a holding cell, Nixon stated he
had no interest in the trial and threatened to misbehave if
forced to attend. Id., at 1926–1931. The judge ruled that
Nixon had intelligently and voluntarily waived his right to
be present at trial. Id., at 1938; 11 id., at 2020.
The guilt phase of the trial thus began in Nixon’s absence.3
In his opening statement, Corin acknowledged Nixon’s guilt
and urged the jury to focus on the penalty phase:
“In this case, there won’t be any question, none what-
soever, that my client, Joe Elton Nixon, caused Jeannie
Bickner’s death. . . . [T]hat fact will be proved to your
satisfaction beyond any doubt.
“This case is about the death of Joe Elton Nixon and
whether it should occur within the next few years by
3 Except for a brief period during the second day of the trial, Nixon
remained absent throughout the proceedings. See Nixon I, 572 So. 2d
1336, 1341–1342 (Fla. 1990); Brief for Petitioner 6, n. 8.

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electrocution or maybe its natural expiration after a life-
time of confinement.
. . . . .
“Now, in arriving at your verdict, in your penalty rec-
ommendation, for we will get that far, you are going to
learn many facts . . . about Joe Elton Nixon. Some of
those facts are going to be good. That may not seem
clear to you at this time. But, and sadly, most of the
things you learn of Joe Elton Nixon are not going to be
good. But, I’m suggesting to you that when you have
seen all the testimony, heard all the testimony and the
evidence that has been shown, there are going to be rea-
sons why you should recommend that his life be spared.”
App. 71–72.
During its case in chief, the State introduced the tape of
Nixon’s confession, expert testimony on the manner in which
Bickner died, and witness testimony regarding Nixon’s con-
fessions to his relatives and his possession of Bickner’s car
and personal effects. Corin cross-examined these witnesses
only when he felt their statements needed clarification, see,
e. g., 13 Record 2504, and he did not present a defense case,
20 id., at 3741. Corin did object to the introduction of crime
scene photographs as unduly prejudicial, 13 id., at 2470, and
actively contested several aspects of the jury instructions
during the charge conference, 11 id., at 2050–2058. In his
closing argument, Corin again conceded Nixon’s guilt, App.
73, and reminded the jury of the importance of the penalty
phase: “I will hope to . . . argue to you and give you reasons
not that Mr. Nixon’s life be spared one final and terminal
confinement forever, but that he not be sentenced to die,”
id., at 74. The jury found Nixon guilty on all counts.
At the start of the penalty phase, Corin argued to the jury
that “Joe Elton Nixon is not normal organically, intellectu-
ally, emotionally or educationally or in any other way.” Id.,
at 102. Corin presented the testimony of eight witnesses.

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Relatives and friends described Nixon’s childhood emotional
troubles and his erratic behavior in the days preceding the
murder. See, e. g., id., at 108–120. A psychiatrist and a
psychologist addressed Nixon’s antisocial personality, his his-
tory of emotional instability and psychiatric care, his low IQ,
and the possibility that at some point he suffered brain dam-
age. Id., at 143–147, 162–166. The State presented little
evidence during the penalty phase, simply incorporating its
guilt-phase evidence by reference, and introducing testi-
mony, over Corin’s objection, that Nixon had removed Bick-
ner’s underwear in order to terrorize her. Id., at 105–106.
In his closing argument, Corin emphasized Nixon’s youth,
the psychiatric evidence, and the jury’s discretion to consider
any mitigating circumstances, id., at 194–199; Corin urged
that, if not sentenced to death, “Joe Elton Nixon would
[n]ever be released from confinement,” id., at 207. The
death penalty, Corin maintained, was appropriate only for
“intact human being[s],” and “Joe Elton Nixon is not one of
those. He’s never been one of those. He never will be one
of those.” Id., at 209. Corin concluded: “You know, we’re
not around here all that long. And it’s rare when we have
the opportunity to give or take life. And you have that op-
portunity to give life. And I’m going to ask you to do that.
Thank you.” Ibid. After deliberating for approximately
three hours, the jury recommended that Nixon be sentenced
to death. See 21 Record 4013.
In accord with the jury’s recommendation, the trial court
imposed the death penalty. Nixon I, 572 So. 2d, at 1338.
Notably, at the close of the penalty phase, the court com-
mended Corin’s performance during the trial, stating that
“the tactic employed by trial counsel . . . was an excellent
analysis of [the] reality of his case.” 21 Record 4009. The
evidence of guilt “would have persuaded any jury . . . beyond
all doubt,” and “[f]or trial counsel to have inferred that
Mr. Nixon was not guilty . . . would have deprived [counsel]
of any credibility during the penalty phase.” Id., at 4010.

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On direct appeal to the Florida Supreme Court, Nixon,
represented by new counsel, argued that Corin had rendered
ineffective assistance by conceding Nixon’s guilt without ob-
taining Nixon’s express consent. Nixon I, 572 So. 2d, at
1338–1339. Relying on United States v. Cronic, 466 U. S.
648 (1984), new counsel urged that Corin’s concession should
be presumed prejudicial because it left the prosecution’s case
unexposed to “meaningful adversarial testing,” id., at 658–
659. The Florida Supreme Court remanded for an eviden-
tiary hearing on whether Nixon consented to the strategy,
see App. 216–217, but ultimately declined to rule on the mat-
ter, finding the evidence of Corin’s interactions with Nixon
inconclusive, Nixon I, 572 So. 2d, at 1340.
In a motion for postconviction relief pursuant to Florida
Rule of Criminal Procedure 3.850 (1999), Nixon renewed
his Cronic-based “presumption of prejudice” ineffective-
assistance-of-counsel claim.4 After the trial court rejected
the claim, State v. Nixon, Case No. 84–2324 (Cir. Ct., Oct. 22,
1997), App. 389–390, the Florida Supreme Court remanded
for a further hearing on Nixon’s consent to defense counsel’s
strategy. Nixon v. Singletary, 758 So. 2d 618, 625 (2000)
(Nixon II). Corin’s concession, according to the Florida Su-
preme Court, was the “functional equivalent of a guilty plea”
in that it allowed the prosecution’s guilt-phase case to
proceed essentially without opposition. Id., at 622–624.
Under Boykin v. Alabama, 395 U. S. 238, 242–243 (1969), a
guilty plea cannot be inferred from silence; it must be based
on express affirmations made intelligently and voluntarily.
Similarly, the Florida Supreme Court stated, a concession
of guilt at trial requires a defendant’s “affirmative, explicit
acceptance,” without which counsel’s performance is pre-
4 Nixon contended in the alternative that Corin’s decision to concede
guilt was unreasonable and prejudicial under the generally applicable
standard set out in Strickland v. Washington, 466 U. S. 668 (1984). App.
385, 389; see supra, at 178. Nixon also raised several other challenges to
his conviction and sentence. See App. 378–384, 390–392.

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sumptively inadequate. Nixon II, 758 So. 2d, at 624. The
court acknowledged that Nixon was “very disruptive and un-
cooperative at trial,” and that “counsel’s strategy may have
been in Nixon’s best interest.” Id., at 625. Nevertheless,
the court firmly declared that “[s]ilent acquiescence is not
enough,” id., at 624; counsel who concedes a defendant’s guilt
is inevitably ineffective, the court ruled, if the defendant
does not expressly approve counsel’s course, id., at 625.
On remand, Corin testified that he explained his view of
the case to Nixon several times, App. 479–480, and that at
each consultation, Nixon “did nothing affirmative or nega-
tive,” id., at 481–482; see also id., at 486–487. Failing to
elicit a definitive response from Nixon, Corin stated, he
chose to pursue the concession strategy because, in his pro-
fessional judgment, it appeared to be “the only way to
save [Nixon’s] life.” Id., at 472. Nixon did not testify at
the hearing. The trial court found that Nixon’s “natural
pattern of communication” with Corin involved passively
receiving information, and that Nixon consented to the
strategy “through his behavior.” State v. Nixon, Case
No. R84–2324AF (Fla. Cir. Ct., Sept. 20, 2001), p. 13; 2
Record 378.
Observing that “no competent, substantial evidence . . .
establish[ed] that Nixon affirmatively and explicitly agreed
to counsel’s strategy,” the Florida Supreme Court reversed
and remanded for a new trial. Nixon v. State, 857 So. 2d
172, 176 (2003) (Nixon III) (emphasis in original). Three
justices disagreed with the majority’s determination that
Corin’s concession rendered his representation inadequate.
Id., at 183 (Lewis, J., concurring in result); id., at 189 (Wells,
J., joined by Shaw, S. J., dissenting).
We granted certiorari, 540 U. S. 1217 (2004), to resolve an
important question of constitutional law, i. e., whether coun-
sel’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 coun-

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sel’s effectiveness should be evaluated under Cronic or
Strickland. We now reverse the judgment of the Florida
Supreme Court.
II
An attorney undoubtedly has a duty to consult with the
client regarding “important decisions,” including questions
of overarching defense strategy. Strickland, 466 U. S., at
688. That obligation, however, does not require counsel to
obtain the defendant’s consent to “every tactical decision.”
Taylor v. Illinois, 484 U. S. 400, 417–418 (1988) (an attorney
has authority to manage most aspects of the defense without
obtaining his client’s approval). But certain decisions re-
garding the exercise or waiver of basic trial rights are of
such moment that they cannot be made for the defendant
by a surrogate. A defendant, this Court affirmed, has “the
ultimate authority” to determine “whether to plead guilty,
waive a jury, testify in his or her own behalf, or take an
appeal.” Jones v. Barnes, 463 U. S. 745, 751 (1983); Wain-
wright v. Sykes, 433 U. S. 72, 93, n. 1 (1977) (Burger, C. J.,
concurring). Concerning those decisions, an attorney must
both consult with the defendant and obtain consent to the
recommended course of action.
A guilty plea, we recognized in Boykin v. Alabama, 395
U. S. 238 (1969), is an event of signal significance in a crimi-
nal proceeding. By entering a guilty plea, a defendant
waives constitutional rights that inhere in a criminal trial,
including the right to trial by jury, the protection against
self-incrimination, and the right to confront one’s accusers.
Id., at 243. While a guilty plea may be tactically advanta-
geous for the defendant, id., at 240, the plea is not simply a
strategic choice; it is “itself a conviction,” id., at 242, and the
high stakes for the defendant require “the utmost solici-
tude,” id., at 243. Accordingly, counsel lacks authority to
consent to a guilty plea on a client’s behalf, Brookhart v.
Janis, 384 U. S. 1, 6–7 (1966); moreover, a defendant’s tacit

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acquiescence in the decision to plead is insufficient to render
the plea valid, Boykin, 395 U. S., at 242.
The Florida Supreme Court, as just observed, see supra,
at 185–186, required Nixon’s “affirmative, explicit accept-
ance” of Corin’s strategy because it deemed Corin’s state-
ments to the jury “the functional equivalent of a guilty plea.”
Nixon II, 758 So. 2d, at 624. We disagree with that
assessment.
Despite Corin’s concession, Nixon retained the rights ac-
corded a defendant in a criminal trial. Cf. Boykin, 395 U. S.,
at 242–243, and n. 4 (a guilty plea is “more than a confession
which admits that the accused did various acts,” it is a “stip-
ulation that no proof by the prosecution need be advanced”
(internal quotation marks omitted)). The State was obliged
to present during the guilt phase competent, admissible evi-
dence establishing the essential elements of the crimes with
which Nixon was charged. That aggressive evidence would
thus be separated from the penalty phase, enabling the de-
fense to concentrate that portion of the trial on mitigating
factors. See supra, at 181, 183–184. Further, the defense
reserved the right to cross-examine witnesses for the prose-
cution and could endeavor, as Corin did, to exclude prejudi-
cial evidence. See supra, at 183. In addition, in the event
of errors in the trial or jury instructions, a concession of guilt
would not hinder the defendant’s right to appeal.
Nixon nevertheless urges, relying on Brookhart v. Janis,
that this Court has already extended the requirement of “af-
firmative, explicit acceptance” to proceedings “surrender-
[ing] the right to contest the prosecution’s factual case on
the issue of guilt or innocence.” Brief for Respondent 32.
Defense counsel in Brookhart had agreed to a “prima facie”
bench trial at which the State would be relieved of its obliga-
tion to put on “complete proof ” of guilt or persuade a jury
of the defendant’s guilt beyond a reasonable doubt. 384
U. S., at 5–6. In contrast to Brookhart, there was in Nixon’s

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case no “truncated” proceeding, id., at 6, shorn of the need
to persuade the trier “beyond a reasonable doubt,” and of the
defendant’s right to confront and cross-examine witnesses.
While the “prima facie” trial in Brookhart was fairly charac-
terized as “the equivalent of a guilty plea,” id., at 7, the full
presentation to the jury in Nixon’s case does not resemble
that severely abbreviated proceeding. Brookhart, in short,
does not carry the weight Nixon would place on it.
Corin was obliged to, and in fact several times did, explain
his proposed trial strategy to Nixon. See supra, at 181, 186.
Given Nixon’s constant resistance to answering inquiries put
to him by counsel and court, see Nixon III, 857 So. 2d, at
187–188 (Wells, J., dissenting), Corin was not additionally re-
quired to gain express consent before conceding Nixon’s
guilt. The two evidentiary hearings conducted by the Flor-
ida trial court demonstrate beyond doubt that Corin fulfilled
his duty of consultation by informing Nixon of counsel’s pro-
posed strategy and its potential benefits. Nixon’s character-
istic silence each time information was conveyed to him, in
sum, did not suffice to render unreasonable Corin’s decision
to concede guilt and to home in, instead, on the life or death
penalty issue.
The Florida Supreme Court’s erroneous equation of Cor-
in’s concession strategy to a guilty plea led it to apply the
wrong standard in determining whether counsel’s perform-
ance ranked as ineffective assistance. The court first pre-
sumed deficient performance, then applied the presumption
of prejudice that United States v. Cronic, 466 U. S. 648
(1984), reserved for situations in which counsel has entirely
failed to function as the client’s advocate. The Florida court
therefore did not hold Nixon to the standard prescribed in
Strickland v. Washington, 466 U. S. 668 (1984), which would
have required Nixon to show that counsel’s concession strat-
egy was unreasonable. As Florida Supreme Court Justice
Lewis observed, that court’s majority misunderstood Cronic
and failed to attend to the realities of defending against a

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capital charge. Nixon III, 857 So. 2d, at 180–183 (opinion
concurring in result).
Cronic recognized a narrow exception to Strickland’s
holding that a defendant who asserts ineffective assistance
of counsel must demonstrate not only that his attorney’s per-
formance was deficient, but also that the deficiency preju-
diced the defense. Cronic instructed that a presumption of
prejudice would be in order in “circumstances that are so
likely to prejudice the accused that the cost of litigating their
effect in a particular case is unjustified.” 466 U. S., at 658.
The Court elaborated: “[I]f counsel entirely fails to subject
the prosecution’s case to meaningful adversarial testing,
then there has been a denial of Sixth Amendment rights that
makes the adversary process itself presumptively unrelia-
ble.” Id., at 659; see Bell v. Cone, 535 U. S. 685, 696–697
(2002) (for Cronic’s presumed prejudice standard to apply,
counsel’s “failure must be complete”). We illustrated just
how infrequently the “surrounding circumstances [will] jus-
tify a presumption of ineffectiveness” in Cronic itself. In
that case, we reversed a Court of Appeals ruling that ranked
as prejudicially inadequate the performance of an inexperi-
enced, underprepared attorney in a complex mail fraud trial.
466 U. S., at 662, 666.
On the record thus far developed, Corin’s concession of
Nixon’s guilt does not rank as a “fail[ure] to function in any
meaningful sense as the Government’s adversary.” Id., at
666.5 Although such a concession in a run-of-the-mine trial
might present a closer question, the gravity of the potential
sentence in a capital trial and the proceeding’s two-phase
5 In his brief before this Court, Nixon describes inconsistencies in the
State’s evidence at the guilt phase of the trial. See Brief for Respondent
13–22. Corin’s failure to explore these inconsistencies, measured against
the Strickland standard, 466 U. S., at 690, Nixon maintains, constituted
ineffective assistance of counsel. The Florida Supreme Court did not ad-
dress the alleged inconsistencies and we decline to consider the matter in
the first instance.

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structure vitally affect counsel’s strategic calculus. Attor-
neys representing capital defendants face daunting chal-
lenges in developing trial strategies, not least because the
defendant’s guilt is often clear. Prosecutors are more likely
to seek the death penalty, and to refuse to accept a plea to a
life sentence, when the evidence is overwhelming and the
crime heinous. See Goodpaster, The Trial for Life: Effec-
tive Assistance of Counsel in Death Penalty Cases, 58
N. Y. U. L. Rev. 299, 329 (1983).6 In such cases, “avoiding
execution [may be] the best and only realistic result possi-
ble.” ABA Guidelines for the Appointment and Perform-
ance of Defense Counsel in Death Penalty Cases § 10.9.1,
Commentary (rev. ed. 2003), reprinted in 31 Hofstra L. Rev.
913, 1040 (2003).
Counsel therefore may reasonably decide to focus on the
trial’s penalty phase, at which time counsel’s mission is to
persuade the trier that his client’s life should be spared.
Unable to negotiate a guilty plea in exchange for a life sen-
tence, defense counsel must strive at the guilt phase to avoid
a counterproductive course. See Lyon, Defending the Death
Penalty Case: What Makes Death Different? 42 Mercer L.
Rev. 695, 708 (1991) (“It is not good to put on a ‘he didn’t do
it’ defense and a ‘he is sorry he did it’ mitigation. This just
does not work. The jury will give the death penalty to the
6 As Corin determined here, pleading guilty without a guarantee that
the prosecution will recommend a life sentence holds little if any benefit
for the defendant. See ABA Guidelines for the Appointment and Per-
formance of Defense Counsel in Death Penalty Cases § 10.9.2, Commentary
(rev. ed. 2003), reprinted in 31 Hofstra L. Rev. 913, 1045 (2003) (“If no
written guarantee can be obtained that death will not be imposed follow-
ing a plea of guilty, counsel should be extremely reluctant to participate
in a waiver of the client’s trial rights.”). Pleading guilty not only relin-
quishes trial rights, it increases the likelihood that the State will introduce
aggressive evidence of guilt during the sentencing phase, so that the grue-
some details of the crime are fresh in the jurors’ minds as they deliberate
on the sentence. See Goodpaster, 58 N. Y. U. L. Rev., at 331; supra, at
184, 188.

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client and, in essence, the attorney.”); Sundby, The Capital
Jury and Absolution: The Intersection of Trial Strategy, Re-
morse, and the Death Penalty, 83 Cornell L. Rev. 1557, 1589–
1591 (1998) (interviews of jurors in capital trials indicate that
juries approach the sentencing phase “cynically” where coun-
sel’s sentencing-phase presentation is logically inconsistent
with the guilt-phase defense); id., at 1597 (in capital cases, a
“run-of-the-mill strategy of challenging the prosecution’s
case for failing to prove guilt beyond a reasonable doubt”
can have dire implications for the sentencing phase). In this
light, counsel cannot be deemed ineffective for attempting to
impress the jury with his candor and his unwillingness to
engage in “a useless charade.” See Cronic, 466 U. S., at
656–657, n. 19. Renowned advocate Clarence Darrow, we
note, famously employed a similar strategy as counsel for
the youthful, cold-blooded killers Richard Loeb and Nathan
Leopold. Imploring the judge to spare the boys’ lives, Dar-
row declared: “I do not know how much salvage there is in
these two boys. . . . I will be honest with this court as I have
tried to be from the beginning. I know that these boys are
not fit to be at large.” Attorney for the Damned: Clarence
Darrow in the Courtroom 84 (A. Weinberg ed. 1989); see
Tr. of Oral Arg. 40–41 (Darrow’s clients “did not expressly
consent to what he did. But he saved their lives.”); cf.
Yarborough v. Gentry, 540 U. S. 1, 9–10 (2003) (per curiam).
To summarize, in 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 strate-
gic 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.

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* * *
For the reasons stated, the judgment of the Florida Su-
preme Court is reversed, and the case is remanded for fur-
ther proceedings not inconsistent with this opinion.
It is so ordered.
The Chief Justice took no part in the decision of this
case.