“My lawyer didn’t call my witnesses at trial. Is there anything I can do?”

I often hear from clients that their attorney did not investigate a potential witness, did not call the witness at trial, or did not ask the right questions of a witness. Such omissions have dire consequences. A subpar performance at trial can result in the loss of decades of freedom or life in prison.

So, what can you do about it?

Since criminal defendants have the constitutional right to the assistance of counsel, they also have the right to the effective assistance of counsel. [1] After all, what good would the right to counsel be if it only required a person with a heartbeat and law license standing mute beside the defendant? Showing a violation of this right requires the moving party to prove deficient performance and resulting prejudice. [2] Deficient performance means that the attorney’s performance fell below an objective standard of reasonableness. Prejudice means that there is a reasonable probability that the results of the proceeding would have been different if the attorney had provided effective assistance.

Making a claim of ineffective assistance of counsel based on counsel’s failure to present a witness requires different things depending on where the claim is made. In Alabama, five elements are required to make a facially sufficient claim. The claim must include

(1) the witness’s identity;

(2) the content of the witness’s expected testimony;

(3) facts showing that the testimony was favorable to the defendant;

(4) facts showing that the witness was available to testify at the trial and would have testified; and

(5) a showing that a reasonable investigation would have led trial counsel to the witness. [3]

Ineffective assistance of counsel claims such as the failure to call a witness should be brought under a Rule 32 petition for relief from conviction or sentence. Ineffective assistance of counsel claims must be brought in the first Rule 32 petition and are subject to a strict one (1) year timeframe. [4]

For federal prisoners, it is different. The decision of what witnesses to call is a matter of trial strategy that courts are hesitant to second-guess. [5] If the attorney did not investigate the uncalled witness, counsel’s failure to investigate the witness is reasonable only if reasonable, professional judgment supports counsel’s decision. [6] The viability of the claim depends on the details of the case, the communications between the defendant and the attorney, and the government’s evidence of guilt. Specific factual allegations are also required. [7] It is not enough to make conclusory allegations. Claims of ineffective assistance of counsel based on counsel’s failure to present a witness at trial may be brought under a 2255 petition to vacate, set aside, or correct a sentence by a person in federal custody. [8] Such petitions must be filed within one (1) year of the judgment and sentence becoming final. It should be noted that newly discovered evidence provides an exception.

To prevail on the ineffective assistance of counsel claim, you must also show that there is a reasonable probability that the unpresented witness would have led to a different outcome in the case, such as the jury finding you not guilty. The Supreme Court has defined this “reasonable probability” as less than a preponderance. [9]

To sum it up, if your attorney did not present certain witnesses at your trial, there may be a potential claim of ineffective assistance of counsel. The viability of these claims turns on the details of the case. If you or someone you love needs help navigating complex decisions of ineffective assistance of counsel, contact Peter Armstrong, Attorney at Law, for a free consultation.

References:

1.    Yarborough v. Gentry, 540 U.S. 1, 5 (2003). (https://supreme.justia.com/cases/federal/us/540/1/)

2.    Strickland v. Washington, 466 U.S. 668, 685-87 (1984). (https://supreme.justia.com/cases/federal/us/466/668/)

3.    Stallworth v. State, 171 So. 3d 53, 68 (Ala. Crim. App. 2013). (https://www.casemine.com/judgement/us/5914fbbdadd7b049349af777)

4.    Alabama Rule of Criminal Procedure 32.2(c) & (d). (https://judicial.alabama.gov/docs/library/rules/cr32_2.pdf)

5.    Waters v. Thomas, 46 F.3d 1506, 1512 (11th Cir. 1995). (https://www.leagle.com/decision/1995155246f3d150611343)

6.    Chandler v. U.S., 218 F.3d 1305, 1318 (11th Cir. 2000). (https://case-law.vlex.com/vid/chandler-v-u-s-894662521)

7.    Lynn v. U.S., 365 F.3d 1225, 1238-39 (11th Cir. 2004). (https://law.justia.com/cases/federal/appellate-courts/F3/365/1225/608983/)

8.    28 U.S.C. § 2255. (https://www.law.cornell.edu/uscode/text/28/2255)

9.    Strickland, 466 U.S. at 693-94.