Will failure to call witnesses affect a Connecticut habeas corpus case? You can find out about the impact of these failures on this page.

“The failure of defense counsel to call a potential defense witness does not constitute ineffective assistance of counsel unless there is some showing that the testimony would have been helpful in establishing the asserted defense. Defense counsel is deemed ineffective only when a defendant has informed his attorney of the existence of the witness and that the attorney, without a reasonable investigation and without adequate explanation, failed to call the witness at trial. The reasonableness of an investigation must get evaluated not through hindsight but from the perspective of the attorney when he was conducting it.” State v. Talton, 197 Conn. 280, 297-98 (1985).

In addition, see Accord Gaines v. Commissioner, 306 Conn. 664, 680-81, 684 (2012); see also Eze v. Senkowski, 321 F.3d 110, 129 (2nd Cir. 2003)(“the decision not to call a witness must be grounded in some strategy that advances the client’s interests”). Also, logic dictates that scrutiny of counsel’s decision not to call a witness should not be limited to those instances where the defendant informed counsel of the witness’ existence, but should also include those instances where counsel learned of the witness through other sources, such as the State’s pretrial disclosures or private investigation interviews of other witnesses.

Additionally, “an error on the part of counsel in failing to call a witness cannot be considered prejudicial, as affecting the outcome of the trial, when the evidence the witness would have given would have been cumulative.” Chace v. Bronson, 19 Conn. App. 674, 681, cert. denied, 231 Conn. 801 (1989).

Failure to Call Witness

Also consider defense counsel’s failure to call a witness at trial was found deficient under Strickland in the following habeas cases: Bryant v. Commissioner, 290 Conn. 502, 509-18 (performance deficient when counsel without adequate explanation failed to present witnesses whose testimony supported third party culpability defense and undercut State’s evidence), cert. denied sub nom., also, Murphy v. Bryant, 558 U.S. 938 (2009); in addition, Vasquez v. Commissioner, 107 Conn. App. 181, 185 (2008)(performance deficient when counsel without adequate explanation failed to present alibi witnesses); finally, Siano v. Warden, 31 Conn. App. 94, 100-05 (performance deficient when counsel without adequate explanation failed to present physician as lone neutral witness to testify that defendant was incapable of committing crime due to injury), cert denied, 226 Conn. 910 (1993).

Defense counsel’s failure to call a witness at trial was found not to be deficient under Strickland in the following habeas cases: Mozell v. Commissioner, 291 Conn. 62, 79 (2009)(decision not to present witness consistent with theory of defense); in addition, Thompson v. Commissioner, 131 Conn. App. 671, 694-97 (decision not to interview and present two witnesses did not render investigation inadequate because counsel determined that testimony would contradict defense theory), cert. denied , 303 Conn. 902 (2011).

Also consider Stepney v. Commissioner, 129 Conn. App. 364, 367-68 (2011) (failure to investigate and to introduce DNA report was matter of trial strategy), cert. denied, 315 Conn. 907 (2014); and State v. Gay, 108 Conn. App. 211, 218-19 (decision not to call victim at trial not ineffective because counsel believed victim uncooperative and potentially harmful to defense case), cert. denied, 288 Conn. 913 (2008); finally Chace v. Bronson, 19 Conn. App. at 680- 82 (decision not to call witness at trial not ineffective because testimony might have been damaging).

Cases

Noteworthy cases outside Connecticut include Harris v. Reed, 894 F.2d 871 (7th Cir. 1990)(trial counsel’s decision not to interview and call at trial two witnesses who identified a different perpetrator running from the homicide scene because he believed that the State’s case was weak, that he had successfully impeached the key witness, and that the jury would deliberate for only a short time and find for the defendant was not reasonably competent and undermined the verdict).

Deficient performance stemming from counsel’s failure without adequate explanation to present a favorable witness at trial gets discussed in J. Burkoff & N. Burkoff, Ineffective Assistance Of Counsel (2012 Ed.), §§ 6:34 and 7:19.

Incompetent Witnesses

In Summerville v. Warden, 229 Conn. 397 (1994), the Connecticut Supreme Court declined to consider the certified question of whether an expert’s negligence may be imputed to trial counsel and thus serve as a basis for ineffective assistance of counsel. Also see Id. at 398-418. Other courts, however, have held that the failure to spend adequate time with a defense expert before trial can constitute ineffective assistance of counsel. See, e.g., Tiller v. United States, 419 A.2d 970 (D.C. App. 1980). Further, the failure to provide the complete records to the expert, thus weakening the expert’s opinion, can constitute ineffective assistance of counsel. See, e.g. Hill v. Lockhart, 824 F.Supp. 1327 (E.D.Ark. 1993), rev’d on other grounds, 28 F.3d 832 (8th Cir. 1994).

Additional cases to consult include Richey v. Mitchell, 395 F.3d 660, 682-88 (6th Cir. 2005) and Bloom v. Calderon, 132 F.3d 1267 (9th Cir. 1997), cert. denied, 523 U.S. 1145 (1998).

Also, somewhat related to this area is Maryland v. Kulbicki, 577 U.S. (2015), 2015 WL 5774453, where the Supreme Court held that trial counsel’s failure to recognize or attack bad science before it is known to be bad does not constitute ineffectiveness.

Defendant’s Right/Failure to Testify

In addition, Strickland’s two-prong inquiry applies to a claim concerning any exercise of the defendant’s right to testify. Also see Commissioner v. Rodriguez , 222 Conn. 469, 476 (1992)(“claims that the defendant’s right to testify was violated by defense counsel is a claim of ineffective assistance of counsel [pursuant to] Strickland”); see also Ostolaza v. Warden, 26 Conn. App. 758, 764, cert. denied, 222 Conn. 906 (1992). Habeas counsel should also consult General Statutes § 54-84.