What if My Lawyer Won’t Talk to My Witnesses?

Help! I’m charged with a crime, I didn’t do it, and my lawyer won’t talk to my witnesses!

Sometimes, a person goes to trial, they are convicted, and then, after the trial, they claim they told their lawyer about their alibi witnesses. Alibi witnesses that their lawyer never talked to and did not call as witnesses at their trial…

Can they get a new trial through post-conviction relief (PCR)? The answer depends…

  • Will the witness’s testimony at the PCR hearing support the alibi defense?
  • Did the defendant tell the defense lawyer about their alibi witnesses?
  • Should the defense lawyer have found those witnesses anyway?
  • Will your defense lawyer testify truthfully about their mistakes, or will they try to protect their own reputation at the PCR hearing?
  • Who is the PCR judge?
  • Who is your PCR lawyer, and will they talk to the witnesses and subpoena them to your PCR hearing?

Can I Get a New Trial if My Lawyer Won’t Talk to My Witnesses?

Hopefully, your attorney is investigating your case including talking to all potential witnesses.

If your lawyer won’t talk to your witnesses, doesn’t call them at trial, and you are convicted, you might be granted a new trial in PCR proceedings but there’s no guarantee…

For example, in Walker v. State, the SC Supreme Court upheld the circuit court’s grant of PCR where the defendant was convicted of kidnapping and raping a woman, the defendant’s girlfriend would have testified that he was home with her on the night of the alleged rape, but the defense lawyer did not interview her or call her as a witness.

The Witnesses Must Testify at Your PCR Hearing

You won’t get a new trial if your PCR lawyer also does not interview the potential witnesses and call them to testify at your PCR hearing…

The Court must know what their testimony would have been if they had been called as witnesses at your trial. Then, if the Court finds that there is a reasonable probability that the outcome at trial would have been different had they testified, the Court will order a new trial (or the Supreme Court may order a new trial if the circuit court denies PCR).

What if I Didn’t Tell My Lawyer About the Witnesses?

In my opinion, it shouldn’t matter if you told your attorney about the witnesses or not. Whether or not you hand your lawyer a comprehensive list of potential witnesses, your defense attorney has a duty to independently investigate your case and talk to every potential witness.

A failure to investigate, including failure to talk to every potential witness in a case, is ineffective assistance of counsel, the first prong of the Strickland v. Washington test for post-conviction relief.

Whether the testimony of the missing witnesses would have made a difference is the second prong of the Strickland v. Washington test – prejudice.

As a practical matter, however, it does matter if you told your attorney about potential witnesses.

If the attorney was not put on notice that there were potential witnesses they needed to interview, the witnesses were not referenced in the discovery materials, and you did not tell your lawyer, it is not ineffective assistance of counsel (the first Strickland prong) even if there was prejudice (the second Strickland prong).

What if My PCR Judge Won’t Let the Witnesses Testify?

In Goss v. State, decided last week, the SC Supreme Court reversed a circuit court’s denial of PCR where Goss had multiple witnesses who were prepared to testify at his PCR hearing, but the PCR judge refused to hear their testimony and, instead, “took judicial notice” as to what they would say before she denied PCR.

Goss testified that his trial lawyer met with him only one time prior to trial and that was to discuss a plea offer with him. He further testified that his trial lawyer would not discuss his defenses with him, instructing him not to tell him anything, because “whatever you tell me, I’m stuck with.”

Goss testified that, during jury selection, he gave his trial lawyer the names of four witnesses – including alibi witnesses – who were present in the courtroom and prepared to testify, but his lawyer did not speak to or call any of them as witnesses.

Although witnesses were present at the PCR hearing, the PCR judge would not let them testify – instead, she “took judicial notice” of what their testimony would be and then found that their testimony was not credible. The PCR attorney did not object or insist that the witnesses testify.

Ordinarily, if a PCR judge intends to deny post-conviction relief, there will be a statement in the Order that says, “I found the witnesses not credible.” Because the lower court judge is in the best position to judge credibility, the appellate courts usually will defer to the lower court judge’s findings as to credibility.

Goss’ case was reversed because, although the PCR judge found that the witness’s testimony was “not credible,” she never heard their testimony.

The Supreme Court reversed and remanded for a new hearing where the witnesses will take the stand and testify. Of course, if the same judge hears the case again, is it likely she will find the witness’s testimony credible this time?

Defense Counsel Testified that His Client Never Told Him About the Witnesses

The PCR judge also based her decision on the trial attorney’s testimony that his client never told him about the witnesses – if the information was not available to the attorney, that is not ineffective assistance of counsel…

The court will usually assume that trial counsel is testifying truthfully and not selling their client down the river to protect their own reputation, finding the attorney’s testimony credible and the petitioner’s testimony not credible.

Who Decides Which Witnesses to Call?

Another thing to consider is that the client does not decide which witnesses to call at trial. Although the client should give input and provide all available information to the attorney, when it comes time to decide which witnesses to call and how to present the case, the attorney has the final say and not the client.

If there were witnesses that the client wanted to call, but the defense attorney did not use them for a valid reason, that is not grounds for PCR…

Making the Record

In every PCR hearing, it is critical that the PCR attorney make a complete record including the testimony of all witnesses who should have been called at trial.

Even in the most obvious cases of ineffective assistance of counsel, PCR courts will often look for any way to deny PCR – when this happens, it is on the SC Supreme Court to fix the mistake, reverse, and grant PCR.

The only way that the appellate courts can reverse and grant PCR, however, is if a complete record has been made in the court below

Criminal Defense and PCR Lawyer in Charleston, SC

If you’ve been charged with a crime in the Charleston, SC area, call us before your trial. SC criminal defense lawyer Grant B. Smaldone focuses his law practice on criminal defense cases including criminal trials in the Charleston area.

If you have been convicted, however, and you believe you may have grounds for PCR or a criminal appeal, call now at (843) 808-2100 or send an online message to talk to an Charleston, SC criminal defense and PCR attorney today.


Leave a Reply

Your email address will not be published. Required fields are marked *

%d bloggers like this: