Defense Lawyer’s Decision Not to Call a Witness Who Might Offer Exculpatory Evidence Is a Question of Trial Strategy

PIERRE V. ERCOLE, NO. 12-3506-PR (2D CIR. MAR. 27, 2014) (SACK, LIVINGSTON, AND LOHIER) (SUMMARY ORDER), AVAILABLE HERE

This case involved an ineffective assistance of counsel claim following defendant’s murder conviction.  The defendant argued that his defense lawyer was ineffective for not calling a particular witness at trial and for failing to investigate a possible witness.  The Court disagreed with both arguments. 

The decision whether to call a specific witness, even one that might offer exculpatory evidence, is a question of trial strategy and is not viewed as a lapse in professional representation.  The defendant claimed that the uncalled expert witness could have cast doubt on the state’s pathologist, who opined as to the victim’s date of death.  That date, however, did not coincide with the defendant’s claimed alibi that existed two days later.  According to the Court, the decision to not call the witness was strategic.  It avoided potential cross-examination of the uncalled defense witness by the state, which could have “diluted” the points made by the defense lawyer during cross-examination of the state’s pathologist. 

Nothing in the record supported the defendant’s second claim, including any affidavit from the defense lawyer or the possible witness as to what she did or did not witness.  “Bare allegations” were insufficient to meet the defendant’s burden of proving ineffective assistance of counsel.