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Counsel Not Ineffective For Not Using an Expert Witness

Ineffective assistance of counsel in the original trial or appeal is an often asserted claim when people convicted of crimes are attempting to gain retrials through the statutory post-conviction process. Because effective assistance of counsel in a criminal trial and direct appeal is a constitutional right, having ineffective counsel during those proceedings is a constitutional violation which can result in a new trial. In the recent Tennessee case of Hawkins v. State, M2012-02293-CCA-R3-PC (Tenn.Crim.App. 11-26-2013), the Court of Criminal Appeals affirmed a post-conviction court ruling rejecting the claim that counsel in an aggravated child abuse case was ineffective for not obtaining and using a medical expert to rebut the state's evidence that the victim suffered 'shaken baby syndrome.'

In the Hawkins case, the child victim suffered severe neurological injuries after an incident where she was allegedly violently shaken by the defendant. The defense was aware that the state intended to present at trial the testimony of multiple doctors who had examined the victim and her injuries and concluded the victim's injuries were the result of non-accidental shaking. Defense counsel's law firm had undertaken efforts to find a medical expert who could rebut the conclusions of the state's experts. Though making a number of inquiries, and an unsuccessful attempt to obtain funding from the state to hire an expert, the defense team ultimately did not hire a medical expert or present any medical expert testimony at trial.

At the post-conviction hearing, post-conviction counsel presented the testimony of a doctor who could have been hired by the original defense firm and who disagreed with the medical theory relied upon by the state at trial. Though finding that the witness may have been helpful to the defense at trial, the post-conviction court concluded the witness (who never examined the victim) would not likely have changed the outcome of the trial. In addition, original defense counsel diligently researched shaken baby syndrome and thoroughly cross examined the state's expert witnesses at trial regarding alternative medical explanations for the injuries.

Because the post-conviction court concluded the witness would not likely have changed the outcome, there was no showing of prejudice, and therefore no showing of ineffective assistance of counsel from not using the witness in the original trial. The Court of Criminal Appeals affirmed this conclusion.

For more information regarding the use of expert witnesses in criminal trials, contact Hindman & Associates.

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Hindman & Lanzon
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