Section 3.20 Alibi and State’s Witnesses

LibraryCriminal Practice 2012 Supp

B. (§3.20) Alibi and State’s Witnesses

There are some cases that indicate that the failure to interview the alibi witness can constitute “ineffective assistance of counsel.” See Thomas v. State, 516 S.W.2d 761 (Mo. App. W.D. 1974). Thomas has been cited and approved in Perkins-Bey v. State, 735 S.W.2d 170, 171–72 (Mo. App. E.D. 1987), and State v. Hayes, 785 S.W.2d 661, 664 (Mo. App. W.D. 1990). But there have been several distinctions made to Thomas. In Owens v. State, 610 S.W.2d 706 (Mo. App. E.D. 1981), an attorney spoke with a witness and determined that witness testimony would not amount to a defense. In Pogue v. State, 750 S.W.2d 497 (Mo. App. W.D. 1988), the failure to produce or interview was a matter of trial strategy and not negligence, inactivity, or ineffective assistance of counsel.

The failure to interview state’s witnesses can also amount to “ineffective assistance of counsel.” See Thomas v. Wyrick, 535 F.2d 407 (8th Cir. 1976); McQueen v. Swenson, 498 F.2d 207 (8th Cir. 1974).

See Eldridge v. Atkins, 665 F.2d 228, 235–36 (8th Cir. 1981), which stated:

A competent lawyer’s duty is to utilize every voluntary effort...

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