Section 3.20 Alibi and State’s Witnesses

• Library: Criminal 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 (8^th Cir. 1976); McQueen v. Swenson, 498 F.2d 207 (8^th Cir. 1974).

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

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