As the Supreme Court held in Strickland v. Washington,[79] counsel must, at a minimum, conduct a reasonable investigation enabling him or her to make informed decisions about how best to represent his or her client.[80] “There is nothing strategic or tactical about ignorance . . . .”[81] 

 

As the court stated in Sanders v. Ratelle:[82]

 

[T]he failure to conduct a reasonable investigation constitutes deficient performance.  The Third Circuit has held that “[i]neffectiveness is generally clear in the context of complete failure to investigate because counsel can hardly be said to have made a strategic choice when s/he [sic] has not yet obtained the facts on which such a decision could be made.”  See U.S. v. Gray, 878 F.2d 702, 711 (3d Cir. 1989).  A lawyer has a duty to “investigate what information . . . potential eye-witnesses possess[], even if he later decide[s] not to put them on the stand.”  Id. at 712.  See also Hoots v. Allsbrook, 785 F.2d 1214, 1220 (4th Cir. 1986) (“Neglect even to interview available witnesses to a crime simply cannot be ascribed to trial strategy and tactics.”; Birt v. Montgomery, 709 F.2d 690, 710 (7th Cir. 1983), cert. denied, 469 U.S. 874 (1984) (“Essential to effective representation . . . is the independent duty to investigate and prepare.”)

 

            Thus, the conviction is invalid where counsel fails to investigate the case in a competent manner, to the defendant’s prejudice.  Counsel cannot be said to have made an informed tactical decision without conducting an adequate investigation.[83] 

 

            The failure to obtain the advice and assistance of an expert witness can amount to ineffective assistance of counsel under state and federal constitutions,[84] as can the failure to investigate and contact witnesses.[85]  Similarly, a plea is invalid if counsel fails to conduct the adequate factual investigation necessary to offer the defendant an informed recommendation concerning the plea.[86]  Counsel must investigate and present at sentencing available mitigating evidence, including expert medical evidence and evidence of social history.[87]   

 

For example, the failure to investigate and introduce evidence that would have raised a reasonable doubt about petitioner's guilt was found to constitute ineffective assistance, where trial counsel had a strong suspicion that petitioner's brother was the shooter, but conducted no investigation into that theory of defense, and the brother thereafter confessed.[88]  Counsel's failure to discover vast amounts of evidence regarding the mental health and drug abuse of the defendant amounted to prejudicial ineffective assistance requiring new trial.[89]  Counsel’s failure to examine the file on defendant’s prior conviction for rape and assault at the sentencing phase of a capital murder trial fell below the standard for reasonable performance.[90]

 

            For guidance, the U.S. Supreme Court has turned to the ABA standards which state:

 

It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused's admissions or statements to the lawyer of facts constituting guilt or the accused's stated desire to plead guilty.[91]

 

            The California courts have made the same point:

 

            An informed tactical decision made by defense counsel does not constitute ineffective assistance of counsel. (In re Ibarra (1983) 34 Cal.3d 277, 284 [193 Cal.Rptr. 538, 666 P.2d 980].) As a corollary rule, “ineptitude or lack of industry” on the part of counsel falls well short of the mark.  (In re Saunders (1970) 2 Cal.3d 1033, 1042, fn. 7 [88 Cal.Rptr. 633, 472 P.2d 921].)  “‘[W]hile acknowledging the wide latitude and discretion necessarily vested in trial counsel in the area of tactics and strategy, we stress that the exercise of that discretion must be a reasonable and informed one in the light of the facts and options reasonably apparent to counsel at the time of trial, and founded upon reasonable investigation and preparation.’ [Citation.]”  (In re Hall (1981) 30 Cal.3d 408, 426 [179 Cal.Rptr. 223, 637 P.2d 690].)[92]

[79] Strickland v. Washington, 466 U.S. 668, 691 (1984).

[80] See also Hendricks v. Vasquez, 974 F.3d 1099, 1109 (9th Cir. 1992) [vacating conviction]; United States v. Burrows, 872 F.2d 915, 918 (9th Cir. 1989) [reversing conviction for failure to investigate a mental defense]; Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988) [holding a failure to investigate “cannot be construed as a trial tactic” where counsel did not even bother to view relevant documents that were available].

[81] Pineda v. Craven, 424 F.2d 369, 372 (9th Cir. 1970).

[82] Sanders v. Ratelle, 21 F.3d 1446 (9th Cir. 1994) [reversing conviction for defense counsel’s failure to interview defense witness].

[83] See, e.g., Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir. 1991)(failure to present mitigating evidence at sentencing cannot be strategic, tactical decision where counsel fails to investigate); see also Evans v. Lewis, 855 F.2d 631, 637 (9th Cir. 1988)(failure to investigate cannot be construed as a trial tactic). 

[84] See Baylor v. Estelle, 94 F.3d 1321 (9th Cir. 1996), cert. denied, 117 S.Ct. 1329 (1997)(counsel held ineffective for not following up on criminologist’s report that tended to show semen and saliva samples taken from two rape victims probably did not belong to defendant); United States v. Tracing, 996 F.2d 1414 (2d Cir. 1993)(ineffective counsel found for failure to consult with handwriting expert); Sibs v. Lively, 970 F.2d 1575 (6th Cir. 1992) (ineffective counsel found for failure to hire forensic expert to examine physical evidence).

[85] Lord v. Wood, 184 F.3d 1083 (9th Cir. 1999)(failure to interview witness that would have supported alibi defense); Hart v. Gomez, 174 F.3d 1067 (9th Cir. 1999); In re Hall (1981) 30 Cal.3d 408, 426, 179 Cal.Rptr. 223, 637 P.2d 690 (failure to interview witnesses).

[86] Agan v. Singletary, 12 F.3d 1012 (11th Cir. 1994) (counsel spent only seven hours investigating the case, ignored a potentially fruitful lead that would have created substantial questions concerning the identity of the perpetrator, and failed to investigate defendant’s mental competence to enter the plea); Baxter v. Thomas, 45 F.3d 1501 (11th Cir.), cert. denied, 516 U.S. 946 (1995) (failure to obtain school and hospital records which would have lead to evidence of psychiatric problems); Jackson v. Herring, 42 F.3d 1350 (11th Cir. 1995), cert. denied, 515 U.S. 1189; Hill v. Lockhart, 28 F.3d 832 (8th Cir. 1994), cert. denied, 513 U.S. 1102 (1995).

[87] Williams (Terry) v. Taylor, 529 U.S. 360 (2000); Jackson v. Calderon, 211 F.3d 1148 (9th Cir. 2000).

[88] Avila v. Galaza, 297 F.3d 911 (9th Cir. 2002).

[89] Jennings v. Woodford, 290 F.3d 1006 (9th Cir. 2002).

[90] Rompilla v. Beard, 545 U.S. 374 (2005).

[91] Rompilla v. Beard, 545 U.S. 374 (2005) (quoting 1 ABA Standards for Criminal Justice 4-4.1 (2 ed. 1982 Supp)).

[92] Rose v. Superior Court (People) (2000) 81 Cal.App.4th 564, 571.

GROUNDS " INSUFFICIENT EVIDENCE -- FELONY ASSAULT WITH DANGEROUS WEAPON REDUCED TO MISDEMEANOR SIMPLE ASSAULT
In re Brandon T (Cal. App. 2d, Jan. 24, 2011) No. B220588, 2011 WL 198664 (reversing conviction for assault with a deadly weapon, in violation of Penal Code 245(a)(1), where there was insufficient evidence that minor committed the crime because he did not use the butter knife in a manner capable of producing and likely to produce death or great bodily injury; and reducing the conviction to simple assault, a misdemeanor offense).

GROUNDS " INSUFFICIENT EVIDENCE " PROSECUTIONS OVERREACHING
United States v. Goyal, (9th Cir. Dec. 10, 2010) ___ F.3d ___, 2010 WL 5028896 (Hon. Alex Kozinski, concurring) (This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant's personal and professional life. The defendant's former employer also paid a price, footing a multimillion dollar bill for the defense. And, in the end, the government couldn't prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds.), citing Arthur Andersen LLP v. United States, 544 U.S. 696, 705-08 (2005); United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v. Brown, 459 F.3d 509, 523-25 (5th Cir .2006); cf. United States v. Moore, 612 F.3d 698, 703 (D.C.Cir. 2010) (Kavanaugh, J., concurring) (breadth of 18 U.S.C. 1001 creates risk of prosecutorial abuse). Justice Kozinski stated: This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction-including disenfranchisement, incarceration and even deportation-but also because criminal law represents the community's sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) ([C]riminal punishment usually represents the moral condemnation of the community ....); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir.1970) ([T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community....). When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted. Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn't commit. But not everyone is so lucky. The government shouldn't have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction. Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal. And, perhaps, that the government will be more cautious in the future.) (Id. at ___.)

Ninth Circuit

GROUNDS " INSUFFICIENCY OF EVIDENCE " EVIDENCE INSUFFICIENT TO ESTABLISH JURISDICTIONAL AND INTENT ELEMENTS
United States v. Flyer, ___ F.3d ___ (9th Cir. Feb. 8, 2011)(reversing federal conviction of violating 18 U.S.C. 2252 (2004), attempted transportation, shipping, and possession of child pornography, where evidence was insufficient to establish the jurisdictional and intent elements).

GROUNDS " INSUFFICIENCY OF EVIDENCE " EVIDENCE INSUFFICIENT TO ESTABLISH JURISDICTIONAL AND INTENT ELEMENTS
United States v. Flyer, 633 F.3d 911 (9th Cir. Feb. 8, 2011)(reversing federal conviction of violating 18 U.S.C. 2252 (2004), attempted transportation, shipping, and possession of child pornography, where evidence was insufficient to establish the jurisdictional and intent elements).

GROUNDS " INSUFFICIENT EVIDENCE
United States v. Goyal (9th Cir. Dec. 10, 2010) ___ F.3d ___, 2010 WL 5028896 (reversing conviction for concealing allegedly improper accounting from outside auditors and for filing reports with the SEC allegedly misstated revenue, because no jury could have found defendant guilty beyond a reasonable doubt based on the evidence presented at trial, since there was no evidence that the effect of using the accounting methods here was so substantial that it made a material difference in reported revenue and no evidence as required for conviction under 15 U.S.C. 78ff(a), which requires willful and knowing deception, that defendant knew his company's subsidiary violated accepted accounting principles).

GROUNDS " INSUFFICIENT EVIDENCE
United States v. Goyal (9th Cir. Dec. 10, 2010) 629 F.3d 912, 2010 WL 5028896 (reversing conviction for concealing allegedly improper accounting from outside auditors and for filing reports with the SEC allegedly misstated revenue, because no jury could have found defendant guilty beyond a reasonable doubt based on the evidence presented at trial, since there was no evidence that the effect of using the accounting methods here was so substantial that it made a material difference in reported revenue and no evidence as required for conviction under 15 U.S.C. 78ff(a), which requires willful and knowing deception, that defendant knew his company's subsidiary violated accepted accounting principles).

GROUNDS " INSUFFICIENT EVIDENCE " PROSECUTIONS OVERREACHING
United States v. Goyal, (9th Cir. Dec. 10, 2010) 629 F.3d 912, 2010 WL 5028896 (Hon. Alex Kozinski, concurring) (This case has consumed an inordinate amount of taxpayer resources, and has no doubt devastated the defendant's personal and professional life. The defendant's former employer also paid a price, footing a multimillion dollar bill for the defense. And, in the end, the government couldn't prove that the defendant engaged in any criminal conduct. This is just one of a string of recent cases in which courts have found that federal prosecutors overreached by trying to stretch criminal law beyond its proper bounds.), citing Arthur Andersen LLP v. United States, 544 U.S. 696, 705-08 (2005); United States v. Reyes, 577 F.3d 1069, 1078 (9th Cir. 2009); United States v. Brown, 459 F.3d 509, 523-25 (5th Cir .2006); cf. United States v. Moore, 612 F.3d 698, 703 (D.C.Cir. 2010) (Kavanaugh, J., concurring) (breadth of 18 U.S.C. 1001 creates risk of prosecutorial abuse). Justice Kozinski stated: This is not the way criminal law is supposed to work. Civil law often covers conduct that falls in a gray area of arguable legality. But criminal law should clearly separate conduct that is criminal from conduct that is legal. This is not only because of the dire consequences of a conviction-including disenfranchisement, incarceration and even deportation-but also because criminal law represents the community's sense of the type of behavior that merits the moral condemnation of society. See United States v. Bass, 404 U.S. 336, 348 (1971) ([C]riminal punishment usually represents the moral condemnation of the community ....); see also Wade v. United States, 426 F.2d 64, 69 (9th Cir.1970) ([T]he declaration that a person is criminally responsible for his actions is a moral judgment of the community....). When prosecutors have to stretch the law or the evidence to secure a conviction, as they did here, it can hardly be said that such moral judgment is warranted. Mr. Goyal had the benefit of exceptionally fine advocacy on appeal, so he is spared the punishment for a crime he didn't commit. But not everyone is so lucky. The government shouldn't have brought charges unless it had clear evidence of wrongdoing, and the trial judge should have dismissed the case when the prosecution rested and it was clear the evidence could not support a conviction. Although we now vindicate Mr. Goyal, much damage has been done. One can only hope that he and his family will recover from the ordeal. And, perhaps, that the government will be more cautious in the future.) (Id. at ___.)

Other

GROUNDS " INSUFFICIENT EVIDENCE -- FELONY ASSAULT WITH DANGEROUS WEAPON REDUCED TO MISDEMEANOR SIMPLE ASSAULT
In re Brandon T (Cal. App. 2d, Jan. 24, 2011) No. B220588, 2011 WL 198664 (reversing conviction for assault with a deadly weapon, in violation of Penal Code 245(a)(1), where there was insufficient evidence that minor committed the crime because he did not use the butter knife in a manner capable of producing and likely to produce death or great bodily injury; and reducing the conviction to simple assault, a misdemeanor offense).