Criminal Defense of Immigrants


§ 11.57 ix. Incomplete Initial Defense Investigation

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It may be possible to determine from the client whether the original defense counsel conducted a thorough investigation, talked at length with the defendant to find out precisely what happened, visited the scene, interviewed eyewitnesses, etc.


                A failure to do so may be a ground to vacate the plea.  If a more thorough investigation would have turned up evidence of innocence or evidence that would likely have resulted in a plea to a lesser offense, imposition of a smaller sentence, or the granting of a motion to suppress or dismiss, the ineffectiveness of counsel may be ruled prejudicial, and the conviction or sentence may be set aside.


                As the Supreme Court held in Strickland v. Washington,[314] 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.[315]

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

[315] See also Hendricks v. Vasquez, 974 F.2d 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).