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Is Not Calling a Specific Expert Witness Considered Ineffective Assistance?

Our Constitution protects citizens’ fundamental rights. The Sixth Amendment ensures that all citizens are guaranteed fair and impartial trials, a jury of their peers, a speedy trial without undue delay, and effective assistance from counsel, to name a few. The right to effective assistance is a crucial right, but one that has been subject to significant debate; what is effective assistance? At what point is assistance provided by counsel to the criminal defendant no longer effective? Does losing the criminal defendant’s case mean that the attorney was ineffective? These are some of the questions that have made it difficult to pinpoint exactly what constitutes effective assistance. Case law, however, has helped to create thresholds by which it can help ascertain whether or not an attorney has provided effective assistance to his/her client.

Florida Rule of Criminal Procedure 3.850: Ineffective Assistance

In Florida, in a criminal defendant’s postconviction appeal, he or she may bring up, under Florida Rule of Criminal Procedure 3.850, the determination that his or her attorney provided ineffective assistance and but for that ineffective assistance, the outcome of the conviction would have been different. Determining that ineffective assistance had been given requires the court to evaluate whether the attorney’s performance was deficient in someway, and that the errors he/she made led to an outcome that would have otherwise been different. The test rests on “reasonable probability” which refers to estimating the extent to which the attorney’s errors would have led to a different result. Even if an attorney did make errors, if the errors were not deficient enough to lead to a different result, then the court will deny the postconviction appeal, and uphold the conviction.

State of Florida v. Lucas

In a recent Florida Supreme Court case, State of Florida v. Lucas, effective assistance was the central issue of the case. More specifically, the postconviction appeal cited that because the attorney did not call an expert witness in the criminal defendant’s case, that was ineffective assistance. In Lucas, Lucas was convicted of burglary of a dwelling with aggravated battery. Lucas, because he was felony re-offender who had already spent time in prison, was sentenced to life in prison as a result of aggravated battery. One of the elements of aggravated battery is that the victim must have suffered permanent damage. According to the proceeding documents, the victim of the aggravated battery was assumed to have suffered permanent eye damage. However, the criminal defendant’s attorney did not call an expert witness, an ophthalmologist, who could have ascertained whether or not the eye damage was in fact permanent.

The Point at Which Not Calling an Expert Witness is Considered Ineffective Assistance

The District Court of Appeal ruled in favor of Lucas, stating that there was no authority that would require the defendant to identify a particular ophthalmologist to serve as an expert witness to show that his counsel had been ineffective. The ineffectiveness of the counsel occurred when he/she did not call any expert witness (read: any ophthalmologist) rather than a specific ophthalmologist (the state argued that it was only ineffective assistance where the counsel did not call a specific ophthalmologist).

Holding of the Florida Supreme Court on Ineffective Assistance and Expert Witnesses

The Florida Supreme Court agreed with the District Court of Appeal and vacated Lucas’s aggravated battery conviction and thus his life sentence. The final holding determines that in future cases, the criminal defendant in his postconviction appeal for ineffective assistance only needs to prove that an expert witness was not consulted or presented at trial; the criminal defendant does not need to prove that a specific expert witness was not called nor that the specific expert was or was not available to testify at trial.

Experienced Criminal Defense Attorney in Fort Lauderdale

Expert witnesses are important especially in criminal cases that require scientific evidence to help prove the innocence of a criminal defendant. An experienced criminal defense attorney like Kevin J. Kulik understands the importance of expert witness testimony and can advocate on your behalf throughout your proceedings. Contact Kevin J. Kulik today for a free and confidential consultation in the Fort Lauderdale area.

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