What is the role of the expert witness in the habeas corpus trial? Find out on this page.
To the extent an expert witness could testify at the habeas trial, habeas counsel must provide notice of the expert. Also, they must do so pursuant to Practice Book §§ 13-4 and 23-38.
In Evans v. Warden, 29 Conn. App. 274, 275 (1992), the Appellate Court held, “that the testimony of a legal expert is [not] required, as a matter of law, in every habeas corpus petition in order to establish ineffective assistance of counsel.” See also Id. at 280-81 (“We are not persuaded that we should adopt an inflexible requirement that expert testimony must be presented in every case raising a Strickland inquiry. In addition, the case-by-case approach is appropriate in a situation involving ineffective assistance of counsel.”). The Appellate Court noted, however, that the habeas judge may not have “[cognizance] of the required standard of ‘reasonable competence’ displayed by lawyers with ordinary training and skill in the criminal law; Strickland v. Washington, supra, 687; at the time the challenged representation [allegedly] occurred.” Id. at 281-82.
Later, in Johnson v. Commissioner, 34 Conn. App. 153, cert. denied, 229 Conn. 919 (1994), the habeas court dismissed the petitioner’s ineffective assistance of counsel claim. They held that without the testimony of a legal expert, the petitioner could not establish that trial counsel was deficient.
Appellate Court Decisions
The Appellate Court affirmed the decision. They stated, “A trial court has broad discretion in determining whether expert testimony is need…In this case, because of the complexity of the issues, the habeas court determined that expert testimony was necessary for a determination of whether the trial counsel’s performance was incompetent, and that, without such expert testimony, no finding as to competency could be made.” (citation omitted) Id. at 158.
Thus, the habeas counsel must present the testimony of a legal expert to establish the “prevailing professional norms,” Strickland, 466 U.S. at 688, at the time in question. The failure to do so—to establish the requisite benchmark—could prove fatal in some cases. Accordingly, a legal expert should get consulted with regard to the habeas claims. Also, if in agreement with their merit, presented as an expert witness at the habeas trial.
The need at the habeas trial for other expert witnesses such as physicians, psychologists, and forensic and social scientists, just to name a few, will get determined by the nature of the habeas claims and what trial counsel achieved or failed to achieve at the original criminal trial. To the extent that there exists necessity for such experts, they should get consulted and retained without delay. This will ensure that they have ample time to complete the work, that they have to testify, and that any and all reciprocal discovery provisions or orders have gotten complied with in a timely manner.