Failure to Object, Cross Examine, or Impeach in Connecticut Habeas Corpus

What happens in a Connecticut habeas corpus case when there is failure to object? How about in situations of failure to adequately cross examine and impeach? You can find out about these failures on this page.

Defense counsel is obligated to object at trial to inadmissible evidence or an improper examination, unless there is a strategic reason not to object. See Practice Book §§ 5-2, 5- 5, 5-6, 41- 1 to 41-7, 41-12, et seq., 42-15, 60-5; see also General Statutes § 52- 208; see generally Colin C. Tait & Hon. Eliot D. Prescott, Tait’s Handbook Of Connecticut Evidence, § 1.30, et seq. (5th Ed. 2014). The failure to object may constitute ineffective assistance of counsel. See generally J. Hall, Jr., Professional responsibility Of The Criminal Lawyer (1987), § 4.23 (“Counsel’s failure to object to evidence that is clearly inadmissible and prejudicial can be ineffective assistance”); but see Levine v. Manson, 195 Conn. 636, 648 (1985)(“[t]he decision of a trial lawyer not to make an objection is a matter of trial tactics, not evidence of incompetency” (internal quotation marks omitted; citation omitted)).

Objection to Evidence

An objection to anticipated improper and prejudicial evidence can also happen before trial by filing a motion in limine under Practice Book § 42-15. “A motion in limine in a broad sense [refers] to any motion, whether made before or during trial, to exclude anticipated prejudicial evidence before the evidence is actually offered.” State v. Smith, 212 Conn. 593, 611 (1989) (quoting State v. Harrell, 199 Conn. 255, 259 n. 4 (1986)(quoting in turn Luce v. United States, 469 U.S. 38, 40 n. 2 (1984))); see, e.g., State v. Smith, 212 Conn. at 611 (“defendant should have followed the common practice of filing a motion in limine to prevent any witness from referring to his prior trial”).

Each occasion where counsel fails to object at trial or move in limine should be pled as a claim, or subpart of a claim, of deficient performance under Strickland. Further, the cumulative failures should be pled as a claim of deficient performance under Strickland, notwithstanding the fact that they may not be of constitutional magnitude. See Bourjaily v. United States, 483 U.S. 171, 179- 80 (1987)(“[I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts”).

Failure to Adequately Cross Examine and Impeach

Trial counsel’s failure to adequately cross-examine or impeach a witness may constitute ineffective assistance of counsel. See J. Hall, Jr., Professional responsibility Of The Criminal Lawyer (1987), § 4.24 (“… if defense counsel possesses substantial impeachment evidence but fails to introduce it either through cross-examination or otherwise, or because he was not paying attention, ineffectiveness is shown if it is reasonably possible that the witness’ testimony affected the conviction”).

The failure, however, will have to be so serious that it overcomes the presumption that the examination was a product of sound trial strategy. See Antonio A. v. Commissioner, 148 Conn. App. 825, 832 (“An attorney’s line of questioning on examination of a witness clearly is tactical in nature. [As such, this] court will, not in hindsight, second-guess counsel’s trial strategy.” (Internal quotation marks omitted; citation omitted)), cert. denied, 312 Conn. 901 (2014). Strickland prejudice must also get established.

Also, each instance of failing to adequately cross-examine or impeach at trial should be pled as a claim, or subpart of a claim, of ineffective assistance of counsel. Further, the cumulative failures should be pled as a claim of ineffective assistance of counsel, notwithstanding the fact that they may not be of constitutional magnitude. See Bourjaily v. United States, 483 U.S. 171, 179-80 (1987)(“ [I]ndividual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it. The sum of an evidentiary presentation may well be greater than its constituent parts”).