Bad Lawyer Advice to a Defendant In a Criminal Case In Hawaii
The supreme court has stated that "the decision whether to call a witness in a criminal trial is normally within the judgment of counsel." State v. Reed, 77 Haw. 72, 84, 881 P.2d 1218, 1230 (1994).
Therefore, an attorney's recommendation as to whether a defendant should testify or not will rarely qualify as an error reflecting a "lack of judgment", Jones, 79 Haw. at 334, 902 P.2d at 969, or "be second-guessed by judicial hindsight." Reed, 77 Haw. at 84, 881 P.2d at 1230.
However, if defense counsel provides erroneous legal advice to a defendant, e.g., misinforming the defendant as to the types of evidence that can be used to attack his or her credibility on cross-examination, this could qualify as a "lack of skill," amounting to ineffective assistance of counsel. Jones, 79 Haw. at 334-35, 902 P.2d at 969-70.
Also, if defense counsel fails to perform sufficient preparation and investigation to be able to adequately advise a defendant whether or not to testify, e.g., by failing to ascertain the full scope of a defendant's possible testimony, this could constitute a "lack of diligence," amounting to ineffective assistance of counsel. Id. at 335, 902 P.2d at 970.
Additionally, in a case which rests upon the credibility of the defendant and the victim, a counsel's failure to call witnesses who could have bolstered the defendant's credibility and thus directly affected the outcome of the case may amount to ineffective assistance of counsel. Briones v. State, 74 Haw. 442, 465, 848 P.2d 966, 977.
The supreme court has instructed that where "the record is unclear or void as to the basis for counsel's actions, counsel shall be given the opportunity to explain his or her actions in an appropriate proceeding before the trial court judge." Briones, 74 Haw. at 463, 848 P.2d at 977.