Can a claim of ineffective counsel be established by assuming that there are a number of potentially available witnesses who could be able to provide mitigating testimony?

California, United States of America


The following excerpt is from People v. Medina, 11 Cal.4th 694, 47 Cal.Rptr.2d 165, 906 P.2d 2 (Cal. 1995):

On direct appeal, a claim of ineffective counsel cannot be established by mere speculation regarding the "likely" testimony of potentially available witnesses. (See, e.g., People v. Jackson (1980) 28 Cal.3d 264, 288-289, 293, 168 Cal.Rptr. 603, 618 P.2d 149.) We cannot assume from a silent record that particular witnesses were ready, willing and able to give mitigating testimony, nor can we speculate concerning the probable content or substance of such testimony.

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