Does the failure to bring a Hitch motion constitute ineffective assistance of counsel at trial?

California, United States of America


The following excerpt is from People v. Mayorga, 171 Cal.App.3d 929, 218 Cal.Rptr. 830 (Cal. App. 1985):

Defendant here does not assert that the failure to bring a Hitch motion constituted ineffective assistance of counsel at trial. We assume no such argument was made on appeal because the record discloses that defense counsel was clearly aware of the Hitch issue and chose to exploit the failure to refrigerate the sample before the jury rather than by raising it only before the trial judge on a Hitch motion. (See People v. Frierson (1979) 25 Cal.3d 142, 158, 158 Cal.Rptr. 281, 599 P.2d 587 [reasonable tactical decision not constituting ineffective assistance of counsel].)

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