What is the case law regarding defense counsel's failure to strike a confession after defendant has given his own version of the underlying circumstances?

There is no basis in the record for assuming that defense counsel was incompetent or lacked understanding of the law. His statements show an acute awareness of the voluntariness issue, and the court's duty to rule upon it. It is ordinarily neither helpful nor proper for a reviewing court to draw inferences from the failure of counsel to make all of the motions and objections which were legally permissible, since the reviewing court can never know what the trial attorney knew or reasonably believed as a basis for his tactical decision. ² (See People v. Garrison (1966) 246 Cal.App.2d 343, 350, 54 Cal.Rptr. 731.) In this case there is the additional factor that this was a second trial. Only three weeks before, this case had been tried by the same attorneys before the same judge, where defendant's tactics has been good enough to create a reasonable doubt in the mind of at least one juror. At the second trial defense counsel was, of course, aware of what the witnesses had testified to and how the court had ruled on objections. ³ It is understandable that counsel would avoid pressing issues on which he could anticipate adverse rulings by the trial court, and concentrate on making a favorable impression with the jurors.

On this record, the failure of defendant's attorney to move to strike the confession after defendant had given his own version of the underlying circumstances can only be regarded as a deliberate bypass. The record offirmatively refutes any supposition that defense counsel lacked diligence or knowledge of the law.

[27 Cal.App.3d 633]

Effect of Jackson v. Denno