Legal Question in Criminal Law in California

Re: Proceedures,

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Re: Proceedures,

Your posting isn't very clear, but I will try to answer a couple of your specific questions.

It is almost never proper to argue alibi on direct appeal, because an alibi argument is about facts and the appellate court -- which did not have a chance to observe the witnesses or examine the evidence -- will never second-guess the factual findings of a judge or jury provided that there was sufficient evidence to support them. Unless the factual findings are literally impossible, there is no way to persuade an appellate court that the judge or jury erred by rejecting the alibi argument. If the argument itself could not have succeeded on appeal, your appellate counsel will not be deemed ineffective for not making it.

Testimony which was introduced at the prelim but not at trial probably is of no importance now; if it wasn't presented at trial it did not play a part in the decision to convict you. There could conceivably be some way it would be relevant to your habeas petition, but without more facts I can't say whether it would be helpful to you here.

Failing to impeach a witness at a prelim is also unlikely to be deemed ineffective assistance. Raising doubts about a witness's credibility doesn't help much at that stage, because the judge at the prelim pretty much has to presume that all the prosecution evidence is true. Witness credibility only becomes significant at trial.

If you really believe you have an ineffective assistance argument to make, then you can submit supporting evidence at the habeas stage. You must do more than show what questions the lawyer failed to ask; you also need to show what information would have been revealed by the questioning. Additionally, you will need to show that there was no tactical reason for the lawyer's decision not to ask these questions, that no reasonable attorney would have made the same decision *and* that such questioning probably would have led to a more favorable result for you. Proving all of this can be extremely difficult.