What Can I Do if My Attorney Failed to Call a Key Witness?

 Posted on October 18, 2026 in Criminal Defense

If your attorney failed to call a witness who could have helped your defense in 2026, you may have grounds to challenge your conviction. This is called an ineffective assistance of counsel claim. You must show that your lawyer made a serious mistake and that there is a reasonable chance the outcome would have been different without it. An Ashburn, VA criminal defense lawyer can review what the witness knew and why your attorney did not call them.

What Is Ineffective Assistance of Counsel in Virginia?

The Sixth Amendment gives you the right to effective legal help in a criminal case. To prove your lawyer failed to provide it, you must meet two requirements.

First, you must show that your lawyer's work fell below what a reasonably skilled attorney would have done. Courts give lawyers room to make choices during trial. Losing your case does not mean your lawyer did something wrong.

Second, you must show that the mistake harmed your defense. This means there is a reasonable chance the outcome would have been different without it. You do not have to prove that a different result was certain.

You must prove both parts. A mistake alone is not enough if it had no real effect on your case.

When Is Failing to Call a Witness Considered Ineffective Assistance of Counsel?

Attorneys decide which witnesses to call at trial. Sometimes leaving someone out is a reasonable choice.

For example, your attorney might know that the witness gave different versions of events. The witness could also have a criminal record or know facts that could hurt your defense. In that situation, leaving them out can make sense.

But failing to look into an important witness can be different. If you told your attorney about someone who could support your alibi, they should consider whether to investigate. An alibi is proof that you were somewhere else when the crime happened.

The question is whether your attorney made a reasonable decision with the information available.

What Evidence Do You Need if Your Attorney Failed to Call a Witness?

In this case, you need facts showing what that person could have told the court. Important questions include:

• Was the witness available when your case went to trial?

• Would the witness have agreed to testify?

• What would the witness have said?

• Would that testimony have helped challenge the evidence against you?

• Did your attorney know about the witness?

A written, sworn statement from the witness can help. It should explain what the person saw or heard.

Other evidence can also support your claim. Save emails, letters, or messages showing that you told your lawyer about the witness. These can help show whether your lawyer had a chance to investigate.

How Do You File an Ineffective Assistance Claim in Virginia?

These claims are usually raised through a habeas corpus petition, not a direct appeal. A habeas petition asks a court to review whether your conviction or sentence violates your legal rights.

Under Virginia Code § 8.01-654, you usually have two years after the trial court’s final judgment to file. Another deadline is one year after your direct appeal in state court ends or your time to appeal expires. Whichever deadline comes later applies. Missing this deadline can prevent the court from hearing your claim.

You can file in the proper circuit court or the Supreme Court of Virginia. The court may decide the case from written records or hold a hearing. If you claim your attorney was ineffective, the court may review relevant private conversations between you and that attorney.

Virginia also limits repeat habeas petitions. Include all claims based on facts you already know when you first file.

What Should You Do if Your Virginia Attorney Failed to Call a Witness?

Contact a different criminal defense attorney as soon as possible. A fresh review can help you learn whether you have a claim and how long you have to file.

Ask your former lawyer for your case records. You have a right to receive many of these documents, but not every internal note.

Try to locate the missing witness. Find out what they remember and whether they can give a sworn statement. Write down when you told your attorney about the witness and what your attorney said.

Contact Our Tysons, VA Criminal Defense Attorney Today

At Salvado Law Offices, we are fully prepared and committed to take on your case with diligence and attentiveness. Our team can review your case and help you understand your options after a conviction. Contact Salvado Law Offices at 703-379-9446 to talk to our Ashburn, VA criminal defense lawyers today.

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