(dissenting in part and concurring in part).
[¶ 40.] 1. DEFECTIVE PERFORMANCE
[¶ 41.] I dissent.23 Defense counsel’s decision not to investigate the theory that Lien was not the driver, under these circumstances, constitutes ineffective assistance of counsel and we should reverse. See Foster v. Lockhart, 9 F.3d 722, 726 (8thCir.1993):
*614Reasonable performance of counsel includes an adequate investigation of facts, consideration of viable theories, and development of evidence to support those theories. An attorney must make a reasonable investigation in preparing a case or make a reasonable decision not to conduct a particular investigation.
(Citation omitted). Here, counsel did not conduct “an adequate investigation of facts” upon which he could base a “reasonable decision” whether to defend at trial or plea bargain.
[¶ 42.] Counsel gave a number of excuses for not pursuing the “other driver” theory. First, he stated his concern that producing an accident reconstruetionist would merely pit one expert against another. Counsel never even consulted an accident reconstruction expert, nor did he have any idea what the State’s expert might conclude, so it would be impossible for his “decision” to be an informed judgment.24
Before an attorney can make a reasonable strategic choice against pursuing a certain line of investigation, the attorney must obtain the facts needed to make that decision. An attorney’s “strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation.”
Id. (quoting Kenley v. Armontrout, 937 F.2d 1298, 1304 (8thCir.), cert. denied, 502 U.S. 964, 112 S.Ct. 431, 116 L.Ed.2d 450 (1991); Strickland v. Washington, 466 U.S. 668, 690-91, 104 S.Ct. 2052, 2066, 80 L.Ed.2d 674, 695 (1984)). Neither the State nor the majority opinion offer any authority which states that a decision not to pursue a theory is reasonable when counsel has not even investigated its viability. Cf. Foster, 9 F.3d at 726:
Although we generally give great deference to an attorney’s informed strategic choices, we closely scrutinize an attorney’s preparatory activities.
(Emphasis added) (citing Chambers v. Armontrout, 907 F.2d 825, 831, 835 (8thCir.) (en banc), cert. denied, 498 U.S. 950, 111 S.Ct. 369, 112 L.Ed.2d 331 (1990)).
[¶ 43.] Holgerson also claims he was concerned with “real dangers in trying a technical case in front of a Codington County jury[.]” As noted, Holgerson did not know to what an expert might testify, so his fear the testimony would be too “technical” is unfounded. Furthermore, a review of the testimony provided by both Lien’s and State’s experts for the habeas proceeding demonstrates that testimony is relatively clear and not confusing or highly technical. In fact, the defense expert, Myron Lofgren testified:
In my opinion, I wish all of [the] cases that I worked where determining a driver was a question, that it was this straightforward. And it’s straightforward simply because it’s a forward collision with only a 90-degree rotation and half a rollover.
Even if we were to agree that the testimony might be confusing to a jury, Holgerson did not have any facts, let alone adequate facts, to conclude that an expert’s opinion would be too “technical” for a Codington County jury.
[¶44.] There is nothing in the record to explain why Holgerson never consulted an accident reconstruction expert. In fact, at *615the arraignment, Holgerson actually requested an extra trial day for accident reconstruction testimony. Since Lien did not instruct Holgerson to abandon that strategy, and since an expert was not consulted, Holger-son’s attempts at rationalization at the habe-as hearing are questionable.
[¶45.] The majority -opinion attempts to place the blame on Lien for failing to “provide Holgerson with any information casting doubt upon the identity of the driver of his Blazer which would require him to conduct a more stringent investigation.” ¶ 18.25 In fact, Holgerson concedes that Lien’s father informed Holgerson that Dailey admitted that he could not remember who was driving.
[¶ 46.] Additionally, even though Lien does not remember the accident, there were numerous pieces of evidence which should have prompted Holgerson to investigate whether Lien was driving:
1) There is a photograph showing the deceased with his arm extended from the driver’s seat of the Blazer;
2) Lien was extricated from the rear driver’s side;
3) Lien told hospital admissions personnel that he was an unrestrained passenger in the vehicle; and
4) as stated above, the information relayed by Lien’s father.
Holgerson did not need Lien to provide information which cast doubt as to driver identity when all the information was available and accessible from other sources and witnesses never interviewed by Holgerson. See Benson v. United States, 552 F.2d 223, 225 (8thCir.), cert. denied, 434 U.S. 851, 98 S.Ct. 164, 54 L.Ed.2d 120 (1977) (“Ordinarily, a reasonably competent attorney conducts an in-depth investigation of the case, including independent interviewing of witnesses[.]”).
[¶ 47.] Holgerson also testified that Adam Dailey’s testimony that Lien was driving appeared “unimpeachable.” Counsel never even interviewed Dailey. Dailey’s taped statement and his grand jury testimony reveal inconsistencies in his account of the accident. Furthermore, defense counsel testified that Lien’s father reported a conversation in which Dailey told him that Lien was not driving. A prior inconsistent statement is a basic impeachment tool. See SDCL 19-14-25 (FedREvid 613(b)); State v. Brings Plenty, 459 N.W.2d 390, 402-03 (S.D.1990); State v. Thomas, 381 N.W.2d 232, 238-39 (S.D.1986); see also Driscoll v. Delo, 71 F.3d 701, 710 (8thCir.1995), cert. denied, — U.S. —, 117 S.Ct. 273, 136 L.Ed.2d 196.(1996):
[W]e conclude that there is no objectively reasonablé basis on which competent defense counsel could justify a decision not to [use prior inconsistent statements to] impeach a state’s eyewitness whose testimony, as the district court points out, took on such remarkable detail and clarity over time.
As the majority opinion suggests, Dailey had no apparent motive to lie. However, he may not have been able to remember who was driving, and his use of marijuana and alcohol that night could have been used to impeach him by easting doubt on his ability to recall the áccident.
[¶ 48.] Based on the above, Lien has met the first requirement of Strickland, i.e., that “counsel’s representation fell below an objective standard of reasonableness.” 466 U.S. at 688, 104 S.Ct. at 2064, 80 L.Ed.2d at 693. The cases relied upon in the majority opinion do not detract from this conclusion. For *616example, in Fast Horse v. Leapley, 521 N.W.2d 102 (S.D.1994), the petitioner complained counsel was ineffective for not calling several witnesses. As it turned out, most of their testimony was actually not helpful to his defense. Additionally, his attorney explained his trial strategy, which was logical and accounted for his not calling certain witnesses. Id. at 104-05. This case is clearly distinguishable. Failure to even consult with an accident reconstruction expert under these circumstances cannot, by any stretch of the imagination, be accurately referred to as “strategy” or “tactics.”
[¶49.] As for St. Cloud v. Leapley, this court determined defense counsel’s failure to investigate constituted ineffective assistance:
[T]he right of an accused to the services of an attorney envisages that his attorney will investigate and consider possible defenses. Failure on the part of counsel to conduct the necessary investigation into the facts may result in such prejudice as to justify the granting of relief. Our review of this record causes us to agree that St. Cloud’s defense counsel should have made an investigation into whether or not a warrant (or similar document) existed. As pointed out by St. Cloud, his defense counsel did travel to Lower Brule to interview potential witnesses; it would have taken little additional effort to examine the tribal court file. The failure to make this investigation was not the result of reasonable professional judgment, thus satisfying the first prong of Strickland.
521 N.W.2d 118, 127-28 (S.D.1994) (concluding that St. Cloud failed to establish prejudice under the second prong) (citations, internal quotations & footnotes omitted). Likewise, it would have taken little additional effort26 here to investigate the “other driver” theory and the failure to do so was not the result of reasonable professional judgment, thus satisfying the first prong of Strickland.
[¶ 50.] 2. PREJUDICE
[¶ 51.] Whether these deficiencies in counsel’s representation prejudiced Lien depends upon whether
counsel’s constitutionally ineffective performance affected the outcome of the plea process. In other words ... the defendant must show that there is a reasonable probability that, but for counsel’s errors, he would not have pleaded guilty and would have insisted on going to trial.... [W]here the alleged error of counsel is a failure to investigate or discover potentially exculpatory evidence, the determination whether the error “prejudiced” the defendant by causing him to plead guilty rather than go to trial will depend on the likelihood that discovery of the evidence would have led counsel to change his recommendation as to the plea. This assessment, in turn, will depend in large part on a prediction whether the evidence likely would have changed the outcome of a trial.
Hill v. Lockhart, 474 U.S. 52, 59, 106 S.Ct. 366, 370, 88 L.Ed.2d 203, 210 (1985).
[¶ 52.] Here, Lien met his burden to show that if he had been armed with the information that counsel failed to gather or share with him, Lien would have insisted on going to trial.27 The majority opinion excuses counsel’s failure to consult an expert because of “Lien’s instructions to attempt to get á suspended imposition.” ¶ 24. But see State v. Pieschke, 262 N.W.2d 40, 46 (S.D.1978):
The right of an accused to the services of legal counsel envisages that his attorney will investigate and consider possible defenses and, if none, other procedures, and exercise his good faith judgment thereon.
*617It does not contemplate that an accused may take charge of the case after an attorney has been appointed, or dictate its course ....
(Emphasis added) (citation omitted). Furthermore, the majority opinion’s assertion— “We do not require defense counsel to retain experts to complete a full investigation before recommending a plea to his client” — is made without supporting authority. See Eldridge v. Atkins, 665 F.2d 228, 232 (8thCir.1981), cert. denied, 456 U.S. 910, 102 S.Ct. 1760, 72 L.Ed.2d 168 (1982):
It is the duty of the lawyer to conduct a prompt investigation of the circumstances of the case and explore all avenues leading to facts relevant to guilt and degree of guilt or penalty. The investigation should always include efforts to secure information in the possession of the prosecution and law enforcement authorities. The duty to investigate exists regardless of the accused’s admissions or statements to the lawyer of facts constituting guilt or his stated desire to plead guilty.
(Emphasis added) (citations omitted).
[¶ 53.] Lien is not required to show that he would have been acquitted, but must only undermine confidence in the trial’s likely outcome. Hill, 474 U.S. at 59, 106 S.Ct. at 370, 88 L.Ed.2d at 210; Foster, 9 F.3d at 726. He met this burden. Lofgren testified unequivocally, “There’s nothing that supports Mr. Lien as being the driver.” State’s expert, on the other hand, conceded, “I guess I could argue both ways as to both drivers.... [T]he physical evidence in this situation is such that you could make an argument both ways and taking what evidence would correspond to that driver being behind the wheel.... I don’t feel that there’s enough physical evidence that can place either one behind the wheel with any degree of certainty.” This refutes the majority opinion’s assertion that the expert testimony corroborated Dailey’s version of events. Supra n. 13. Significantly, Lofgren based his opinion on his view of the site, the vehicle, and the photographs. State’s expert never examined the vehicle and did not visit the accident site until the day of his testimony — facts which, if elicited on cross-examination, could only bolster Lofgren’s opinion that Lien was not the driver:
The value of an expert’s opinion is no better than the facts upon which it is based. Such testimony proves nothing if its factual basis is not true and may prove little if only partially true.
LDL Cattle Co., Inc. v. Guetter, 1996 SD 22, ¶ 22, 544 N.W.2d 523, 528 (citations & internal quotations omitted).
[¶ 54.] The majority opinion fails to explain away the reality that strong defense expert testimony, coupled with effective tools with which to impeach Daily and State’s expert creates a reasonable probability that the jury would have had reasonable doubt as to whether Lien was the driver that night. That is enough to undermine confidence in the trial’s likely outcome. Therefore, Lien has established prejudice under the second prong of Strickland, 466 U.S. at 695, 104 S.Ct. at 2068-69, 80 L.Ed.2d at 698 (defendant is prejudiced by counsel’s unprofessional conduct when “there is a reasonable probability that, absent the errors, the factfinder would have had a reasonable doubt respecting guilt.”); see also Driscoll, 71 F.3d at 706:
Absent competent counsel, ready and able to subject the prosecution’s ease to the crucible of meaningful adversarial testing, there can be no guarantee that the adversarial system will function properly to produce just and reliable results.
(Quoting Lockhart v. Fretwell, 506 U.S. 364, 377, 113 S.Ct. 838, 847, 122 L.Ed.2d 180, 194 (1993) (Stevens, J., dissenting) (other citation & internal quotation omitted)).
[¶ 55.] In light of all the above, it is clear that Lien has established ineffective assistance of counsel under Strickland and we should reverse and remand for a plea or a trial.
[¶ 56.] AMUNDSON, J., joins this special writing.
. I agree with the majority opinion that the failure of the police to officially report the location of West’s body does not give rise to a Brady violation; however, I do not join in the speculation of the possible reasons why this information was omitted. See supra ¶ 36.
. It is incredible that the habeas court excuses counsel’s failure to consult an' expert by stating:
One must also remember, that at the time, attorney Holgerson did not know what an accident reconstruction would disclose. It very well may have provided collaboration [sic] for Dailey.
See Thomas v. Lockhart, 738 F.2d 304, 309 (8thCir.1984) ("[J]ust as hindsight cannot be used to condemn counsel’s performance, it cannot be used to justify it.”).
The majority opinion also claims at ¶ 4:
The record indicates that Holgerson had experience in defending vehicular homicide cases and had successfully defended his most recent client on this kind of criminal proceeding.
In fact, Holgerson had one prior vehicular homicide case; interestingly, in that case he consulted an accident reconstruction expert prior to advising his client to accept a plea bargain. Regardless,
It is important to stress that the issue in ineffectiveness cases is not a lawyer’s culpability, but rather his client’s constitutional rights. Even the best attorney may render ineffective assistance, often for reasons totally extraneous to his or her ability.
St. Cloud v. Leapley, 521 N.W.2d 118, 128 n. 7 (S.D. 1994) (quoting United States v. DeCoster, 487 F.2d 1197, 1202 n. 21 (D.C.Cir.1973)).
. It was actually Holgerson who withheld information from Lien. Dailey’s videotaped statement, Lien’s hospital records, and the photographs of the crash scene were never shown to Lien or his family. Cf. Aliberti v. Solem, 428 N.W.2d 638, 643 (S.D.1988) (Sabers, J., dissenting):
How can it be said that there was a knowing, intelligent, and voluntary waiver of .[right to jury trial] when Aliberti’s counsel only provided him with half the information necessary to make such a waiver? Aliberti was never advised by his attorney on the full picture — the pros and the cons of waiving this constitutional right. His consent was a product of loss of hope, created by counsel.
Aliberti’s trial counsel failed to meet his responsibility to consult in a meaningful manner with Aliberti on this important decision. Strickland, supra. A fair reading of this record reveals that counsel’s representation with respect to the question of jury trial waiver was so ineffective and casual that it evidences a manifest usurpation of Aliberti's constitutional rights.
(Emphasis in original).
. Holgerson testified that cost was not a factor preventing him from consulting an expert.
. At ¶ 25, the majority opinion states:
[I]t appears from the contents of the record that Lien had several discussions with Holger-son concerning the plea. This falls well short of Lien's burden to establish his claim that the plea agreement was not made until the day set for trial and thus at that point, Holgerson should have already retained an expert in expectation of trial. Johnson; Loop; Two Eagle, supra.
These cases cited do not state that the petitioner must show “that the plea agreement was not made until the day set for trial.” In fact, plea . bargains were not even at issue in these cases. See Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); Loop v. Class, 1996 SD 107, 554 N.W.2d 189; Two Eagle v. Leapley, 522 N.W.2d 765 (S.D.1994).