Convincing prosecution witnesses to talk, through a third approach

Jul 14, 2014 Convincing prosecution witnesses to talk, through a third approach

Criminal complainants can be valuable sources of information to a criminal defense lawyer both for preparing the defense and for seeking to settle the case. Watch out, though, for the risks that criminal complainants will clam up, whether out of fear or uncertainty, out of a wish to please prosecutors’ offices’ so-called witness coordinators, and even out of their response to hearing a prosecutor or police officer say between the lines (and I even have heard a cop say so directly, until he reversed gears after I called him on it) that they hope the witness will not speak with the criminal defense lawyer.

For an initially recalcitrant criminal complainant to loosen up on that recalcitrance, the criminal defense lawyers can try such approaches as:

– Presenting complete sincerity (which always is essential);

– Underlining that the lawyer’s client and the client’s allegedly criminal actions are not synonymous with the lawyer;

– Seeing if an opportunity to tell something about the witness’s life story will ease up his recalcitrance. For instance, one way possibly to ease a calm witness’s recalcitrance might be for the criminal defense lawyer to say to the complainant: "I am riveted by your calm demeanor." See whether that draws out the person’s story (e.g., "My grandmother was as calm as gently flowing waters. That always stayed wtih me").

Another approach is to inform the complainant of a possible third way to resolving the case, not an approach that looks for a winner on one side or another, but an approach that looks to give the parties satisfaction through mediation or another restorative justice method. If a mediation system already is in place for the courthouse where the case is being prosecuted, that is good. If not, private mediation can be explored until the particular court jurisdiction institutes mediation for criminal cases.

With mediation, I am not talking about having the defendant relinquish his or her power to the mediator, nor about relinquishing his or her Fifth Amendment right to remain silent, to his or her own detriment. I am talking about an opportunity to try to get closer to yes.

Ex inmate Fleet Maull talks about going beyond the restorative justice approach to a transformative justice approach. "Transformative Justice wants to look deeper into the behavior and ask ‘How did it arise?’ Transformative Justice asks the questions: ‘Whats happening in their background?’ or ‘What kind of pain and suffering are they acting out of?’"

Of course, I want my client’s interests not to be compromised in a restorative justice approach nor any other approach to their case. However, often times my client’s interests overlap with numerous interests of the complainant, including to have an opportunity to reach closure in the case, rather than merely having the prosecutor proceed full guns ahead in seeking the most punitive result.

Such a restorative justice advocate as Sujatha Baliga (see here, too) may be paricularly valuable to the criminal defense for advice, because she has prior criminal defense experience herself.

When a criminal complainant and prosecutor see the criminal defense lawyer as someone who can and will facilitate mediation or a restorative justice approach, the criminal defendant may well be closer to a more favorable case resolution for the defendant.

Judges as both fallible and potentially excellent
Charlie Haden passes on July 11
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