Prosecutors must not tell witnesses not to talk with defense lawyers
Prosecutors must NOT tell or even hint at cops and other witnesses not to talk with defense lawyers. Specifically, in a criminal matter, a lawyer “shall not” request “a person other than a client to refrain from voluntarily giving relevant information to another party.” Va. Rule Prof. Cond. 3.4(h). As a Fairfax criminal lawyer, I know that prosecutors exist who who will intentionally or unintentionally signal police and other witnesses between the lines to not talk with defense counsel. For starters, some prosecutors’ offices and provide “victims’ assistants” to sit with alleged crime victims while waiting for the case to be called. (And sometimes this function is provided by Virginia police departments.) Why? They are not lawyers able to answer lawyer questions; these “victims’ assistants'” very presence conveys to beware of anyone having to do with the accused, including the accused’s lawyer.
Then we have prosecutors who use certain code words, body language, and tone of voice to convey that it would be better for the witness not to talk with the defense lawyer. When cops advise witnesses not to talk with lawyers the cops are not even bound by lawyers’ ethics rules.
I have experienced cops and prosecutors stand close to me and prosecution witnesses when I speak with them. What message does that send the witness about whether to speak with me? Then we have prosecutorial timing, only telling witnesses once I approach them that it is up to them whether to talk with me; that is NOT a neutral communication by the prosecutor. Some prosecutors say: “This is defendant Jones’s lawyer. You do not have to talk with him. It’s up to you,” or one of the humdinger prosecutors who proclaimed emphatically while walking right up to the complainant: “Mr. Bushmaster, this is Mr. Fivepoint’s lawyer. You DO NOT HAVE TO TALK WTH HIM.” I told the prosecutor that this hardly sounded like a proper communication from the prosecutor.
Hey, prosecutors and cops: why are any of you trying to hush up witnesses and the truth? To hide the truth? I have news for you: You are public servants, and you besmirch yourselves and your offices to seek such hushing. Moreover, each question a criminal defense lawyer asks a witness amounts to potential intelligence for the prosecutor to use to his or her advantage. You don’t believe me? Then read the same advice from police trainer Val Van Brocklin.
Consequently, Petersburg, Virginia, should rectify matters at its police department, where police sergeant Carl Moore (reported in 2012) email-threatened police officers’ jobs (thanks to Jonathan Turley for the tip) should they dare discuss cases with criminal defense lawyers without the prosecutor’s green light. (Update November 6, 2022: I trust that the newer chief prosecutor Lavonda Graham Williams (whom I have known for years since her days as a Virginia criminal defense lawyer) will not tolerate such nonsense.
Fairfax criminal lawyer Jonathan Katz pursues your best defense against Virginia DUI, felony and misdemeanor prosecutions. By the time you conclude your initial confidential consultation with Jon Katz, you will feel more knowledgeable and confident about your defenses. For your free in-person meeting with Jon, call 703-383-1100.