Jul 31, 2014 Prosecutors must NOT tell or even hint at cops and other 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. With certain exceptions applicable to private practicing lawyers, lawyers simply are not permitted by lawyers ethics rules to do that. Nevertheless, prosecutors exist who will tell police and other witnesses between the lines to not talk with defense counsel. For starters, some prosecutors’ offices provide "victims’ assistants" to sit with alleged crime victims while waiting for the case to be called. 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 no 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. It is our right to not talk or to talk." I told the prosecutor that this hardly sounded like a proper communication from the prosecutor. As prosecutors go this one is particularly not liked well by a high number of criminal defense lawyers, who all probably know to expect such shenanigans from her.
Hey, prosecutors and cops: why are any of you trying to hush up witnesses? 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? The read the same advice from police trainer Val Van Brocklin.
Consequently, Petersburg, Virginia, should clean house at its police department, where police sergeant Carl Moore has email-threatened police officers’ jobs (see here and here) (thanks to Jonathan Turley for the tip) should they dare discuss cases with criminal defense lawyers without the prosecutor’s green light.
Clearly the Petersburg chief prosecutor Cassandra Conover knows about Sgt. Moore’s directive. What is she going to do to knock sense into the police department’s head that no job harm will come to any officer to speak with criminal defense lawyers? What is she going to do to publicly decry Sgt. Moore’s message? I am waiting to hear from you on this, Ms. Conover.