Feb 23, 2017 When prosecutors and police interfere with defense efforts to speak with prosecution witnesses
Prosecutors and police are here to serve the public, and not the other way around. Too many of them forget that. Power corrupts too many people.
Criminal defendants are members of the public, as are their lawyers. Prosecutors and police should tread carefully to ever hint or more directly tell witnesses not to talk with criminal defendants’ lawyers. In fact, binding Virginia Professional Conduct Rule 3.4(h) provides that a lawyer shall not request “a person other than a client to refrain from voluntarily giving relevant information to another party…”
Police are not bound by the lawyers’ ethics rules, but prosecutors do not cleanse themselves of running afoul of the ethics rules by making police their agents to advise witnesses not to talk with criminal defense lawyers.
When police encourage or advise witnesses not to talk with criminal defense lawyers, they are dishonoring their badge, and are engaging in behavior that could have been criminal obstruction of justice if the person encouraging a witness not to talk were a civilian (other than the witness’s lawyer) advising the witness not to talk with police.
Prosecutors’ signals — whether intended or not — to witnesses not to communicate with criminal defense lawyers run the gamut, from non-lawyer “witness coordinators” from prosecutors’ offices who sit with complaining witnesses in the courthouse (thus making witnesses self conscious about talking with the opposing lawyer who stands in juxtaposition to the comforting witness coordinator) to prosecutors who command “you do not have to talk with the defendant’s lawyer“, to prosecutors and police who snidely or without hostility ask the criminal defense lawyer why s/he has asked the witness a particular question, to prosecutors who tell witnesses they do not need to provide the defense with a requested document, to prosecutors who encourage witnesses to tell them if the defense lawyer contacts the witness and encourage that a law enforcement agent be present during any conversation, to prosecutors who stand menacingly close to the defense lawyer conversing with a witness, to prosecutors who warn witnesses of the discomfort that the witness might experience from talking with the defense lawyer.
Police might also get into the action in similar fashion or worse, including encouraging prosecution witnesses to speak first with the prosecutor or to rely on the direction of the prosecutor, discouraging witnesses from talking with the defense lawyer, and standing menacingly close to the defense lawyer conversing with the witness.
The criminal defense lawyer has a job to do, and has various remedies at his or her disposal when prosecutors and police wrongfully obstruct their talking with prosecution witnesses. The remedies run from the very direct (firmly but diplomatically confronting the trespassing prosecutor or police officer, or going to their supervisor) to the more subtle (for instance, waiting for the prosecutor or police officer to have to attend to another case, a phone call, or call of nature, and then talking with the witness).
Civilian witnesses often feel like like fish out of water in the first place in court, and do not need prosecutors, prosecutorial employees nor police making matters worse by discouraging witnesses from speaking with criminal defense lawyers.
Why do I write about all this? Because I see it happen with my own eyes and ears, and the situation must be rectified.