It is a general rule of law that attorneys are not permitted to impede the investigations of witnesses conducted by other lawyers. This is particularly true in criminal law, where depositions are generally not conducted.
Example of Lawyers Impeding Investigations
The following is an example of a lawyer improperly interfering with the investigation of another lawyer in a case:
John Doe, the criminal defendant, is charged with Burglary of the home of Jane Smith. Jane Smith’s friend, Betty Lu, was at Jane Smith’s house on the day of the alleged burglary.
John Doe’s lawyer wants to interview Betty Lu. If the prosecutor tells Betty Lu that she should not speak with John Doe’s lawyer, the prosecutor has improperly impeded the defense’s investigation.
Witnesses Have No Obligation to Participate in an Investigation
It is important to realize that Betty Lu has no obligation to speak with John Doe’s lawyer. She is permitted to refuse.
However, the prosecutor is not permitted to tell her to refuse. The decision must be left entirely to Betty Lu.
Attorneys May Not Interview Parties Represented by Counsel Without Permission
There is a distinction, however, between witnesses, and parties to a case.
In the example above, Betty Lu is a witness, and not a party. Therefore, lawyers are not permitted to impede the efforts of other lawyers in interviewing her.
However, John Doe is a party. No lawyer is permitted to contact and speak with a party, who is represented by counsel, about the case in which he or she is represented. Therefore, the prosecutor may not contact John Doe in any way about the case in which he is the criminal defendant and is represented by counsel.
Defendants Exercising the Right to Remain Silent May Not be Interviewed
Another important rule should be mentioned here, which prohibits contact with John Doe by the prosecutor.
John Doe, as a criminal defendant, has the right to remain silent.
His lawyer has a responsibility to effectively represent him, which in most circumstances includes advising him not to talk to the prosecutor. As a criminal defendant, John Doe may likely choose to exercise his right to remain silent.
Therefore, the prosecutor is not permitted to contact John Doe not only because he is a represented party, but for an additional reason as well: John Doe has chosen to exercise his right to remain silent.
Alleged Victims are Not Parties to a Criminal Case
So what about Jane Smith? May John Doe’s lawyer contact her and request an interview in an effort to investigate the case? Yes.
May the prosecutor tell Jane Smith not to speak to John Doe’s lawyer? No.
Why? Jane Smith is not a party to the case. This is commonly misunderstood. However, the parties to a criminal case in Colorado state courts are the defendant and the People of the State of Colorado. The alleged victim is not a party. Additionally, the prosecutor does not represent Jane Smith. The prosecutor in Colorado state courts represents the People of State of Colorado, not the alleged victim.
Therefore, John Doe’s attorney may contact Jane Smith when investigating the case and the prosecutor may not encourage Jane Smith to decline. However, Jane Smith is free to decline on her own if she chooses.