Lawyers in a criminal case (the prosecutor and the defense attorney) cannot encourage witnesses from refusing to speak to the other lawyer about the case.
However, as one court said, “[i]ndeed, witnesses have a choice whether to speak with counsel […]” about what they have seen and heard. Nonetheless, it is improper for an attorney in the case to encourage the witness not to speak to another attorney or attorney’s investigator in the case, about that case.
Of course, a witness can hire his or her own attorney for advice on the potential ramifications of cooperating with the investigation of one side or the other in a criminal case.
Additionally, attorneys and their investigators may not contact a party to a case that the attorney or investigator knows is represented by another attorney in that case, about the subject matter of that case. The attorneys and their investigators may contact a party about entirely separate matters in which the person is not represented by counsel.
Simply put, if Mr. Jones, a lawyer, represents Mr. Adams, his client, on a Theft case occurring March 1, 2011, other lawyers must not interview Mr. Adams about the Theft case occurring March 1, 2011. However, if Mr. Adams is unrepresented in an Assault case occurring February 15, 2011, other lawyers may attempt to interview Mr. Adams about the Assault case.
Often, as a matter of courtesy, the attorney or investigator wishing to speak to Mr. Adams about the Assault case will nonetheless contact Mr. Jones and inform him about the intent to interview Mr. Adams about the Assault case. This is not a requirement, however.
Rules of Criminal Procedure Prohibit Prosecutors and Defense Attorneys from Advising Witnesses Not to Participate in Investigations
When an attorney or someone working for an attorney, such as an investigator, improperly encourages a witness not to speak to the opposing side, he or she has violated a rule of Criminal Procedure.
The Rules of Criminal Procedure exist “to provide for the just determination of criminal proceedings.” One reason they exist is to ensure fairness in the process.
Criminal Rule of Procedure 16(III)(a) says that “neither the prosecuting attorney, the defense counsel, the defendant nor other prosecution or defense personnel shall advise persons having relevant material or information (except the defendant) to refrain from discussing the case or with showing any relevant material to any party, counsel or their agent, nor shall they otherwise impede counsel’s investigation of the case.”
Sanctions for Violating this Rule of Criminal Procedure
When an attorney or personnel working for the attorney violate this rule, the other side may request that sanctions be imposed by the Court against the violator of the rule.
For example, if the prosecutor tells a key witness against the defendant not to speak to the defense attorney’s investigator, the defense attorney may ask that sanctions be imposed. Those sanctions may include any number of things. The Court may use its discretion to determine what sanction, if any, is appropriate.
Examples of sanctions could include: (1) allowing testimony before the jury about the prosecutor telling the witness not to speak to the defense, (2) suppression of any testimony by that witness against the defendant at trial, or (3) dismissal of the case. This list is by no means exhaustive. There are many other possibilities for sanctions, limited only by the creativity of the parties and the Court.
In imposing sanctions, a court must determine first if sanctions are appropriate, and if so, impose the least severe sanction that encourages compliance with the Rules.