Can an attorney speak to a witness, outside of court in this case?

Ironpony -- You get answers like this because the answer is, "It depends." Specifically you want to look at Rules 4.1 to 4.5 of the Professional Code of Conduct that controls attorney behavior. These rules have been litigated many times.

Rule 4.2 regulates when an attorney may talk to a witness/victim when the witness/victim is represented by an attorney. Basically you can't, but there are many exceptions. In the scenario that you're describing, however, most attorneys would not talk to the victim. You're on iffy grounds ethically, and it's just not worth the headache.

Jim Clark-Dawe

ironpony said:

For my story, when a defense attorney prepares for his case, is he allowed to speak to witnesses before court by going up to them and just talking? I have asked real lawyers and I keep getting conflicting responses as to whether or not it's legal.

Basically in my story, the lawyer is defending a man on kidnapping related charges. He wants to speak to the victim in the kidnapping. Would he legally be allowed to do that outside of court, in preparation for the case?

I was told that lawyers talk to witnesses and victims all the time by a couple of people, where as others say that the victim would need to have her lawyer present.

Does anyone know for sure, or could the reason be, why I keep getting different responses, is that in some states it's legal, and some it's not?

Click to expand...

I'm a paralegal, but not a criminal paralegal; hopefully there's a criminal paralegal or lawyer who'll expand on my observations.

In my experience, if a person has an attorney, no other attorney involved in the case may speak to that person without the person's attorney present.

It's also been my experience that while most attorneys follow that rule, clients sometimes don't. So your victim could approach the kidnapper's attorney, but the attorney should tell her that her lawyer needs to be present (if she has one; not all witnesses do).

If the victim/witness does not have an attorney, then she can speak to anyone she chooses, as far as I know.

What Jim said. Except that it's very very rare for a victim to be represented by a private attorney in a criminal case. I was an assistant prosecutor for ten years.

The prosecutor's office represents the state, and generally is advancing the allegations made by the victim. Many times, it is the victim's statements that are being presented by the State, but this is not always true across the board (think about the domestic violence victim who denies that an event happened, even though there are witnesses). HOWEVER, the prosecuting attorney DOES NOT represent the victim. If the victim is unrepresented, the defense may contact them, and the prosecutor generally cannot prevent this. However, the victim has every right to say "take a hike, I'm not talking to you" to the defense attorney, and the defense attorney can't browbeat or intimidate or harass them into changing their minds. The prosecutor in most cases can't tell the victim that they aren't allowed to talk to the defense, but they can inform them that anything they say to the defense can be (and likely will be) brought up in court, and that they are allowed to say no. Some states have specific rules on this; worth talking to someone in the state where your story takes place to see if there's a state specific rule.

I should add that a victim of a crime is always presumed to be represented by the prosecuting attorney. Again, a lot more complex than this simple statement, but that's where you start from. A defenses attorney talking to a victim opens himself up to a charge by the prosecutor of harassing the victim, as well as violating Rule 4.2.

Jim Clark-Dawe

While I was writing, ajkjd01was posting. We're both right, and looking at this from the opposite sides. This is exactly why you're getting inconsistent answers. Ajkjd01 and I both realize why we're answering this differently. In fact, the difference is that neither of us are giving complete answers. Ajkjd01 knows that a prosecutor can make a defense attorney's life hell for talking to the victim, and I know that if I really want to, I can do it.

Jim Clark-Dawe

Ironpony, you've opened six threads in the last two weeks. Every one has been demanding information from others, but I don't see you giving anything back.

I'm closing this and your other open threads to give you time to digest the information you're receiving. Because right now, you're not.