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I witnessed (heard) an alleged crime a long while back and was recorded as a witness by the police. Recently, I received an email from the defendant's lawyer requesting contact information and asking me to answer some questions.

Do I have to respond? Does the report I gave to the police not qualify as all the information the lawyer would need? Is this just more helpful information for the lawyer?

I understand that I could be subpoenaed as a witness if the case goes to trial, but do I need to respond to lawyers before then?

Heathcliff
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    I would offer that the lawyer may also be looking for you to say something different from what you said to the police since it has been "a long while back" - and then label you as an unreliable witness. I would suggest reviewing your previous statement when answering the questions. – CramerTV Sep 10 '20 at 20:05
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    @CramerTV I have no way that I know of to review my previous statement. It's just what I told the detective that showed up immediately after the event. As such, I feel it would be most honest to just say I can no longer remember the specifics of the event. – Heathcliff Sep 10 '20 at 20:51
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    If they accuse you of being unreliable or try to compare what you said then and now, I suggest you just say, "If there are any discrepancies, then you should believe my original statement - my memory was fresh then." Note: I'm not a lawyer but I was once a witness and I used that argument when I was challenged. – chasly - supports Monica Sep 10 '20 at 21:46
  • By coincidence, in the last few minutes, I have been watching a trial where the defence lawyer is challenging an expert witness on his previous testimony. The video is here https://www.courttv.com/title/5-ca-v-broderick-dr-christopher-swalwell/ and the time is about 0:42:00 - This is still an issue 20 minutes later when the prosecution lawyer has his turn and steps in to rescue the witness. – chasly - supports Monica Sep 10 '20 at 23:24
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    Ask the detective for a copy of it. Feel free to say why. – Harper - Reinstate Monica Sep 12 '20 at 18:17

3 Answers3

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You don’t have to talk to the lawyer

However, if you don’t it’s very likely you will be subpoenaed. Then you’ll have to talk to them at a time and place of their choosing rather one that’s mutually agreed.

Dale M
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Responding to the email may deflect any further action by the defense lawyer - for example if you ignore it they may decide that you are a "hostile witness" and act accordingly.

On the other hand, if the alleged crime occurred a long time ago and you made a statement to the police as part of their initial investigation, it would be perfectly reasonable to make a reply such as

"I made a police report about this matter on [date]" (and add "at [location]", if the incident happened at a different place from where you lived either then or now), "and I do not have any more information to add to it."

I don't know the details of US legal procedure, but in the UK, if you make a formal witness statement to the police you do not get a personal copy of that statement, so you don't have any record of exactly what information you gave at the time. Most likely, the defense lawyer is looking for you to make some contradiction of what was in the original statement, which can then be used to discredit it by cross-examining you in court.

alephzero
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The Sixth Amendment protects a criminal defendant's right to a fair trial against government interference, but it does not protect against interference from private actors such as yourself.

If you'd like to thwart the defense lawyer as they try to understand what happened and ensure their client gets a fair trial, you have that right under the First Amendment, at least until you receive a subpoena, as you noted.

Community
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bdb484
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  • Shouldn't the lawyer be able to get an understanding of what happened from the prosecution? I thought this was called discovery. – Greendrake Sep 10 '20 at 05:18
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    Yes, but only in the same way that watching Pulp Fiction tells you what's in the briefcase. You've been given information, but it's never enough and always raises more questions than it answers. – bdb484 Sep 10 '20 at 06:42
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    In an adversarial legal system (such as the USA) the job of a defense lawyer is not to get his/her client a fair trial. It is to get his/her client acquitted. Discrediting a witness by any means possible is fair game. – alephzero Sep 10 '20 at 18:51
  • @alephzero: As a consequence of their obligations to the defendant, defense attorneys are somewhat limited in the ways they're allowed to talk to witnesses. As a general rule, anyone who talks to a witness is supposed to inform both parties of anything they find, but this could create a conflict if a defense attorney were told something unfavorable by a witness. If a witness who is questioned at a deposition with both attorneys present reveals something unfavorable to the defendant, but the prosecutor doesn't catch it, defense counsel would be under no obligation to call attention to it... – supercat Sep 10 '20 at 20:05
  • ...since the prosecution would have had a fair chance to notice it himself. If something unfavorable emerged while defense counsel was questioning a witness privately, however, that would make things much more awkward, since any way of notifying the prosecutor of what the witness said would call attention to it. – supercat Sep 10 '20 at 20:07
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    @alephzero Quite wrong. The lawyer's job includes both. Discrediting a witness "by any means possible" is definitely not considered fair game, and can be grounds for disciplinary proceedings. – bdb484 Sep 10 '20 at 20:08
  • @supercat Why do you believe defense attorneys have to notify the prosecutor of "anything they find"? I've never seen or heard of this rule. – bdb484 Sep 10 '20 at 20:10
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    @bdb484: The basic principle is that both sides are supposed to have access to anything a witness says, and both sides are supposed to be aware of anything that has been said to witnesses that might influence their testimony. The question of whether defense counsel would have to report unfavorable things they find out in private meetings with witnesses generally won't come up if defense counsel refrain from privately meeting witnesses in the first place. My point about the duty to report was to suggest one of the reasons why defense counsel would question witnesses in depositions rather... – supercat Sep 10 '20 at 22:03
  • ...than doing so privately. – supercat Sep 10 '20 at 22:04
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    @alephzero, you are almost correct, but it would be more correct to say "get his/her client acquitted by any means possible that conforms with the law and professional ethics". This would exclude, for example, witness tampering or destroying evidence. – JoelFan Sep 11 '20 at 00:31
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    @supercat That's an interesting principle, but my question is why you think it's the law. Most discovery rules I've seen are pretty explicit about what information the defense must produce, and they aren't anywhere near as broad as what you're describing. Can you point to a law that actually imposes the rule you're talking about? – bdb484 Sep 11 '20 at 02:54
  • @bdb484: It's possible I've misremembered or misinterpreted the various things I've read about legal procedures, but my understanding is that "witness tampering" rules impose severe limits on how any party in a case may interact with witnesses in the absence of the opposing party, which is one of the major reasons for having depositions. If e.g. a defense lawyer was interviewing a witness who supported the defendant's alibi noticed an inconsistency and asked the witness for clarification in a way that alerted the witness to the problem, the witness' story might change to... – supercat Sep 11 '20 at 15:57
  • ...support the defendant without the inconsistency. If that happened at a deposition, the prosecutor would be entitled to ask the witness at trial about why the story didn't match the first story given in the deposition. If the defense counsel had been interviewing the witness privately, however, the interview could have helped a lying witness to avoid detection. As for defense attorney obligations, lawyers are forbidden from knowingly soliciting false testimony and passing it off as truth. A defense attorney who privately interviewed someone and found reason to believe that the person... – supercat Sep 11 '20 at 16:04
  • This is generally inconsistent with any law I've interacted with. Do you have any laws you can point to supporting this interpretation of a defense attorney's limitations on informal interviews with witnesses? – bdb484 Sep 11 '20 at 16:06
  • ...was unlikely to be telling the truth would be in a tough predicament. If the lawyer had determined during a deposition that the witness might be telling the truth but probably wasn't, and juidged that a jury who knew everything the lawyer knew would either believe the witness or disregard the testimony without holding it against the defendant, the lawyer could ethically solicit the testimony even though it was probably false, since the jury would have a fair chance to judge its truthfulness. But if the lawyer found the information privately, what could the lawyer ethically do? – supercat Sep 11 '20 at 16:09
  • @supercat We're pretty far afield from the OP's question or your comments on the actual answer. Do you have any law suggesting that the defense attorney must reveal information he learns in informal witness interviews? – bdb484 Sep 11 '20 at 16:14
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    My confidence in Perry Mason is shaken. – Grault Sep 13 '20 at 03:10