May a prosecutor tell witnesses to insist that someone from the district attorney's office be present before they talk to defense counsel?

Plain-English summary

The Committee reviewed a brochure the State Department of Law's criminal division distributed to witnesses, which advised them that if willing to talk to defense attorneys they "should insist that someone from the District Attorney's Office be present" and should not "be pressured into an on the spot interview." It concluded it is improper for a prosecutor to instruct a prospective witness to insist on the prosecuting attorney's presence, or to otherwise interfere in any form with the means of the defense interview, while noting the same duty would apply to defense counsel.

The opinion grounded its conclusion in Alaska's policy of non-interference with a defendant's means of interviewing witnesses. Criminal Rule 16(b)(1) requires the prosecutor to disclose the names and addresses of persons with knowledge of relevant facts, and Criminal Rule 16(d)(1) prohibits counsel from advising witnesses to refrain from discussing the case with opposing counsel. DR 7-103(B) requires a prosecutor to make timely disclosure of evidence tending to negate guilt; DR 7-109 forbids any attorney from suppressing relevant evidence or advising a person to secrete himself to be unavailable as a witness; DR 7-102(A)(3) and EC 7-13 express a parallel duty. The opinion cited the ABA Standards (Discovery and Procedure Before Trial, and Prosecution and Defense Function), which provide that a prosecutor should not obstruct communication between witnesses and defense counsel and may request to be present at an interview but "may not make his presence a condition of the interview."

The opinion concluded the conduct here was not a direct violation of the rules and did not involve coercion or threats, but that the policy against any interference with the means of the defense interview was implicit in these considerations. A witness may freely decline to be interviewed, and a prosecutor may advise witnesses of their right to refuse; the decision whether an interview is private rests with the witness, not either lawyer. Because witnesses are the property of neither side and the brochure affected the means of defense preparation, the opinion concluded that, absent exceptional circumstances or compelling reasons, the prosecutor should not interfere with the means of defense preparation and witness interviews, and should limit its advice to the witness's freedom to grant or decline an interview.

Currency note

This opinion was issued in 1984, before the Alaska Bar Association's adoption of the Alaska Rules of Professional Conduct (it applies the former Code of Professional Responsibility) and before the 2009 revisions to those rules. The cited criminal rules and case law may have changed. Treat this page as historical context, not current guidance. Verify against current rules and the current Criminal Rules before relying on any specific rule or procedure mentioned here.

Common questions

Q: Can a prosecutor tell witnesses to insist the DA's office be present before talking to defense counsel?

A: The opinion concluded that is improper; a prosecutor may not instruct a witness to insist on the prosecutor's presence or otherwise interfere with the means of the defense interview.

Q: What may a prosecutor properly tell a witness about a defense interview?

A: The opinion concluded the prosecutor's advice should be limited to telling the witness he is free to choose whether or not to be interviewed.

Q: Who decides whether a witness interview happens and on what terms?

A: The opinion concluded the decision rests with the witness, not the prosecutor or defense counsel; witnesses are the property of neither side.

Background and rules framework

The opinion applied the former Code's prosecutorial-disclosure and anti-suppression rules (DR 7-103(B), DR 7-109, DR 7-102(A)(3), EC 7-13), subjects now treated by Model Rule 3.8 (special responsibilities of a prosecutor) and Model Rule 3.4 (fairness to the opposing party and counsel, including not obstructing access to evidence), and read them with Criminal Rule 16 and the ABA Standards on the prosecution and defense functions.

Citations and references

Rules of Professional Conduct (former Code; cf. Model Rules):

• DR 7-103(B) (prosecutor's timely disclosure of evidence negating guilt) (cf. Model Rule 3.8)
• DR 7-109, DR 7-102(A)(3), EC 7-13 (not suppressing evidence or causing a witness to be unavailable) (cf. Model Rule 3.4)

Rules of Criminal Procedure and standards:

• Alaska Criminal Rule 16(b)(1), 16(d)(1) (disclosure; not impeding investigation)
• ABA Standards, Discovery and Procedure Before Trial (1970); Prosecution and Defense Function (1970)

Cases:

• Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966), suppression of the means to obtain evidence
• State v. York, 632 P.2d 1261 (Or. 1981), interference judged by effect
• United States v. Rich, 580 F.2d 929 (9th Cir. 1978), officials must stay strictly neutral when advising witnesses

See also

• Alaska Ethics Op. 85-2: Ex Parte Contact With an Opponent's Experts
• Alaska Ethics Op. 93-2: Compensating Witnesses
• Alaska Ethics Op. 97-2: Threats of Criminal Prosecution in a Civil Matter

Source

• Landing page: https://alaskabar.org/ethics-discipline/ethics-opinions/adopted-ethics-opinions-chronological/
• Original PDF: https://alaskabar.org/wp-content/uploads/84-3.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Ethics Opinion No. 84-3
Advice to Potential Witnesses in a Criminal Case.
I
The attention of the Ethics Committee has been drawn to a brochure
distributed to witnesses by the criminal division of the State Department of
Law. The Committee has been asked to rule on the propriety of the following
advice given by the State Prosecutor's Office to its witnesses:

1. "If you [witnesses] are willing to talk to them [defense attorneys], you
   should insist that someone from the District Attorney's Office be present," and
2. "Don't allow yourself to be pressured into an on the spot interview."
   The Ethics Committee believes that it is improper for a prosecutor (endnote 1)
   to instruct a prospective witness that he should insist on the presence of the
   prosecuting attorney, or to otherwise interfere in any form with the means of
   the defense interview.
   II
   Both statutory law and disciplinary rules (contained below) leave little
   doubt of Alaska's policy toward the principle of non-interference with
   defendant's means of witness interview. This implicit policy seems apparent
   even though no statute or rule expressly prohibits the prosecutorial conduct
   complained of herein. Criminal Rule 16(b)(1) requires the prosecuting attorney
   to disclose to the defendant relevant information, including: "[t]he names and
   addresses of persons known by the government to have knowledge of relevant
   facts and their written or recorded statements or summaries of statements." It
   would not conform to the spirit of this section to require prosecutors to disclose
   "names and addresses" of witnesses, but still allow the district attorney to
   advise witnesses not to be interviewed unless the prosecution is present.
   (endnote 2)
   Further, Section DR 7-103(B) of Alaska's Code of Professional
   Responsibility requires the prosecutor to "make timely disclosure" to the
   defense of any evidence which tends to negate the accused's guilt. DR 7-109
   forbids any attorney from suppressing any relevant evidence, or to "advise or
   cause a person to secrete himself . . . for the purpose of making him
   unavailable as a witness." A similar policy is expressed in DR 7-102(A)(3).
   (endnote 3)
   The ABA Standards also suggest a parallel policy of cooperation,
   disclosure and non-interference. It is the responsibility of counsel to conduct
   discovery so as to achieve "a minimum of imposition on the time and energies"
   of counsel and potential witnesses. ABA Standard, Discovery and Procedure
   1

Before Trial (1970) §1.4 (b). The duty to disclose witness names and addresses
is indicated in Section 2.1(i). The prosecution "should ensure that a flow of
information is maintained." Id. S 2.2(c) Neither counsel shall "impede or oppose
counsel's investigation of the case." Id. §4.1 The ABA Standards more directly
state that a prosecutor "should not obstruct communication" between
prosecutive witnesses and defense counsel. It is unprofessional conduct to
advise any person "to decline to give information to the defense." ABA
Standards, Prosecution and Defense Function (1970) S 3.1(c). The
commentators explain that while counsel may request the chance t be present
at opposing counsel interviews, "he may not make his presence a condition of
the interview." Id. S 3.1, commentary (c).
III
We do not believe that the prosecutor's conduct here is directly in
violation of the above professional rules. (endnote 4) However, implicit in these
ethical considerations is a policy against any interference in any form in the
means of the defense interview. Witnesses may freely chose not to be
interviewed by the defense. Kines v. Butterworth 669 F.2d 6, 9 (1st Cir. 1981).
This Committee does not believe that witnesses should always be ordered to
speak with the defense. The Committee does not believe that it is improper for
a prosecutor to advise prospective witnesses of their right to refuse to submit to
an interview.
This is not a case wherein the prosecutor has used direct coercion,
threats of prosecution or instructed the witness not to cooperate. Webb v.
Texas, 409 U.S. 95 (6th Cir. 1973). However, at the same time, this
prosecutor's statement does not suggest the government simply "does not care"
one way or the other. U.S. v. Nardi, 633 F.2d 972, 977 (1st Cir. 1980).
IV
It is the belief of this Committee that a prosecutor should not instruct a
potential witness that he should "insist" on the prosecutor being present at any
defense interview, or further to otherwise interfere in any form with the means
of the defense interview. Rather, the prosecutor's advice on the subject of
defense interviews should be limited to merely advising a witness that a
witness is free to chose, whether or not, he wishes or declines to be
interviewed. (endnote 5)
V
It is not suggested that there is any direct suppression of witness access
by the State's brochure. But there is a suppression of the "means by which the
defense could obtain evidence." Gregory v. U.S., 369 F.2d 185, 189 (D.C. Cir.
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1966). The concern is the potential by the district attorney to interfer with the
"right" of a defendant to interview an otherwise willing witness. But the issue
need not be the form which the interference takes, but rather whether it is
effective. State v. York, 632 P.2d 1261, 1264-65 (Or. 1981).
On the text of this brochure, the "means" of defense preparation is
affected. Witnesses are property of neither side in a case. Presumably, the
prosecutor, in interviewing and giving his witness a copy of the brochure, was
not encumbered by the presence of defense counsel. There is no reason why
the means available to the defendant should not be equal. Further, State's
brochure does not seek to coerce or threaten witnesses, but merely tells them
to insist on his presence. The State's choice of the lesser degree of interference,
even if in good faith, is still error.
The "decision" regarding whether the interview be private is neither for
the prosecutor nor the defense counsel but "rests with the witness." Mota v.
Buchanan, 547 P.2d 517, 522 (Ariz. 1976). Where the prosecutor has advised
or encouraged a witness to decline to be interviewed by defense counsel unless
the prosecutor is present, it has been held that such prosecutorial conduct
violates both the defendant's due process rights and general standards of
professional conduct. See Gregory v. State, 369 F.2d 185 (D.C. Cir. 1966); State
v. Williams, 581 P.2d 1290 (N.M. 1978). It is "imperative that prosecutors and
other officials maintain a posture of strict neutrality when advising witnesses of
their duties and rights." U.S. v. Rich, 580 F.2d 929, 934 (9th Cir. 1978).
"Abuses can easily result" when officials seek to provide witnesses with advice.
Id.
In the instant situation, the Committee is of the view that absent a
showing of exceptional circumstances or compelling reasons, the district
attorney should not interfere in any form with the means of defense pre-trial
preparation and witness interview. (endnote 6) As such, the State should
decline to provide witnesses with extended advice, and rather should limit its
comments to indicating the freedom of choice to grant or decline an interview.
Adopted by the Alaska Bar Association Ethics Committee on February 16,
1984.
Approved by the Board of Governors on March 9, 1984.
Endnotes:

1. The Committee notes that the comments contained herein with regard to
   the prosecutor's duty could equally apply to the defense attorney's
   obligation.

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2. Indeed, this Criminal Rule continues to prohibit counsel from advising
   witnesses to refrain from discussing the case with opposing counsel . . .
   or "otherwise impede opposing counsel's investigation of the case."
   Criminal Rule 16 (d) (1).
3. An identical expression of the prosecutor's duty to cooperate with
   disclosure of evidence is provided in Ethical Consideration 7-13.
4. The Committee does not wish to impugn the reputation of the
   prosecutor's office for distributing the brochure at issue. Indeed, the
   advice may have been given in good faith, and includes the statement to
   witnesses that it is "completely proper" and they are "encouraged" to talk
   to the defense.
5. The State's brochure tells the witnesses that while they are "not legally
   obligated" to talk to the defense, it is "completely proper" and that the
   "are encouraged" to do so. Any advice on the subject should be limited to
   that language and the other comments deleted. Indeed, a witness could
   be confused when he is "encouraged" to grant an interview, but also told
   to "insist" on the State's presence and warned against being "pressured."
6. It is believed in "exceptional circumstances" or for "compelling reasons"
   that appropriate remedies can be fashioned by counsel and the court.

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