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A Lawyer Talks to a Victim

Question: "Can a lawyer talk to a victim?"– An innocent, young African-American man is falsely accused by a young white man of robbing him. The young white man (alleged victim) was actually attempting to purchase marijuana from the African-American male when the police came to the scene. The would-be marijuana purchaser got scared and lied to police, saying that he was being robbed by the young African-American man. Before the trial, the defense lawyer for the African-American sees the white male outside the courtroom waiting to testify falsely. The defense lawyer speaks very harshly to the young, white, would-be marijuana purchaser about lying and convinces him to go into the courtroom and tell the truth. However, the truth is exactly opposite to what the young white man has already told the prosecutor and had testified to in an earlier hearing. The prosecutor then accuses the defense attorney of unethical behavior and tampering with the alleged victim/witness.

Prosecutor does not represent the victim – How many readers think that the defense lawyer is guilty of unethical behavior because he was intimidating a witness into changing his testimony? A lawyer may talk to the victim in a criminal case without consulting the prosecutor, because the prosecutor is not the lawyer for the victim, and the victim is not the client of the prosecutor. However, while a defense lawyer may talk to a witness, he cannot cross the line of intimidating the witness or else he will be subject to prosecution for tampering with the witness.

Proper conduct for a criminal defense lawyer in this situation – A more experienced criminal defense attorney in this situation would have gone to a person standing nearby, such as another lawyer, or a bailiff, and told him or her that he was going to talk to a witness and then he would have asked the bystander to position himself close enough so that he could hear the conversation between the lawyer and the witness (e.g., the alleged victim). Then, if the lawyer is later accused of witness tampering, the lawyer has a bystander-witness to describe to the jury what actually happened. The jury will then decide whether the witness, who was emphatically scolded by the lawyer, was intimidated into changing his testimony, and, if so, whether the witness was persuaded to tell the truth, or whether the witness was lying because he was intimidated by the lawyer.

Witnesses are told not to talk to defense lawyers – In real life, almost all prosecutors try to persuade prosecution witnesses, including the victim, not to talk to the defense lawyer. But, any witness, including the victim, has a right to talk to the defense lawyer. Moreover, for a defense lawyer to conduct due diligence in preparation for his trial, he should try to interview the victim, either in the presence of his investigator (who should tape record the conversation), or just have the investigator interview the witness without being accompanied by the defense attorney.

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