Part of the discovery process in a criminal case involves investigating the evidence that the other side will present. Criminal defendants and their attorneys will want to assess the strength of the prosecution’s case. This will help them decide whether to accept a plea bargain or go to trial, as well as helping them craft arguments that may be persuasive in negotiations or at trial. If the defense finds out who will be testifying for the prosecution, they can get access to their statements. However, they also may want to talk to these witnesses on the phone or in person.
Reasons to Interview a Prosecution Witness
The prosecution probably will disclose the contents of a witness statement to the defense. You might think that this would make talking to the witness redundant, but the statement provided by the prosecution might not be complete or accurate. Sometimes the statement does not cover all of the information that the defense might want to know from the witness, since the prosecution is approaching the case from a different perspective.
By talking to an opposing witness in person, the defendant’s attorney can get a better sense of their credibility. If they do not remember the events clearly or in detail, this may be a basis for challenging their testimony at trial. Also, by hearing their story in advance, the defense can more easily impeach the witness if they make inconsistent statements during direct examination or cross-examination. If a witness declines to speak to them, the defense may raise their refusal at trial as evidence of their bias against the defendant, which may reduce the credibility of their testimony. Sometimes the conversation may inform the defense about other witnesses and evidence that may bolster their arguments.
Potential Prosecution Witness Discoveries
Bias (e.g., the witness has a motive to exaggerate or has cut a deal with prosecutors)
A lack of credibility
Limited observations (e.g., the witness was far away)
Other witnesses or evidence
Faulty police methods (e.g., evidence was not properly handled)
A criminal defense attorney or their assistants have a right to ask a prosecution witness for an interview as long as they are not harassing or threatening them. The prosecution can advise the witness that they are not required to go through this conversation, but they cannot block them from meeting with the defense. The attorney rather than the defendant should conduct the interview. If the witness is a victim, the interaction may lead to additional charges if the defendant conducts it. Anything that the defendant says to a victim or any other witness can be used against them in court, and other complications also can arise.
When a Prosecution Witness Refuses to Cooperate
An attorney might be able to convince a witness to talk with them despite their reluctance. In other situations, they might retain a private investigator to handle the conversation. This can avoid the problem of the defense lawyer needing to testify about the contents of the conversation if they need to impeach the witness for inconsistent statements at the trial.
Prosecution witnesses are often reluctant to talk to the defense, and they are not required to do so. However, most jurisdictions prohibit prosecutors from explicitly instructing witnesses not to cooperate.
You might feel concerned that you cannot afford to pay for a private investigator in addition to an attorney, especially if you are proceeding with a public defender. Courts sometimes offer the option of a free investigator for charges related to serious crimes. The public defender’s office might have a group of investigators who are regularly available to them, at least to a limited extent.
Depositions are rarely permitted in criminal cases, even though they are common in civil cases. In the unlikely event that your state permits criminal depositions, your attorney might serve a prosecution witness with a subpoena to appear at a deposition. They would answer questions from your attorney under oath in a setting outside court, such as the attorney’s office.