R.C.M. 701(e) provides that “[e]ach party shall have adequate opportunity to prepare its case and equal opportunity to interview witnesses and inspect evidence. No party may unreasonably impede the access of another party to a witness or evidence.”
- On the other hand, “a potential witness at a criminal trial cannot normally be required to submit to a pretrial interview for either side.” United States v. Alston , 33 M.J. 370, 373 (C.M.A. 1991).
- Therefore, an issue arises when counsel, after the witness inquires or sua sponte , advises the witness about agreeing to an interview with opposing counsel. Army Rule 3.4 makes clear that a “lawyer shall not . . . request a person other than a client to refrain from voluntarily giving relevant information to another party unless (1) the person is a relative or an employee or other agent of a client; and (2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.” AR 27-26, Rule 3.4 (f); see also ABA Standard 11-6.3; 3-3.1(d); ABA Model R. Prof. Conduct 3.4.
- Generally speaking, it is appropriate to inform a witness that it is their choice whether to speak with an opposing counsel or investigator. See ABA Standards for Supreme Court of the United States Criminal Justice: Prosecution Function 3-3.1, Comment.
- However, counsel should scrupulously avoid attempting to subtly encourage witnesses not to agree to speak with the other party. In fact, it is a good practice to advise a witness that their failure to speak to the other side can be fertile ground for cross-examination. Counsel could also tell the witness that if they do not agree to meet with the other party, the witness might be ordered to give a deposition under R.C.M. 703.
- Nonetheless, during the investigatory phase before charges are preferred, trial counsel may ask potential witnesses not to disclose information, and in doing so, trial counsel may explain to them the adverse consequences that might result from disclosure (such as compromising the investigation or endangering others). However, absent a law or court order to the contrary, trial counsel should not imply or state that it is unlawful for potential witnesses to disclose information related to or discovered during an investigation. Barring exceptional circumstances, those witnesses should be advised that they may agree to be interviewed by defense counsel after the preferral of charges. See ABA Standards for Criminal Justice: Prosecutorial Investigations 1.4 (d).
- When the government is interviewing potentially exculpatory witnesses, counsel should not threaten criminal prosecution of perjury to prevent a witness from testifying. United States v. Edmond, 63 M.J. 343 (C.A.A.F. 2006) (a trial counsel threatened a civilian witness (former Soldier) with prosecution by the SAUSA if he testified and then counsel had the SAUSA reiterate the threat of prosecution).
- It is also “proper to caution a witness concerning the need to exercise care in subscribing to a statement prepared by another person.” ABA Standards for Criminal Justice: Prosecution Function 3-3.1, Comment.