Can a defense attorney question a witness outside of court?

[harmonica]

Oregon

Hello. I was wondering if an attorney who is defending someone who allegedly committed a crime, has the legal right to question the witness in the case, outside if court? Is the defense attorney legally allowed to contact the witness and set up a meeting without anyone else present or does he have to do it in a deposition only, if they trial has not started yet?

Thank you for your input.

 

[FlyingRon]

The defense attorney is free to talk to witnesses without going through depositions or any other process. Of course, most in most cases he can't compel the witness to speak to him in such situations nor does he have any recourse if they are lying to him. If the "questioning" goes into the realm of coercing or threatening witnesses, he may have other issues.

 

[TigerD]

Oregon

Hello. I was wondering if an attorney who is defending someone who allegedly committed a crime, has the legal right to question the witness in the case, outside if court? Is the defense attorney legally allowed to contact the witness and set up a meeting without anyone else present or does he have to do it in a deposition only, if they trial has not started yet?

Thank you for your input.

I do it all the time. If the witness is a dick and refuses to talk to my investigator and me, I subpoena him and make him take a day off of work for the depo. Generally, it is (or should be) rare that an attorney will speak to a hostile or potentially hostile witness without someone else present that can be called to the stand if necessary.

TD

 

[HighwayMan]

I do it all the time. If the witness is a dick...

Sounds very attorney-like.

Hmmm.

 

[harmonica]

Okay thanks. Because I was told by a police officer that an attorney can only question witnesses in depositions, and in court, and if they do it outside, without the prosecutor present, it is witness tampering, and they could be disbarred. Is the officer wrong, or is he thinking of something else?

 

[Ohiogal]

Okay thanks. Because I was told by a police officer that an attorney can only question witnesses in depositions, and in court, and if they do it outside, without the prosecutor present, it is witness tampering, and they could be disbarred. Is the officer wrong, or is he thinking of something else?

The officer is wrong.

 

[CdwJava]

Okay thanks. Because I was told by a police officer that an attorney can only question witnesses in depositions, and in court, and if they do it outside, without the prosecutor present, it is witness tampering, and they could be disbarred. Is the officer wrong, or is he thinking of something else?

He is either wrong, was thinking of something else, or something was lost in the translation.

The defense attorney can TRY to speak with a defense witness, but there is generally no requirement that the witness speak to the defense attorney outside the courtroom. Now, if that attorney tries to get the witness to change his or her testimony, that could be considered witness tampering - depending on the facts.

 

[harmonica]

Oh okay, thanks. And it's perfectly okay to speak to the witness alone, say over the phone, without needing anyone else present?

 

[quincy]

Oh okay, thanks. And it's perfectly okay to speak to the witness alone, say over the phone, without needing anyone else present?

Does the witness have his/her own attorney? If so, then the defense attorney needs to speak to the witness only through that attorney.

There is also the federal Victim and Witness Protection Act which prohibits the intimidation and harassment of witnesses before they testify, and also prohibits retaliation or threats of retaliation after witnesses testify. See 18 US Code §1512: http://www.law.cornell.edu/uscode/text/18/1512

Perhaps this is what you and the police officer you spoke to are thinking of?

The answer to your question really depends on the facts of the specific case you are asking about, and why and how the attorney is speaking to the witness.

 

[harmonica]

Okay thanks. The witness wasn't harassed in any way. But does the attorney have the right call the her to ask questions, even though she did not give him her phone number, and he got it from who knows where?

 

[CdwJava]

Okay thanks. The witness wasn't harassed in any way. But does the attorney have the right call the her to ask questions, even though she did not give him her phone number, and he got it from who knows where?

Yes, he can generally call her and ask her questions ... absent any other reason why he shouldn't (like a court order).

She has a right to refuse to answer those questions.

 

[quincy]

Okay thanks. The witness wasn't harassed in any way. But does the attorney have the right call the her to ask questions, even though she did not give him her phone number, and he got it from who knows where?

The witness might want to consult with an attorney in her area if she is concerned about or disturbed by the defense attorney's questions.

The witness does not want to be put in a position where she has said one thing to the police and prosecutor and another to the defense attorney. The witness probably does not want her credibility challenged due to a perhaps flustered answer to a defense attorney question, especially if the witness is sure of what she saw or heard.

I agree with CdwJava that the simple solution for the witness is to just refuse to answer questions posed by the defense attorney outside of the courtroom. I understand, though, that sometimes people can find it hard to be "rude" to someone by refusing to answer a question. That is why people are often so open with police officers who stop them and question them, when it is often in their best interest to remain silent.

 

[Ohiogal]

Okay thanks. The witness wasn't harassed in any way. But does the attorney have the right call the her to ask questions, even though she did not give him her phone number, and he got it from who knows where?

Most likely the defense attorney got the phone number of the witness through discovery.