11 July 2012

How to Prosecute: (2) Learn to Deal with Defense Attorneys : C. Trusting Wrongly

C.  Do not trust wrongly

This is the hardest single lesson to teach prosecutors, young and old. The defense attorney has an ethical duty to disclose everything about the case to his client. EVERYTHING.  If you disclose to the defense attorney the entire setup the local vice cops have in your county and it has something to do with his case the attorney must tell his client. If you tell the defense attorney the name of the confidential informant the attorney must tell his client.  If you tell the defense attorney that the primary witness has moved to Saskatchewan and won't be available for trial the attorney must tell his client. 

Do not put the defense attorney in the position having to choose between his relationship with you, as a prosecutor he will have to deal with many times, and his client, for whom he is an agent. If you are about to (or should) start a statement with, "Look, don't tell your client but . . ." then you need to just keep your mouth shut.  Once you've done that to a defense attorney he has two choices. He can betray his client and keep your confidence or he can hurt his relationship with you and do his legal and ethical duty. The better defense attorneys will live up to their obligation to their clients. And you will get angry at them for your failure.

On the other hand, when a defense attorney tries to get you to tell him something you shouldn't, don't let yourself get get sucked in. When you hear the words, "If you tell me I won't tell my client" you have either been lied to or the defense attorney is offering to act unethically. Obviously, if the defense attorney is lying to you you should not reveal the sought information.  As well, you should neither be participating in nor encouraging unethical behavior. I see this most often in a couple circumstances.

Example 1:  In the middle of discussing the facts of the case the defense attorney says something like, "The CI's not his mother, is it? Client thinks its his mother. I think it's the neighbor. Which is it? Don't worry, I won't tell Client." If alarm bells aren't screaming in your head at this point, you are entirely too trusting and should look into becoming a lawyer who writes wills for a living.  

Example 2:  You're talking to a defense attorney who has approached you about his client testifying against his co-defendants. You say you'd be happy to have his testimony, but you won't promise anything in result for it. The defense attorney pushes you. "You can tell me what the deal will be and I won't tell him. It will give me an idea of whether I should recommend this course of action or not." The unspoken idea here is that his client will be able to go to the stand and testify that he doesn't know what will happen to him after he testifies.  Don't do it.  To begin with, it is not ethical for the defense attorney to refuse to disclose that information to his client (who will inevitably ask). Even if the defendant agrees not to know, you benefit naught from this. Because the defense attorney has an ethical duty to disclose that information to his client, you have to act as though it has occurred and have a constitutional (Brady, Giglio) duty to disclose it to any attorney for any defendant who will be cross examining the cooperating defendant.

No comments: