Walking a thin line

Until it has been proven that a crime was committed, there are no victims - there are complaining witnesses. It's one of the biggest philosophical problems I have with the whole notion of "victims' rights." The only folks who have rights in the criminal (in)justice system set out in stone (apparently a soft stone such as soapstone) are those accused of breaking the law.

While a case is still pending there is no such beast as victims' rights. Judges and prosecutors who go on and on about protecting the rights of victims in pending cases are either being intellectually dishonest or they just don't get this whole Constitution thing.

That brings me back to a letter I saw in a case file. The letter was sent by an prosecutor to the complaining witness in a theft case. In the letter he informed the complaining witness that the accused had been indicted by a grand jury. So far, so good. He asked the complaining witness to notify him if she moved or got a new phone number. He also asked her to provide proof of any actual losses she may have suffered. Okay. 

But then there was this:

"If someone outside this office contacts you for an interview, notify us before you give the interview. It is your decision whether or not you wish to grant the interview. If the person contacting you states that he is an investigator of the court or a representative of the District Attorney's Office, always ask for identification or feel free to call us."

As near as I can tell, the District Attorney doesn't represent the complaining witness in this case (or in any other case). The complaining witness is just that - a witness. Both the prosecutor and the defense attorney have a right to speak to any witnesses in a case. It's true that oftentimes witnesses don't want to speak with the defense attorney (particularly if they are law enforcement officers), but the District Attorney certainly has no right to tell a witness not to talk with a defense attorney.

The entire tenor of the request is to dissuade a complaining witness from speaking to a defense attorney. Now I understand why a prosecutor might want to do that -- a witness' story tends to change after they've had the opportunity to be briefed by a prosecutor. What a witness says before being prepped tends to be a more truthful account of what happened. (Attend any ALR hearing and you'll see what I'm talking about.)

On the other hand, if a witness speaks with the defense attorney it can actually move the case along more quickly. The attorney can flesh out the story in the offense report and advise his client about what the testimony is likely to be at trial. Such an interview might lead to the defendant accepting a plea instead of pushing a case to trial. The interview might also point out inconsistencies in the story related to the police and allow the prosecutor to adjust an offer or reduce or dismiss a case.

While the letter does not tell a complaining witness not to talk to a defense attorney, it certainly has a whiff of that admonition. While the tone might not cross that ethical line pertaining to witness tampering, it certainly is dancing on the chalk.