Opinion 1020

[Formerly published as Published Informal Opinion 88-2. All Informal Opinions are consolidated in this database.]

We have been requested by both defense and prosecuting attorneys to provide guidance as to what advice a prosecutor may ethically offer to witnesses regarding interviews with defense attorneys or investigators. The inquiries raise the issues of whether a prosecutor may advise a witness to refuse to be interviewed by the defense, whether a prosecuting attorney may encourage witnesses not to be interviewed unless a prosecutor is present and whether a witness may be advised of his or her right to be represented by the prosecutor or a person of his or her choice during the defense interview. We offer the following advice.

Question (1):
May a prosecutor discourage witnesses from talking with a defense attorney or investigator?

It is well established that neither the prosecutor nor the defense may obstruct an attempt by opposing counsel or their agent to communicate with a prospective witness. RPC 3.4(a) provides that a lawyer shall not:
"Unlawfully obstruct another party`s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value."
A lawyer shall not counsel or assist another person to do any such act. RPC 8.4(a).

Similarly, the American Bar Association`s Standards for Criminal Justice, "The Prosecution Function," explicitly states the prosecutor`s obligation:
"A prosecutor should not obstruct communication between prospective witnesses and defense counsel. It is unprofessional conduct to advise any person to decline to give information to the defense."
Section 3.3.1(c), "The Prosecution Function," ABA Standards for Criminal Justice, 2d Ed (1980) at 3-37.

The comments to the ABA Standards enunciate the rationale underlying the standard, and suggest guidelines for prosecutorial conduct in contacting witnesses. Prospective witnesses are nonpartisan; they should be regarded as impartial spokesmen for the facts as they see them. Because witnesses do not "belong" to either party it is improper for a prosecutor, defense counsel, or anyone acting for either to suggest to a witness that he not submit to an interview by opposing counsel. It is not only proper but it may be the duty of the prosecutor and defense counsel to interview any person who may be called as a witness in the case (except that the prosecutor is not entitled to interview a defendant represented by counsel). In the event a witness asks the prosecutor or defense counsel or a member of their staffs whether it is proper for a witness to submit to an interview by opposing counsel or whether he is under a duty to do so, the witness should be informed that, although he is not under legal duty to submit to an interview, it is proper and may be the duty of both counsel to interview all persons who may be witnesses and that it is in the interests of justice that a witness make himself available for interview by counsel.
Standards (Commentary), supra, at 3-38, 39.

We believe this reasoning is sound and conclude that a prosecutor who discourages or otherwise obstructs witnesses from consenting to defense interviews would violate RPC 3.4.

We note that this ethical principle is embodied in CrR 4.7(h), which provides:
(1) Investigations not to be impeded. Except as otherwise provided with respect to protective orders and matters not subject to disclosure, neither the counsel for the parties nor other prosecution or defense personnel shall advise persons other than the defendant having relevant material or information to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede opposing counsel`s investigation of the case.
While the Committee may not render legal advice, we note that the Washington Supreme Court has held that conduct by the prosecution which interferes with defense counsel`s ability to interview alibi witnesses is a violation of a defendant`s constitutional rights. In State v. Burri, 87 Wn.2d 175, 550 P.2d 507 (1976) the prosecution held a special inquiry judge hearing and summoned all of the defense alibi witnesses to appear. The prosecutor instructed the alibi witnesses not to discuss their testimony before the inquiry judge with defense counsel. The trial court`s order dismissing the case was affirmed. The Supreme Court held:
A defendant is denied his right to counsel (U.S. Const. amend. 6; Const. art 1 §22, (amendment 10)) if the actions of the prosecution deny the defendant`s attorney the opportunity to prepare for trial. Such preparation includes the right to make a full investigation of the facts and law applicable to the case.
Id. at 180.

Question (2):
May a prosecutor encourage witnesses not to be interviewed unless a prosecutor is present?
We believe that encouraging witnesses not to be interviewed unless a prosecutor is present constitutes obstructing access to the witness, which is prohibited by RPC 3.4. The comments to Section 33.1(c) of the ABA Standards state:
Counsel may properly request an opportunity to be present at opposing counsel`s interview of the witness, but he may not make his presence a condition of the interview.
Standards (Commentary), supra, at 3-39.
The leading federal case on this issue is Gregory v. United States, 369 F2d 185, 188 (D.C. Cir. 1966), cert. denied, 396 U.S. 865 (1969). The court stated:
...He (the prosecutor) did admit that he advised the witnesses not to talk to anyone unless he, the prosecutor, were present.
We accept the prosecutor`s statement as to his advice to the witnesses as true. But we know nothing in the law which gives the prosecutor the right to interfere with the preparation of the defense by effectively denying defense counsel access to the witnesses except in his presence. Presumably the prosecutor, in interviewing the witnesses, was unencumbered by the presence of defense counsel, and there seems to be no reason why defense counsel should not have equal opportunity to determine, through interviews with the witnesses, what they will testify to. In fact, Canon 39 of the Canons of Professional Ethics makes explicit the propriety of such conduct. "A lawyer may properly interview any witness or prospective witness for the opposing side in any civil or criminal action without the consent of opposing counsel or party.
The court held that the prosecutor`s advice to the witnesses that they not talk to anyone unless the prosecutor was present was an impermissible interference with the defense preparation and denied the defendant a fair trial. See also Coppolino v. Helpern, 266 F. Supp. 930, 935-36, (S.D. N.Y 1967).

Ethics Opinion 84-3 of the Alaska Bar Association reached the same conclusion:
A prosecutor or defense counsel may not mail a brochure to his potential witnesses which states that they should refuse to talk to the opposing counsel unless the lawyer or a member of his office is present for the interview and that they should not allow themselves to "be pressured into an on the spot interview." State policy, as evidenced by the statutory and disciplinary rules, is to facilitate the process of interviewing witnesses by requiring cooperation, disclosure and noninterference of both the prosecutor and defense counsel. Crim. R. 16(b)(1); DRs 7-102(A)(3), 7-103(B), 7-109 (3/9/84).
ABA/BNA Lawyers` Manual on Professional Conduct
Sec. 801:1202.

Question (3):
May a prosecutor advise a witness of his or her right to be represented by a person of the witness`s choice during a defense interview?
We believe it is permissible for the prosecutor to advise a witness of his or her rights as a witness. Those rights include the right, if the witness chooses, to have the prosecution present at a defense interview.

The commentary to §3.3.1(c), ABA Standards, "Prosecution Function," states:
Counsel may properly request an opportunity to be present at opposing counsel`s interview of a witness, but he may not make his presence a condition of the interview.
Id., at 3-39.

The Wisconsin Supreme Court adopted this commentary as a guideline for Wisconsin prosecutors, State v. Simmons, 203 N.W. 2d 887 (1973) and Illinois, People v. Steele, 124 Ill. App. 2nd 761, 464 Ne. 2d 788 (1984); People v. Fuller, 117 Ill. App.2nd 1026, 454 N.E. 2d 334 (1983) and a number of federal circuit courts see e.g., U.S. v. Bittner, 728 F.2d 1038 (8th Cir. 1984); U.S. v. Rich, 580 F.2d 929 (9th Cir. 1978); U.S. v White, 454 F.2d 435 (7th Cir. 1972) have reached the same result.

In recognizing the right to provide this advice, however, we caution that a prosecutor may not condition the interview on the prosecutor`s presence or in any other way obstruct the ability of the defense attorney to properly prepare for trial. As the Ninth Circuit stated:
It is imperative that prosecutors and other officials maintain a posture of strict neutrality when advising witnesses of their duties and rights. Their role as public servants and as protectors of the integrity of the judicial process permits nothing less.
U.S. v. Rich, supra at p. 934.

We believe that the best practice is for a prosecutor to include in the advice given to witnesses regarding their rights the essence of the following from the commentary to the ABA Standards for the Prosecution Function.

. . . The witness should be informed that, although he is not under a legal duty to submit to an interview, it is proper and may be the duty of both counsel to interview all persons who may be witnesses and that it is in the interests of justice that a witness make himself available for interview by counsel.
Id. at p. 3-38-39.