MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001
Go to Federal Manuals Table of Contents - Go to Recurring Problems Table of Contents

Part V(B). Witnesses - Part V(B) 4. Witnesses: Interviewing Of Government Witnesses By Defense Counsel

        Part V(B)4     Interviewing Of Government Witnesses By Defense Counsel: General Principles
        Part V(B)4a   Interviewing Of Government Witnesses By Defense Counsel: Both Sides May Interview
        Part V(B)4b   Witness May Refuse To Be Interviewed By Defense Counsel
        Part V(B)4c   Government May not discourage interviewing of witnesses by defendant
        Part V(B)4d   Interviewing Of Government Witnesses By Defense: Government May Request A Temporary Restraining Order To Prevent Harassment

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 4     Interviewing Of Government Witnesses By Defense Counsel:  General Principles

CAVEAT: See Publication Preface and Caveats.

FORECITE National™ Materials Related To This Issue:

16.13.2 Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses In Advance Of Trial

As a general rule, a witness belongs neither to the government nor to the defense.

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 4a    Witnesses: Interviewing Of Government Witnesses By Defense Counsel: Both Sides May Interview

CAVEAT: See Publication Preface and Caveats.

FORECITE National™ Materials Related To This Issue:

16.13.2 Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses In Advance Of Trial

Both sides have the right to interview witnesses before trial.

Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966)
Salemme v. Ristaino, 587 F.2d 81 (1st Cir. 1978)
United States v. Cook, 608 F.2d 1175 (9th Cir. 1979) (en banc), disapproved on other grounds by Luce v. United States, 469 U.S. 38 (1984)

No provision for disclosing names and addresses of government witnesses is included in FRCRP 16. However, as part of its inherent power to ensure the proper and orderly administration of justice, the court may require the government to provide the defendant with a list of witnesses.

United States v. Napue, 834 F.2d 1311 (7th Cir. 1987)

The Fifth Circuit has stated that addresses of government witnesses must ordinarily be disclosed to the defense.

United States v. Opager, 589 F.2d 799 (5th Cir. 1979)

In a capital case, the defendant is entitled to a list of the witnesses to be produced at trial unless the court finds by a preponderance of the evidence that providing the list "may jeopardize the life or safety of any person."

18 USC 3432

If a witness is in protective custody or if for any reason a witness may be subject to personal danger, it is the duty of the trial court to ensure that counsel for the defense has access to the witness under controlled arrangements. A better procedure is to allow defense counsel to hear directly from the witness whether the witness would be willing to talk to him or her, either alone or in the presence of the witness's own attorney. The court may delay access to a witness in protective custody until shortly before trial when such delay is warranted by the circumstances.

United States v. Walton, 602 F.2d 1176 (4th Cir. 1979)

A witness may of his or her own free will refuse to be interviewed by either side.

Kines v. Butterworth, 669 F.2d 6 (1st Cir. 1981)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 4b    Witness May Refuse To Be Interviewed By Defense Counsel

CAVEAT: See Publication Preface and Caveats.

FORECITE National™ Materials Related To This Issue:

16.13.2 Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses In Advance Of Trial

It is imperative that prosecutors and other government officials maintain a posture of strict neutrality when advising witnesses of their rights and duties with respect to talking to defense counsel.

United States v. Rich, 580 F.2d 929 (9th Cir. 1978)

A defendant's rights are not violated when a government witness chooses not to be interviewed.

United States v. Rice, 550 F.2d 1364 (5th Cir. 1977)
United States v. Bittner, 728 F.2d 1038 (8th Cir. 1984)

A government witness may dictate the circumstances under which he or she will submit to an interview by defense counsel.

United States v. Brown, 555 F.2d 407 (5th Cir. 1977)

A government witness may choose to be interviewed by defense counsel only in the presence of a government attorney.

United States v. Nardi, 633 F.2d 972 (1st Cir. 1980)

The government has no duty to present its witnesses for interviews. Its duty is simply not to deny access.

United States v. Pope, 747 F.2d 632 (11th Cir. 1984)

If a witness declines to be interviewed, defense counsel may not inquire on cross-examination as to why the witness exercised that right.

United States v. Figurski, 545 F.2d 389 (4th Cir. 1976)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 4c    Government May Not Discourage Interviewing Of Witnesses By Defendant

CAVEAT: See Publication Preface and Caveats.

FORECITE National™ Materials Related To This Issue:

16.13.2 Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses In Advance Of Trial

The government may not deny a defendant access to a witness by hiding the witness.

Lockett v. Blackburn, 571 F.2d 309 (5th Cir. 1978)
United States v. Henao, 652 F.2d 591 (5th Cir. 1981)

The government's deliberate concealment of a named eyewitness whose testimony would admittedly be material constitutes a prima facie deprivation of due process.

Lockett v. Blackburn, 571 F.2d 309 (5th Cir. 1978)

If defense counsel establishes inability to learn the whereabouts or identity of eyewitnesses through normal investigative techniques, the trial court may order the government to disclose the names and addresses of the witnesses.

United States v. Sims, 637 F.2d 625 (9th Cir. 1980)

The prosecution may interfere with a defendant's right of access to a government witness only under the clearest and most compelling circumstances.

Salemme v. Ristaino, 587 F.2d 81 (1st Cir. 1978)
United States v. Cook, 608 F.2d 1175 (9th Cir. 1979)

When the free choice of a potential witness to talk to defense counsel is constrained by the prosecution without justification, the constraint improperly interferes with the defendant's right of access to witnesses.

Gregory v. United States, 369 F.2d 185 (D.C. Cir. 1966)
Kines v. Butterworth, 669 F.2d 6 (1st Cir. 1981)

It is not improper for a government representative to advise a government witness of his or her right to decline to be interviewed by defense counsel.

United States v. Bittner, 728 F.2d 1038 (8th Cir. 1984)

MANUAL ON RECURRING PROBLEMS IN CRIMINAL TRIALS - 2001

Part V(B) 4d    Witnesses: Interviewing Of Government Witnesses By Defense: Government May Request A Temporary Restraining Order To Prevent Harassment Of Witnesses

CAVEAT: See Publication Preface and Caveats.

FORECITE National™ Materials Related To This Issue:

16.13.2 Cautionary Instruction Regarding Duty Of Counsel To Interview Witnesses In Advance Of Trial

Section 1514, Title 18 of the U.S. Code permits the court to issue a temporary restraining order prohibiting the harassment of a victim or witness in a federal criminal case if the government files an appropriate application and the court concludes there is a reasonable basis for believing such harassment exists.

United States v. Stewart, 872 F.2d 957 (10th Cir. 1989)