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A Denver Colorado Criminal Lawyer Asks – Can The DA Stop The Witnesses From Talking To The Defense?

By H. Michael Steinberg – Colorado Crininal Defense Lawyer – Attorney – Email the Author at hmsteinberg@hotmail.com

A Denver Colorado Criminal Lawyer Asks - Can The DA Stop The Witnesses From Talking To The Defense?A Denver Colorado Criminal Lawyer Asks – Can The DA Stop The Witnesses From Talking To The Defense? – One of the dirty tricks played by prosecutors in the one sided Colorado criminal justice system – is the admonition given some – and sometimes ALL witnesses – that they should not speak to the “other side” – the defense lawyer or his or her investigator. 

This tactic has exactly the result intended – it sets up – instead of a “search for the truth”  in a criminal trial – the exact opposite – an “us them” – mentality that prevents the defense from a full and fair opportunity to defend against the evidence and to otherwise prepare for trial.

No Automatic Right To A Deposition In Colorado Criminal Cases

Unlike civil matters, the right to take a deposition in a criminal case is not automatic. A deposition is the sworn “out of court” examination of expected trial witnesses. The right to take a deposition of a witness to prepare for a Colorado criminal trial, almost never occurs except under the most  limited of circumstances.

Compare Florida. Florida DOES provide for criminal depositions. Florida has adopted rules similar to the American Bar Association Standards on the subject which include the opportunity to conduct depositions in criminal cases, a rule in place in Florida for forty years. The high court in Florida found that depositions have made a “unique and significant contribution to a fair and economically efficient … criminal process.

While Rule 16 of the Colorado Rules Of Criminal Procedure governs basic discovery rules – Rule 15 – governs the right to depositions. Here is a Link  to Rule 15 – Colorado Depositions in Criminal Cases

Depositions in criminal cases are rare but are permitted under very limited situations under Rule 15 of the Colorado Rules of Criminal Procedure – here is a portion of the relevant sections:

Rule 15. Colorado Criminal Depositions

(a) Motion and Order. The prosecutor or the defendant may file a motion supported by an affidavit any time after an indictment, information, complaint, or summons and complaint is filed requesting that the deposition of a prospective witness be taken before the court. The court may order that a deposition be taken before the court if a prospective witness may be unable to attend a trial or hearing and it is necessary to take that person’s deposition to prevent injustice. …

(a.5) Deposition by Stipulation Permitted. The prosecution and defense may take a deposition before a judge by stipulation.

If There Is No Credible Right To A Deposition In Colorado – How Can The District Attorney Say Things That Might Discourage Witnesses From Speaking To Defense Lawyers and Their Representatives?

There are several legal authorities that mandate the District Attorney NOT – in any way persuade possible trial or fact witnesses to avoid interviews with the defense.

The First of These Authorities Is Colorado Rule of Criminal Procedure – Crim. P. 16(iii)(A).

Colorado Rules of Criminal Procedure 16(III):

(a) Investigation Not to be Impeded.

Subject to the provisions of Parts I(d) and III(d), neither the prosecuting attorney, the defense counsel, nor other prosecution or defense personnel shall advise persons having relevant material or information (except the defendant) to refrain from discussing the case with opposing counsel or showing opposing counsel any relevant material, nor shall they otherwise impede counsel’s investigation of the case.

The Second of These Authorities Is Colorado Bar Association Ethics Opinion 65 (1984)

Colorado Bar Association Ethics Opinion 65:

In any communication to potential witnesses concerning their duties and privileges, both prosecutors and defense counsel are required routinely to advise that:

(1) It is proper and may be the duty of both parties to attempt to interview all persons who may be witnesses and that it is in the interest of justice that such persons, subject to their voluntary and informed consent, be available for pre-trial interviews.

(2) There is no obligation for the witness to submit to a pre-trial interview by the prosecution or defense and the decision to submit to such an interview belongs to the witness.

“Since free access to potential witnesses is integral to the administration of justice, attorneys are bound to refrain from interfering with efforts of opposing counsel to conduct pre-trial interviews. It is deemed unethical conduct for an attorney or his representative to advise or to imply to a potential witness that he should not submit to a pre-trial interview by opposing counsel or his representative.”

The Third of These Authorities Is American Bar Association Standard 3-3.1(c)

The ABA Standards for Criminal Justice, Standard 3-3.1(c) states:

A prosecutor should not discourage or obstruct communication between prospective witnesses and defense counsel. It is unprofessional conduct for the prosecutor to advise any person or cause any person to be advised to decline to give to the defense information which such person has the right to give.

The Fourth “Group” of These Authorities Arise out of Basic Constitutional Protections of the United States’ and Colorado State Constitutions

The accused in a Colorado criminal trial has the right to the effective assistance of counsel, to the effective and plenary cross-examination and confrontation of witnesses, and to the due process of law: the Colorado and the United States Constitutions. U. S. Const. amends V, VI, and XIV; Colo. Const. art. II, sections 16 and 25.

Due process requires that a criminal defendant is to be treated with fairness throughout the criminal process. A criminal defendant has the fundamental right to counsel and to receive the effective assistance of counsel to be “effective” an attorney must investigate his or her client’s case.

The Fifth Source of These Authorities Is Rule 3.4 of the Colorado Rules of Professional Conduct Fairness to Opposing Party and Counsel.

Rule 3.4. Fairness to Opposing Party and Counsel reads:

A lawyer shall not:

(a) 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;

(b) falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;

(c) knowingly disobey an obligation under the rules of a tribunal except for an open refusal based on an assertion that no valid obligation exists;

(d) in pretrial procedure, make a frivolous discovery request or fail to make reasonably diligent effort to comply with a legally proper discovery request by an opposing party;

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence, assert personal knowledge of facts in issue except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused; or

(f) request a person other than a client to refrain from voluntarily giving relevant information to another party unless:

(1) the person is a relative or an employee or other agent of a client and the lawyer is not prohibited by other law from making such a request; and

(2) the lawyer reasonably believes that the person’s interests will not be adversely affected by refraining from giving such information.

A Denver Colorado Criminal Lawyer Asks – Can The DA Stop The Witnesses From Talking To The Defense?

Summary and Conclusion – The prosecution is routinely asked by witnesses – especially key witnesses – whether they should speak to the defense – the so called “other side” through the defense attorney or a defense investigator. This article stands for the proposition that witnesses do not belong to either side of a criminal case.

If you are the defendant or the district attorney – the answer should be the same – “it is proper for the other side to try to talk to you. You may discuss the case with them if you wish to do so, you also have the right not to talk to them. The choice is entirely yours.”

Often a criminal trial turns into a game.  No longer is the DA targeting the truth – they are targeting you.  In court – the “truth” is never what actually happened, it is what it “looks like” happened. Guilt is the way you look – not what the evidence against you actually means.

Prosecutors who win at all costs – who use tactics as described in this article deserve to have sanctions – punishments placed on them and their case when they resort to “gaming” the defense.

When an lawyer or a police investigator encourages – in any way – a witness not to speak to the opposing side, he or she has violates many laws and standards of conduct and a judge must punish the transgressor “to ensure fairness in the process.”

Equal Justice means that one or more of these sanctions should be imposed –  (or other sanctions as appropriate):

  • Allowing testimony before the jury about the prosecutor telling the witness not to speak to the defense,
  • Suppression of any testimony by that witness against the defendant at trial, or the most serious sanction,
  • Dismissal of the case.

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ABOUT THE AUTHOR: H. Michael Steinberg –Email The AuthorA Denver Colorado Criminal Defense Lawyer protecting the rights of the accused – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – 720-220-2277.

If you are charged with A Colorado crime or you have questions about the topic of this article – A Denver Colorado Criminal Lawyer Asks – Can The DA Stop The Witnesses From Talking To The Defense? – please call our office. The Law Offices of H. Michael Steinberg, in Denver, Colorado, provide criminal defense clients with effective, efficient, intelligent and strong legal advocacy. We can educate you and help you navigate the stressful and complex legal process related to your criminal defense issue.

Colorado Criminal Defense LawH. Michael Steinberg, is a Denver, Colorado criminal defense lawyer with over 30 years of day to day courtroom experience – specializing in Colorado Criminal Law along the Front Range. He will provide you with a free initial case consultation to evaluate your legal issues and to answer your questions with an honest assessment of your options. Remember, it costs NOTHING to discuss your case. Call now for an immediate free phone consultation.

Helping Clients To Make Informed Decisions In the Defense of Colorado Criminal Cases.

Contact A Lawyer with Three Decades of Experience as a Denver Criminal Attorney at The Steinberg Colorado Criminal Defense Law Firm today.

Colorado Defense Lawyer H. Michael Steinberg provides solid criminal defense for clients throughout the Front Range of Colorado – including the City and County courts of Adams County, Arapahoe County, City and County of Boulder, City and County of Broomfield, City and County of Denver, Douglas County, El Paso County – Colorado Springs, Gilpin County, Jefferson County, Larimer County, and Weld County,…. and all the other cities and counties of Colorado along the I-25 Corridor… on cases involving the topic of this article – A Denver Colorado Criminal Lawyer Asks – Can The DA Stop The Witnesses From Talking To The Defense?


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___________________________
H. Michael Steinberg Esq.
Attorney and Counselor at Law
The Colorado Criminal Defense Law Firm of H. Michael Steinberg
A Denver, Colorado Lawyer Focused Exclusively On
Colorado Criminal Law For Over 30 Years.
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