Overview of the investigatory responsibilities of interviewing witnesses:
- A trial counsel ordinarily relies on military police, CID, and command personnel for investigation of alleged criminal acts, but the trial counsel has an affirmative responsibility to investigate suspected illegal activity when it is not adequately dealt with by others, although this typically will mean requesting one of the above entities to renew or reopen their investigation.
ABA Standards for Criminal Justice: Prosecution Function 3-3.1(a).
- Throughout the course of the investigation, as new information emerges, the trial counsel should reevaluate:
- Judgments or beliefs as to the culpability or status of persons or entities identified as “witnesses,” “victims,” “subjects” and “targets,” and recognize that the status of such persons may change; and
- The veracity of witnesses and confidential informants and assess the accuracy and completeness of the information that each provides.
ABA Standards for Criminal Justice: Prosecutorial Investigations 1.4(a).
- Upon request and if known, the trial counsel should inform a person or the person’s counsel, whether the person is considered to be a target, subject, witness or victim, including whether their status has changed, unless doing so would compromise a continuing investigation.
ABA Standards for Criminal Justice: Prosecutorial Investigations 1.4(b).
- Defense counsel should conduct a prompt investigation of the circumstances of the case.
ABA Standards for Criminal Justice: Defense Function 4-4.1(a). The investigation should include the interview of witnesses.
- Whether you are a trial counsel conducting an official investigation or a defense counsel investigating the facts surrounding a case, “a lawyer shall not use means that have no substantial purpose other than to embarrass, delay, or burden a third person, or use methods of obtaining evidence that violate the legal rights of such a person.” AR 27-26, Rule 4.4.
- Notwithstanding this obligation to avoid needless harm, “an Army lawyer may communicate a correct statement of facts that includes the possibility of criminal action if a civil obligation is not fulfilled.” AR 27-26, Rule 4.4, Comment.