Discussion of truthfulness in interviewing witnesses:
- Counsel must ensure that they conduct their interviews consistent with their ethical duties regarding truthfulness.
- “In the course of representing a client, a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person; or (b) fail to disclose a material fact to a third person when disclosure is necessary to avoid assisting a criminal or fraudulent act by a client, unless disclosure is prohibited by Rule 1.6.” AR 27-26, Rule 4.1.
- While Rule 4.1 makes a failure to disclose an ethical violation in very limited circumstances, one other such exception exists. When “dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonable should know that the unrepresented person misunderstands the lawyer’s role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.” AR 27-26, Rule 4.3.
- Having victims present during court-martial proceedings can have a powerful impact. As such, trial counsel may encourage victims to be present even if their testimony is complete or is otherwise not necessary. Nonetheless, trial counsel should not “require victims and witnesses to attend judicial proceedings unless their testimony is essential to the prosecution or is required by law.” ABA Standards for Criminal Justice: Prosecution Function 3-3.2(f).
- Counsel should not imply the existence of legal authority to interview an individual or compel the attendance of a witness if counsel does not have such authority. ABA Standards for Criminal Justice: Prosecution Function 3-3.2(e);
See United States v. Villa-Chaparro
, 115 F.3d 797 (10th Cir. 1997) (U.S. Attorney’s Office improperly used Rule 17 subpoenas to bring witness in for pre- trial interviews).