Professional Deregulation of Prosecutors: Defense Contact with Victims, Survivors, and Witnesses in the Era of Victims' Rights

Georgetown Journal of Legal Ethics, The, Fall 2003 by Caudill, David S

INTRODUCTION

Prosecutors and victim advocates are becoming more brazen about discouraging witnesses from speaking to defense counsel and investigators .... It is important for counsel to document any insulation of witnesses from defense contact and to fight it on the grounds that the defendant's rights to the presumption of innocence, confrontation, effective assistance of counsel and to present a defense are violated by these tactics. '

Tensions persist between the growing public concern for victims' rights and traditional concerns for the rights of an accused2 - hence the perennial joke that a conservative is a liberal who has been mugged, and a liberal is a conservative who has been arrested. While the victims' rights movement can be criticized as having more to do with crime control than with the alienation of victims in the criminal justice system,3 proposed constitutional amendments and other legislation to protect victims and to ensure their opportunity to participate in criminal trials continue to proliferate.4 Achieving an appropriate balance between victims' rights and the rights of defendants in the criminal law process, which sometimes appear contradictory, is an ongoing challenge for courts and commentators.5

Over a decade ago, Professor Bennett Gershman issued a compelling indictment of the "new" prosecutors-more powerful than ever, "more insulated from judicial control over their conduct," and "increasingly immune to ethical restraints."6 "Only the last point," Gershman observed, is controversial; "the first two are easily documented, and generally accepted by the courts and commentators."7 Arguing that the "inherent inequality" between "the prosecutor and the defendant has intensified,"8 Gershman highlighted increased investigative, charging, convicting, and sentencing powers,9 as well as the expansion of the harmless error rule:

The rule has developed into the most powerful judicial weapon to preserve convictions whenever an appellate tribunal . . . concludes that the defendant is clearly guilty. The harmless error rule thus modifies prosecutorial behavior [by tacitly informing] prosecutors that they can weigh the commission of evidentiary or procedural violations not against a legal or ethical standard of appropriate conduct, but rather, against an increasingly accurate prediction that the appellate courts will ignore the misconduct when sufficient evidence [of guilt] exists . . . .10

The demise of judicial supervisory power and the absence of meaningful standards concerning prosecutorial discretion, Gershman argues, are joined by a virtual exemption from ethical restraints to create both the "Age of the Prosecutor" and the urgent need to restore the balance of power in criminal prosecutions. ' ' Gershman's proposals, "suggested to invite further discussion," include expanded discovery opportunities, a complex redefinition of the institutional role of the prosecutor, and establishing prosecutor misconduct commissions in light of the higher ethical standards applicable to "quasi-judicial" prosecutors.12

In this essay, I limit my analysis to two aspects of the problem of prosecutorial interference with defense contact with witnesses: first, I focus on the moment when a prosecutor advises a victim, survivor, or witness of his or her right to refuse a pre-trial interview with defense counsel or investigators; second, I focus on the 1993 revisions to the ABA Standards for Criminal justice ("ABA Standards")13 that eliminated both a prosecutorial duty to encourage defense contact in the interests of justice, and the term "unprofessional conduct" as a description of prosecutorial interference with defense contact.14 As to the first phenomenon, there is concern that some prosecutors explain the right to refuse defense contact "in a manner so as to discourage witnesses from talking with the defense."15 "Although existing ethical rules and case law already forbid prosecutors and defense lawyers from instructing witnesses not to talk with the other side, too many witnesses, either explicitly or implicitly, receive those exact instructions."16 Significantly, explicit interference is often a violation of statutory law (e.g., rules of criminal procedure and their discovery provisions),17 constitutional law (e.g., the Due Process Clause of the United States Constitution),18 case law (wherein such conduct is condemned),19 and codes of professional responsibility, including state bar ethics rules and the ABA Standards.20 Short of advising a witness to avoid defense contact, however, prosecutors are capable of more subtle discouragement - e.g., warning witnesses that their statements may be used against them - even when witnesses are told, "I'm not telling you not to talk to them."

As to the second aspect of defense contact, even when earlier official commentary to the ABA Standards provided an affirmative duty to encourage defense contact,21 which was justified by numerous aphorisms such as "we must avoid trial by ambush"22 and "trials are a search for truth,"23 there were problems with both the status of the ABA Standards (i.e., they are rarely adopted) and the lesser status of the commentary (even if the AM Standards are adopted).24 Once that duty to encourage contact was eliminated, leaving only the usual state bar disciplinary rule that witnesses should not be advised to avoid defense contact, even that ethical rule might not have the status of law in a criminal trial.25 When a claim of prosecutorial misconduct is made, recourse to discovery statutes or to the constitution tends to eclipse the ethical regulation of prosecutors. Therefore, notwithstanding the seeming clarity of the rule against prosecutorial interference, the ethical regulation of prosecutors is, to many observers, strikingly weak and confused. "The debate is ongoing whether the discipline of prosecutors is 'lax.' Review of prosecutors by disciplinary agencies is important because their professional conduct is unlikely to receive full review in courts of law."26 While the rise of the victims' rights movement may not be the source of this weakness and confusion, it is in the atmosphere surrounding victims' rights that the ethical regulation of prosecutors needs to be revitalized. For example, the 1993 edition of the ABA Standards, which reduced the obligations of prosecutors with respect to defense contact with witnesses, included six new sections concerning relations with victims.27 Prosecutors have the obligation to provide information to victims, to protect them, to notify them of proceedings, to reduce the time they must spend attending proceedings, and to ensure that victims have the opportunity to consult with the prosecutor.28 In combination, (i) the elimination of a prosecutorial duty to encourage defense contact, and (ii) the obligations of prosecutors to assist victims, together betray a subtle shift in the ethical orientation of prosecutors.