84-3.

• Case Date: March 09, 1984
• Court: Alaska

Alaska Ethics Opinion 1984. 84-3. Ethics Opinion No. 84-3Advice to Potential Witnesses in a Criminal Case.I The attention of the Ethics Committee has been drawn to a brochure distributed to witnesses by the criminal division of the State Department of Law. The Committee has been asked to rule on the propriety of the following advice given by the State Prosecutor's Office to its witnesses: 1. "If you [witnesses] are willing to talk to them [defense attorneys], you should insist that someone from the District Attorney's Office be present," and 2. "Don't allow yourself to be pressured into an on the spot interview." The Ethics Committee believes that it is improper for a prosecutor (endnote 1) to instruct a prospective witness that he should insist on the presence of the prosecuting attorney, or to otherwise interfere in any form with the means of the defense interview. II Both statutory law and disciplinary rules (contained below) leave little doubt of Alaska's policy toward the principle of non-interference with defendant's means of witness interview. This implicit policy seems apparent even though no statute or rule expressly prohibits the prosecutorial conduct complained of herein. Criminal Rule 16(b)(1) requires the prosecuting attorney to disclose to the defendant relevant information, including: "[t]he names and addresses of persons known by the government to have knowledge of relevant facts and their written or recorded statements or summaries of statements." It would not conform to the spirit of this section to require prosecutors to disclose "names and addresses" of witnesses, but still allow the district attorney to advise witnesses not to be interviewed unless the prosecution is present. (endnote 2) Further, Section DR 7-103(B) of Alaska's Code of Professional Responsibility requires the prosecutor to "make timely disclosure" to the defense of any evidence which tends to negate the accused's guilt. DR 7-109 forbids any attorney from suppressing any relevant evidence, or to "advise or cause a person to secrete himself . . . for the purpose of making him unavailable as a witness." A similar policy is expressed in DR 7-102(A)(3). (endnote 3) The ABA Standards also suggest a parallel policy of cooperation, disclosure and non-interference. It is the responsibility of counsel to conduct discovery so as to achieve "a...