San Diego criminal defense attorney Stefano Molea discusses the dangers of an attorney interviewing a potential witness without an investigator or third-party present.
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Transcript: - Hi, it's Stefano Molea here, San Diego criminal defense attorney and partner at the law office of David P. Shapiro, where we help good people regain control of their future, when charged with the crime. Now, when someone hires a criminal defense attorney, a lot of times there will be a need for investigation and there are witnesses potentially to be interviewed. There are scenes to be visited, measurements to be made, et cetera, et cetera. When it comes to interviewing witnesses, some clients may think, "Okay Stefano, "why don't you just call the witness? "Why don't you just call this witness "and take their statement and we can, you know, "save the cost or save the time "of getting an investigator to go do it." Let me explain why. Let's say that I were to do that. Let's say that I call John and I say, "Hey John, I heard that you may have some information "relevant to this case. "You know, I'm his defense lawyer, and I'm just calling "to get your side of what you remember." And John tells me, "Okay, well A, B, C happened." "Okay, great, thanks John, appreciate it." So, I write that down as a statement. I send it over, let's say, to the prosecutor, or maybe I don't, depending on what stage and what my obligations are. But, let's say that John then, at some point down the road, takes the stand in court. And he takes the stand and we're talking about the exact same thing. And he's asked the same questions that maybe I had asked him previously, whether I asked him or maybe it's the prosecutor. And now, John doesn't say A, B, C anymore. He says, "X, Y, Z." Well, that's kind of a problem, because when he told me, and I asked him the same questions, his story was different. It was A, B, C. So now, what can we do? If I was the only one who interviewed him, then now I've become a witness to impeach John. But I'm the lawyer representing the client, so I can't be a witness. So, you see the conundrum there, right? So, that's why if there ever is a witness interview that I'm part of, I will always have a person with me, whether it's an investigator, whether it's a legal assistant, whether it's another attorney, frankly. Anybody who is obviously part of the team can become a witness to the statement, so that they can write down in their notes what John said. And if John in the future were to take the stand and say something different, then I'm not in this weird predicament. I can call that witness to take the stand and say, "Hey, do you remember when we talked to John on this date? "What did he say then?" And so now, that witness is used to impeach what John just said in court, which is obviously different than what he told us. Okay? So, that's sort of an important role. Frankly, a lot of people don't really pay attention to this. I've honestly seen a prosecutor do something like this and they put themselves in a very strange position, where they would maybe even have to tap out of the case and have someone else come in and continue prosecuting. And then they become a witness in the case, and that's very problematic, very messy, and frankly very embarrassing. So, hopefully this information is helpful. If you have any questions, obviously leave them in the comments or give us a call. Again, my name's Stefano Molea, partner at the law office of David P. Shapiro. Our phone number 619-295-3555.
