What may a Louisiana police officer's lawyer do during a departmental interrogation?

Plain-English summary

Hammond's mayor asked how an officer's counsel could take part in a departmental interrogation and in witness testimony. In Opinion 03-0133, the Attorney General drew a line between advising the officer and conducting the interrogation. Counsel could confer with the officer as much as counsel thought necessary, but could not ask the department's questions or raise objections during the questioning.

The opinion also said the statute let counsel call witnesses for the officer. The department could not exclude testimony on courtroom grounds such as irrelevance or repetition in this nonjudicial setting. Counsel's right to be present when the officer was questioned did not extend to separate departmental interviews of witnesses counsel had called.

Currency note

This opinion was issued in 2003. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

What the opinion meant at issuance

Officers under investigation and their counsel

The AG described counsel's role during the officer's own interrogation as advising and conferring with the officer. The opinion said counsel could call witnesses on the officer's behalf, but had no right to attend departmental interviews of those witnesses because counsel did not represent them.

Investigating departments

The opinion rejected department-imposed limits on testimony based on whether it was immaterial, cumulative, irrelevant, or otherwise inappropriate. It also rejected department requirements that counsel identify witnesses in advance or submit them to pretestimony interviews as controls on testimony in this setting.

Common questions

Q: Could the officer's lawyer object or ask questions during the interrogation? A: No. The opinion limited counsel's role during questioning to advising the officer, while allowing counsel to confer with the officer without a department-imposed limit.

Q: Could counsel call witnesses for the officer? A: Yes. The AG quoted LSA-R.S. 40:2531(B)(6), which said counsel called by the officer under investigation may call witnesses on the officer's behalf.

Q: Could counsel attend the department's separate interviews of those witnesses? A: The opinion said no; counsel's presence right concerned questioning of the officer, not witnesses counsel did not represent.

Q: Could the department bar witness testimony as irrelevant or repetitive? A: The AG said such controls belonged to a judge in a trial. In the departmental interrogation setting he addressed, the department could not control testimony to that extent.

Background and statutory framework

The mayor asked three questions about counsel's participation, witness limits, and counsel's presence at witness interviews. The opinion relied on LSA-C.E. Art. 611 for its discussion of interrogation and on LSA-R.S. 40:2531(B)(6) for counsel's ability to call witnesses. Its conclusions addressed this departmental setting, not a court proceeding.

Citations and references

Authorities named in the opinion: LSA-C.E. Art. 611 and LSA-R.S. 40:2531(B)(6).

Source

• Landing page: https://www.ag.state.la.us/Opinions
• Original PDF: https://www.ag.state.la.us/Opinion/Download/03-0133

Original opinion text

P.O. BOX 94095
DEPARTMENT OF JUSTICE
BATON ROUGE, LA 70804-9095
RICHARD P. IEYOUB CRIMINAL DIVISION Telephone:
ATTORNEY GENERAL
(225) 342-7552
FAX:

JUL g 1 2003
(225) 342-7893

OPINION 03-0133

      Mr. Mayson H. Foster             60        LAW OFFICERS - Authority & Jurisdiction

Mayor, City of Hammond Counsel for the officer may confer with his client to whatever degree
P.O. Box 2788
he deems necessary. Limitations on witnesses and testimony are left
to the discretion of the judge, since there is no judge here, the Hammond, LA 70804-2788 department may not limit testimony to that degree.

Dear Mayor Foster:

This office is in receipt of your opinion request of recent date wherein you ask the following three questions: (1) What does the language "presence of counsel" mean in terms of the level of participation of an officer’s counsel, (2) What limitations, if any, can a department impose on counsel for the officer under investigation concerning his right to call witnesses to testify on behalf of the officer under investigation, and (3) Does the counsel for the officer under investigation have the right to be present when the department interviews the witnesses called by counsel?

Our response to the first question is governed by the provisions of Mode and Order of Interrogation and Presentation, LSA-C.E. Art. 611. Therein note that the same rules for counsel of a client apply in the interrogation of an officer.

You specifically wanted to know if the officer’s counsel has the right to ask questions or raise objections during the interrogation. The officer’s counsel has only one available function during the interrogation. He may advise his client.
Counsel may not ask questions or raise objections. You also wanted to know to what degree counsel might confer with his client. Counsel for the officer may confer with his client to whatever degree he deems necessary. No limitations may be placed on actions between counsel and client.

Our response to the second question is governed by the provisions of Applicability; Minimum Standards During Investigation, LSA-R.S. 40:2531(B)(6).
Therein note that no limits are placed on the process of calling witnesses. It states in pertinent part:

(6) The counsel called by the law enforcement officer under investigation may call witnesses to testify on his behalf.

Specifically you asked if the Department could refuse to allow immaterial, cumulative, irrelevant, or other testimony deemed to be inappropriate by the

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Mr. Mayson H. Foster
OPINION 03-0133
Page 2

department. All of these things are left to the discretion of the judge. In this case since there is no judge then the department cannot control the testimony to this extent. All the specifics of standards to be applied that you asked about are necessary in jury trials. The setting of a law enforcement interrogation does not require such depth.

Our response to the third question is governed by the provisions of Mode and Order of Interrogation and Presentation, LSA-C.E. Art. 611. Therein note that the same rules for counsel of a client apply in the interrogation of an officer.

Specifically you asked if the counsel for the officer has the right to be present when the department interviews the witnesses called by counsel. Counsel for the officer only has the right to be present when his client is being questioned. He has no right to be present while the department interviews witnesses because he is not representing those witnesses. You then asked if the department could require counsel to designate witnesses in advance of their testimony and if the department could require that the witnesses be interviewed by the department prior to their testimony. Again all of these things are left to the discretion of the judge. In this case since there is no judge then the department cannot control the testimony to this extent. All the specifics of standards to be applied that you asked about are necessary in jury trials. The setting of a law enforcement interrogation does not require such depth.

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ARTHUR
ASSISTANT ATTORNEY GENERAL

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