Ezel / Ethics Opinions / NYSBA

After a conviction, can defense counsel hire an investigator to befriend a key prosecution witness to find out if the testimony was perjured?

Short answer The opinion concluded that defense counsel who has reason to suspect perjury may employ a private investigator to befriend a key prosecution witness to test the truthfulness of the testimony, so long as there is no deceit, no improper inducement to change testimony, and no oppressive methods, and the investigator discloses his lawyer-principal if asked.
Bar
NYSBA
Issued
July 9, 1975

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This page answers the general question as of 1975. Ask about yours and see what the current New York Rules of Professional Conduct say for your facts, with citations.

Disclaimer: Advisory only. Not binding precedent.
About this page: The plain-English summary, reader guidance, and Q&A below were written by Ezel based on the official ethics opinion. The original opinion (linked on this page) is the authoritative source for any reliance.

Plain-English summary

After his client's conviction, defense counsel suspected the key prosecution witness had given perjured testimony and asked whether he could employ a private investigator to befriend that witness to determine the truth. The committee reasoned that interviewing a prosecution witness before trial is proper (N.Y. State 245 (1972)) because it serves the lawyer's Canon 6 duty of competent representation, and that interviewing an adverse witness after trial to bring out the truth is likewise not improper. Employing an investigator to do so raised additional questions but did not change the result.

The committee drew on the spirit of EC 7-26, which forbids using perjured testimony and suggests a lawyer with reason to suspect perjury may take affirmative action to redress the wrong and seek the truth, read together with Canon 7's duty to represent the client zealously within the bounds of the law (EC 7-19). It cited ABA Defense Function Standard 4.2, which forbids using illegal means to obtain evidence or instructing others to do so, and noted the commentary's concern with oppressive methods such as wiretaps; befriending a witness did not fall within those proscribed activities.

The committee set clear limits. The lawyer must not be a party to deceit or misrepresentation in violation of DR 1-102(A)(4), and the investigator must not offer any improper inducement to persuade the witness to change prior testimony (EC 7-28; DR 7-109(C)). If the witness asks whom the investigator represents, the investigator should disclose the lawyer-principal.

Currency note

This opinion was issued in 1975, before New York replaced the Code of Professional Responsibility with the Rules of Professional Conduct in 2009 (respect for the rights of third persons is now in Rule 4.4, fairness to the opposing party and witnesses in Rule 3.4, and the bar on deceit in Rule 8.4). Subsequent rule amendments or later opinions may have changed the analysis. Treat this page as historical context, not current guidance. Verify against current rules before relying on any specific rule, deadline, or requirement mentioned here.

Common questions

Q: Can defense counsel investigate a prosecution witness after the trial is over?

A: Under this opinion, yes. The committee said interviewing an adverse witness after trial to bring out the truth is not improper, extending the pre-trial interviewing principle of N.Y. State 245 (1972).

Q: Does using a private investigator to befriend the witness cross a line?

A: Per the opinion, not by itself. Befriending the witness is not an oppressive or illegal method, but the lawyer must avoid deceit (DR 1-102(A)(4)) and any improper inducement to change testimony (DR 7-109(C)).

Q: Must the investigator say who he works for?

A: If the witness asks, yes. The committee said the investigator should disclose his lawyer-principal.

Background and rules framework

The opinion applies Canons 6 and 7 of the then-current New York Code, EC 7-19, 7-26, and 7-28, DR 1-102(A)(4), and DR 7-109(C), along with ABA Defense Function Standard 4.2. The current analogues are Rule 4.4 (respect for third persons' rights), Rule 3.4 (fairness to opposing party and counsel, including witnesses), and Rule 8.4 (misconduct involving dishonesty or deceit).

Citations and references

Rules of Professional Conduct:

  • MR 4.4 (respect for rights of third persons)
  • MR 3.4 (fairness to opposing party and counsel)
  • MR 8.4 (misconduct; dishonesty, deceit)
  • NY Canon 6; Canon 7; EC 7-19, EC 7-26, EC 7-28; DR 1-102(A)(4); DR 7-109(C)

Other opinions cited:

  • N.Y. State 245 (1972): interviewing a prosecution witness before trial is proper
  • ABA Inf. 581 (1962): investigator should disclose his principal if asked

See also

Source

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