Can a prosecutor pursue cross-warrants where the same person is both a Commonwealth witness and a defendant, and how may the prosecutor talk to that person?

Plain-English summary

A dispute and alleged fight among four women produced cross-warrants in which several co-defendants were simultaneously victims and defendants. The inquiry asked whether a Commonwealth's Attorney could or should prosecute cross-warrants where a victim/witness the Commonwealth would call is also a defendant the Commonwealth would prosecute.

The committee first concluded that no attorney-client relationship exists between the prosecutor and either the victim/witness or the defendant, so the conflict-of-interest rules did not apply. It identified the governing rules as DR 8-102(A)(1) (a prosecutor shall not prosecute a charge known to lack probable cause), DR 8-102(A)(2) (a prosecutor shall not induce an unrepresented defendant to surrender important procedural rights), DR 7-103(A)(1) (no communication with a represented adverse party without that lawyer's consent unless authorized by law), and DR 7-103(A)(2) and (B) (a lawyer dealing with an unrepresented person must not give advice or imply disinterest). It also noted the prosecutor's broad statutory discretion over Class 1, 2, and 3 misdemeanors under Va. Code § 15.1-8.1(B).

The committee concluded that if the prosecutor believes each cross-warrant is supported by probable cause, he may ethically prosecute each, even though he will alternately support and attack the individual's credibility, because he owes no duty of loyalty to the victim/witness/defendant. It cautioned that the defendants' constitutional rights, including the privilege against self-incrimination, may bear on the decision to prosecute. Where the victim/witness/defendant is represented, any communication between the prosecutor and that person is improper under DR 7-103(A)(1) absent the defense attorney's prior consent; where that person is unrepresented, the prosecutor must affirmatively inform the defendant that the prosecutor's interests are adverse and must guard against inducing the surrender of procedural rights under DR 8-102(A)(2). Whether the prosecutor was required to prosecute was a factual question beyond the committee's purview.

Currency note

This opinion was issued in 1991, under Virginia's former Code of Professional Responsibility (the disciplinary rules it cites), before the Virginia State Bar's adoption of the Rules of Professional Conduct effective January 1, 2000. A prosecutor's special responsibilities are now in Virginia Rule 3.8, communication with represented persons in Rule 4.2, and dealings with unrepresented persons in Rule 4.3. 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 a prosecutor pursue cross-warrants where one person is both a witness and a defendant?

A: Under this 1991 opinion, yes, if the prosecutor believes each cross-warrant is supported by probable cause. The committee said the prosecutor owes no duty of loyalty to a victim/witness/defendant, so prosecuting each warrant despite alternately supporting and attacking that person's credibility is not improper.

Q: Do conflict-of-interest rules apply to the prosecutor here?

A: No. The committee concluded no attorney-client relationship exists between the prosecutor and either the victim/witness or the defendant, so the conflict-of-interest provisions are inapplicable.

Q: How may the prosecutor communicate with a co-defendant who is also a witness?

A: If that person is represented, the prosecutor may not communicate without the defense attorney's prior consent under DR 7-103(A)(1). If unrepresented, the prosecutor must affirmatively tell the person that the prosecutor's interests are adverse and must not induce surrender of important procedural rights under DR 8-102(A)(2).

Background and rules framework

The opinion interpreted former Virginia DR 8-102(A)(1) and (A)(2) (prosecutor's duties on probable cause and procedural rights), DR 7-103(A)(1) (communication with represented adverse parties), and DR 7-103(A)(2) and (B) (advising unrepresented persons), and noted the prosecutor's statutory misdemeanor discretion. These map to Virginia Rule 3.8 (prosecutor), Rule 4.2 (represented persons), and Rule 4.3 (unrepresented persons) today.

Citations and references

Rules of Professional Conduct:

• Former Virginia DR 8-102(A)(1), DR 8-102(A)(2), DR 7-103(A)(1), DR 7-103(A)(2), DR 7-103(B) (Code of Professional Responsibility)
• ABA Model Rule 3.8 (special responsibilities of a prosecutor); Model Rule 4.2 (represented persons); Model Rule 4.3 (unrepresented persons)

Statutes:

• Va. Code § 15.1-8.1(B) (Commonwealth's Attorney discretion over misdemeanors)

Other opinions cited:

• Virginia LE Op. 1281: improper communication with a represented party without counsel's consent.

See also

• VA LEO 1426: Defending the Victim and the Accused
• VA LEO 1741: Prosecutors Advising Witnesses
• VA LEO 1862: Prosecutor Brady & Plea Disclosure
• VA LEO 1755: Threatening Charges to Stop Contact

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1415.pdf

Original opinion text

Reproduced from the official source for research purposes. The linked source is authoritative.

Committee Opinion
June 13, 1991
LEGAL ETHICS OPINION 1415

COMMONWEALTH'S ATTORNEY —
COMMUNICATION WITH ADVERSE
PARTIES — CRIMINAL LAW:
PROSECUTING CROSS-WARRANTS
WHEN THE VICTIM/WITNESS CALLED
BY THE COMMONWEALTH IS ALSO A
DEFENDANT TO BE PROSECUTED BY
THE COMMONWEALTH.

You have presented a hypothetical situation in which there is a dispute and alleged fight
involving four women, three of whom are involved with crosswarrants. Co-defendants #1
and #2 are both victims and defendants. Codefendants #2 and #3 are both victims and
defendants.
You have asked the Committee to opine whether, under the facts of the inquiry, a
Commonwealth's Attorney can or should prosecute a cross-warrant situation where the
victim/witness called by the Commonwealth is also a defendant to be prosecuted by the
Commonwealth.
The Committee believes that no attorney-client relationship exists either between the
victim/witness and the prosecutor or between the defendant and the prosecutor. Thus, the
Committee further believes that the ethical provisions related to conflicts of interest are
inapplicable to the circumstances you describe.
The Committee is of the opinion, however, that the applicable disciplinary rules related
to your inquiry are DR:8-102(A)(1), which states that a prosecutor in criminal litigation
shall refrain from prosecuting a charge that the prosecutor knows is not supported by
probable cause; DR:8-102(A)(2), which precludes a public prosecutor from inducing an
unrepresented defendant to surrender important procedural rights; DR:7-103(A)(1),
which precludes a lawyer from communicating with a represented adverse party in that
matter without the prior consent of the lawyer representing the party or unless he is
authorized by law to so communicate; and DR:7-103(A)(2) and (B), which require an
attorney who is dealing with an unrepresented individual to refrain from giving advice to
that person and from stating or implying that the attorney is disinterested in the matter at
hand.
In addition to the applicable ethical provisions, the Committee directs your attention to
the Commonwealth's Attorneys' statutory powers which afford a fair amount of discretion
in the prosecution of Class 1, 2, and 3 misdemeanors. (§ 15.1-8.1(B), Code of Virginia.)
Thus, assuming the matters in question constitute misdemeanor charges, the decision to
prosecute appears to be within the broad discretionary powers granted the
Commonwealth's Attorney by statute and the Code of Professional Responsibility.
The Committee has earlier opined that where an individual was a defendant in one
matter, represented by an attorney, and was simultaneously assisting police in other drug
investigations which resulted in charges against a second defendant, it was improper for

Committee Opinion
June 13, 1991
the second defendant's attorney to communicate with the first defendant without having
first received consent from the first defendant's attorney. See LE Op. 1281.
In the facts you posit, the Committee is of the opinion that, if the Commonwealth's
Attorney believes that each cross-warrant is supported by probable cause, he can
ethically prosecute each despite the likelihood that he will alternately be supporting and
attacking the individual's credibility, since he owes no duty of loyalty to the
victim/witness/defendant. Nevertheless, the Committee cautions that issues related to the
defendants' constitutional rights may be pertinent to the prosecutor's decision to prosecute
if the individual's testimony as a victim/witness would impermissibly infringe upon her
constitutional protection against self-incrimination.
The Committee opines that, where the victim/witness/defendant is represented by
counsel, any communication conducted between the prosecutor and the victim/witness
who is a defendant in a cross-warrant would be improper and violative of DR:7-103(A)(1) unless the prosecutor had received prior consent from the individual's defense
attorney. Where the witness is also an unrepresented defendant in a cross-warrant, the
Committee is of the opinion that the prosecutor must affirmatively inform the defendant
that the prosecutor's interests in that matter are adverse to the defendant's. Furthermore,
the Committee cautions that the prosecutor must constantly guard against any violation of
DR:8-102(A)(2) which prohibits a prosecutor from inducing an unrepresented defendant
to surrender important procedural rights in the cross-warrant.
The factual assessment required in order to determine whether or not the
Commonwealth's Attorney is required to prosecute the cross-warrants you have described
is beyond the purview of this Committee.
Committee Opinion
June 13, 1991