Can a prosecutor warn the Commonwealth's witnesses about deceptive tactics used by defense investigators without violating the duty not to discourage cooperation with the defense?

Plain-English summary

A prosecutor reported that defense counsel sometimes use private or court-appointed investigators, a few of whom resort to tactics the prosecutor viewed as dishonest when seeking statements from the Commonwealth's witnesses, such as displaying a badge to imply they are police, or claiming they were sent by the judge or work with the prosecution. The prosecutor wanted to warn prosecution witnesses about these tactics, possibly by a letter telling witnesses it is their decision whether to speak with defense investigators, warning about certain tactics, and possibly naming the investigators. The committee was asked whether that advice would comply with Rule 3.8(c).

Rule 3.8(c) provides that a lawyer in a prosecutorial function shall not instruct or encourage a person to withhold information from the defense after a party has been charged. The committee concluded it would not be improper for the prosecutor to inform the Commonwealth's witnesses that they may be contacted by investigators working for the defense and to identify those investigators by name if known. It would also not be improper to tell witnesses they have the right to speak or not speak with a defense investigator.

Beyond that, the committee drew the line at Rule 3.8(c). The prosecutor may not make any remark, including references to the questionable tactics some investigators use, that would explicitly or implicitly instruct or encourage a witness to withhold information from the defense.

Currency note

This opinion was issued in 2000. Virginia's Rule 3.8 may have changed since. Verify against current rules before relying on any specific requirement mentioned here.

In practice

The opinion holds that, under the rules as they stood at the time, a prosecutor may inform the Commonwealth's witnesses that defense investigators may contact them, name those investigators if known, and tell witnesses they may choose whether to speak with them. It also holds that Rule 3.8(c) prohibits the prosecutor from any remark, including warnings about deceptive investigator tactics, that would explicitly or implicitly encourage a witness to withhold information from the defense.

Common questions

Q: Can a prosecutor tell a witness they don't have to talk to a defense investigator?

A: Yes. The committee holds it is not improper to tell prosecution witnesses they have the right to speak or not speak with an investigator working for the defense.

Q: Can the prosecutor warn witnesses that a defense investigator uses deceptive tactics?

A: Only carefully. The committee holds Rule 3.8(c) bars any remark, including references to questionable tactics, that would explicitly or implicitly instruct or encourage the witness to withhold information from the defense.

Q: Can the prosecutor name the defense investigators?

A: Yes. The committee says the prosecutor may identify the investigators by name if known, as part of informing witnesses that they may be contacted.

Background and rules framework

The opinion interprets Rule 3.8(c) (additional responsibilities of a prosecutor; not to instruct or encourage a person to withhold information from the defense after a party has been charged), drawing the line between informing witnesses of their choice to speak and improperly discouraging cooperation with the defense.

Citations and references

Rules of Professional Conduct:

• Virginia Rule 3.8(c) (additional responsibilities of a prosecutor; withholding information from the defense)

See also

• VA LEO 1768: Prosecutor's Jury-Trial Appeal Remark
• VA LEO 1795: Advising Witnesses Not to Cooperate

Source

• Landing page: https://vsb.org/Site/about/rules-regulations/leo-opinions.aspx
• Original PDF: https://www.vsb.org/common/Uploaded%20files/LEOs/1741.pdf

Original opinion text

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

Committee Opinion
April 13, 2000
LEGAL ETHICS OPINION 1741

PROSECUTORS: RULE 3.8(c):
ADVISING WITNESSES;
INVESTIGATIVE TACTICS.

You have presented a hypothetical situation wherein you advise that during the course
of criminal prosecution, defense counsel will sometimes hire a private investigator or will
have access to court-appointed investigators. A few of these investigators resort to tactics
that you perceive to be less than honest in attempting to obtain statements from the
Commonwealth's witnesses. Examples you provide include defense investigators
displaying a badge to imply they are police officers, or stating they were sent by the
judge or are working with the prosecution. When working on a case where such an
investigator is involved, the prosecutor would like to inform prosecution witnesses of the
tactics that may be employed by these investigators. The prosecutor has also considered
sending a letter to all witnesses explaining that it is the witnesses’ decision whether or not
they want to speak with defense investigators. The prosecutor also proposes including in
that letter language warning about certain tactics that may be used by the investigators
and possibly naming the investigators.
Under the facts you have presented, you have asked the committee to opine as to the
propriety of the prosecutor advising prosecution witnesses as described above, and
whether this would be in compliance with Rule 3.8(c).
Rule 3.8(c) of the Rules of Professional Conduct states:
Rule 3.8 Additional Responsibilities Of A Prosecutor
A lawyer engaged in a prosecutorial function shall:
(c) not instruct or encourage a person to withhold information from the defense after
a party has been charged with an offense
In the facts you present, the committee believes that it would not be improper to inform
Commonwealth's witnesses that they may be contacted by private investigators working
for the defense, and identify them by name if known to the prosecutor. Also, the
committee believes that it is not improper for a prosecutor to inform his or her witnesses
that they have the right to speak or not speak with an investigator working for the
defense. Beyond that, however, the committee believes that Rule 3.8(c) prohibits the
prosecutor from making any remarks, including the references to the questionable tactics
employed by some investigators, that would explicitly or implicitly instruct or encourage
a witness to withhold information from the defense.
Committee Opinion
April 13, 2000