Muldoon, Getz & Reston

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Issues In NY Criminal Law--Vol. 4, #14©

Issue: Representing a witness

The attorney's usual role in a criminal case is representing the People or the defendant. At times, though, a witness may seek separate counsel. Depending on the circumstance, the witness's interests may be allied with the prosecution, the defense, or neither. In many of these situations, ethical issues arise. There are several common fact patterns:

  • The witness is the complainant, who seeks to bring a civil suit against the defendant; or a "parallel proceeding" is already pending.
  • The complainant may no longer want to testify, and to end the criminal case instead.
  • The witness has received a subpoena or subpoena duces tecum, either for grand jury or trial.
  • The witness was not a crime victim, and has no direct relationship to the charge.
  • The c/w may be threatened by an apparently overzealous prosecutor, or by an intimidating defendant.
  • The witness may wish to assert a "privilege" – for example, a spouse or social worker, who has been subpoenaed.
  • A material witness proceeding has been brought.

A witness has no duty to voluntarily meet or speak with a prosecutor or defense attorney who is preparing for trial. The witness's legal obligation, if served with a subpoena, is to testify. A witness may speak with a police officer or lawyer, but is not required to do so. Handling a Criminal Case in New York, 2002-2003 edition, § 1:75.

Neither prosecutor nor defense attorney should advise a witness to not speak with the opposing attorney. Once a witness is represented, the other attorneys should not directly communicate with the witness. 22 NYCRR § 1200.35(a)(1); Handling § 1:75; "Rights of Victims and Witnesses in Criminal Cases Are Receiving Greater Emphasis," NYS Bar Journal, December 1998, p. 44.

Additionally, neither defense counsel nor prosecutor should give legal advice to a witness who has a separate legal interest at variance with the parties. While an attorney can speak with an unrepresented witness, under the Code of Professional Responsibility, the attorney should advise the client to get separate counsel. 22 NYCRR § 1200.35; Handling § 1:77.

Terminating a criminal charge
The entity with the authority to initiate or to end a criminal case is the district attorney's office. Handling §§ 1:7, 1:10, 3:6. In representing a complainant, it may be important to explain this, as the person may feel that, being the injured party, he or she can decide whether to pursue or drop a charge. The complaining witness may have personal reasons for not pursuing the charge -- the witness's own background may be revealed, or the person may experience embarrassment or worse from cross-examination. While the prosecutor determines whether to pursue a case, there are instances where the police or prosecution mislead a complaining witness. The witness's attorney may need to act as a buffer, dealing with the prosecutor on an equal footing, to resist any overreaching or threats.

Proper service
A witness who is served with a subpoena has an obligation to answer that subpoena. However, the witness's attorney may need to determine whether service was properly effectuated. With a grand jury subpoena, for example, client's counsel should determine whether the subpoena is returnable while the grand jury was in session. Handling § 6:16.

In connection with proper service, it should be noted that in a criminal case, service of process on a Sunday is valid. Gen Bus L § 11.

An attorney clearly may not advise a witness to hide or leave the jurisdiction to be unavailable as a witness. 22 NYCRR § 1200.40(b).

A person receiving a subpoena may seek to quash, modify it. CPLR 2304. The prosecution may not move to quash a witness's subpoena, but may seek a protective order. Handling § 8:166 et seq.

The person may seek to avoid testifying because there is a privilege to assert – spousal, doctor - patient, and the like. See CPLR article 45; Handling § 18:148 et seq. However, an order is not required to compel a witness, who may have a privilege, to testify. See Matter of Beach v Shanley, 62 NY2d 241, 476 NYS2d 765 (1984). Cf. In re Grand Jury Investigation in New York County, 98 NY2d 525 (2002).

An expert witness cannot be compelled to testify to matters connected to his experience and judgment, but can be required to testify regarding observations. Handling § 8:169.

Grand jury proceedings
At grand jury, a witness has the right to counsel, and if indigent, to assigned counsel. CPL 190.52. However, the attorney normally may not accompany the witness into the grand jury room. Handling § 6:18. Only the where the witness has signed a waiver of immunity may the person's attorney be present in the grand jury room during testimony. CPL 190.52(1). The attorney's role in the grand jury room is passive; the attorney may advise the witness, but not otherwise take part.

Whether or not the attorney is present in the grand jury room, the witness has the right to leave the grand jury room -- repeatedly, if necessary -- to confer with counsel.

If the prosecution subpoenas a witness to the grand jury, that person receives immunity; if the grand jury issues the subpoena, the prosecutor may demand that the witness sign a waiver of immunity before being sworn. CPL 190.50 (3), (4). Handling § 6:15 et seq.

Right to counsel
Where a witness's testimony may be self-incriminating, the court should consider appointing an attorney. Handling §§ 2:5, 2:23. During the witness's testimony, the attorney might stand next to the client, counseling when it is appropriate or inappropriate to answer a question.

Advised by counsel, the witness may invoke the right against self-incrimination. However, a witness who unreasonably refuses to testify may be required to establish a factual basis for refusing, and the trial judge may direct the witness to testify. People v Jones, 192 Misc2d 649, 747 NYS2d 308 (Sup Ct 2002).

Material witness proceeding
Where the witness may be recalcitrant -- i.e., not amenable to a subpoena --either prosecutor or defense counsel may bring a "material witness proceeding." CPL Article 620; Handling § 18:182 et seq. The proposed material witness has the right to counsel. CPL 620.40; see People v Siegel, 87 NY2d 536, 640 NYS2d 831 (1995).

The witness's attorney may need to explain to the client about issues such as perjury and contempt. The role of a witness's attorney should be to assess the client's intentions, communicate the client's legal obligations to comply, negotiate where possible, and represent the client vis-a-vis the other attorneys and judge.

Of all means words
This tongue doth know
The meanest is
"I told you so."
-- Katherine S. White

Bachert brief
A coram nobis proceeding in intermediate state appellate court alleging ineffective assistance of appellate counsel. Under new legislation, an intermediate appellate court order regarding ineffective assistance of appellate counsel is reviewable by the Court of Appeals, if leave to appeal is granted. CPL 450.90(1).
People v Bachert, 69 NY2d 593, 516 NYS2d 623 (1987); Handling § 23:100.


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