Brown & Little, P.L.C. » Professionalism, Prosecutors, Trial, Victim's Rights » Trusting Prosecutors

Trusting Prosecutors

In Arizona, victims can choose whether or not to be interviewed by a defendant or his attorney. In pretty much every case, I send the prosecutor a letter asking whether the victim would be willing to submit to an interview. Victims almost never want to speak with me, so I’m forced to trust that the prosecutor actually asked them about consenting to an interview.

I’m not a very trusting person, and I’m especially suspicious when there’s no way to verify what someone tells me. That’s the case with victim interviews. I bet a lot of prosecutors never bother asking victims, but in most instances, I have no way of proving it. I can’t later seek out the victim and find out. That would be a bar complaint waiting to happen. If the matter goes to trial, I don’t normally use my cross-examination time, my first opportunity to question the victim, to find out whether he or she was told I wanted to do an interview. Maybe I should.

I don’t think it’s possible to overstate the advantage the prosecution can gain by preventing defense attorneys from interviewing victims. Most of the time, there are no written statements from victims. You generally have only a vague idea about what they’re going to say. You have no clue how believable they will be. You won’t hear the little inconsistencies in their stories until you get to trial, so it creates a lot of unnecessary pressure. It may be that you end up having little if anything to work with, or the state’s case could unravel altogether. When the only evidence against a defendant is going to be the testimony of victims, it can be extremely difficult to assess the strength of the state’s case prior to trial.

Prosecutors have a lot to gain by not asking victims about doing a defense interview. There’s no good way to make sure a prosecutor hasn’t lied about asking them. I had one case where my client swore the victim moved to Kansas, and the prosecutor kept swearing she had contacted the victim. She kept telling me my client should take the plea because the victim would show up for trial. Trial came around, and there was no victim. Case dismissed. I’m pretty sure that prosecutor was lying to me, and she probably wasn’t the first one. I don’t think I’m being unreasonable by not trusting prosecutors to do something that might ruin their case and that I have no way of showing they didn’t do.

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5 Responses to "Trusting Prosecutors"

  1. […] on Victim InterviewsTrusting ProsecutorsLying Officers on AppealCriminal Defense Trial RecordsWhy Do We Do It?I Will Never Recommend These […]

  2. BFrederick says:

    That is insane. Violation of due process, right to confrontation? Declaratory judgment action?

  3. Andrew Becke says:

    Thinking outside the box here, but is there a way to initiate contact with the victim through a motion to the court, thus requiring the prosecutor to respond in a pleading that the victim doesn’t want to talk? That might enhance their desire to be honest.

  4. Matt Brown says:

    I would love to be able to do that. Unfortunately, in our lovely state, A.R.S. § 13-4433(B) makes it so that “[t]he defendant, the defendant’s attorney or an agent of the defendant shall only initiate contact with the victim through the prosecutor’s office.” I think I’ll have to add South Carolina to the long list of places I’d prefer to practice criminal law…

  5. BFrederick says:

    Don’t ask the prosecutor for permission. We have an obligation to interview the victim in every case if they will talk to us, and it is none of the prosecutor’s business. Take an investigator with you so that you have a witness (for your protection against claims of harassment and for purposes of later impeachment), tell them who you are and who you represent, and ask them if they have a minute to speak with you.

    I’ve been surprised and sometimes shocked by what alleged victims have to say in many cases, and they sometimes turn into our witnesses and not the prosecutor’s. They are just witnesses, prosecutors do not have a claim to them.

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