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Can a Defendant Talk to a Witness? Legal Risks & Alternatives

A defendant can talk to a witness, but there are some important considerations to keep in mind. It’s generally advisable to consult with an attorney before speaking to a witness, as there are legal implications to such interactions.
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Collen Clark Published by Collen Clark

Should a Defendant Talk to a Witness?

In criminal court proceedings, it’s generally advised that defendants refrain from contacting witnesses for several reasons:

  • Judicial Orders: Judges often prohibit defendants from contacting witnesses, and violating such orders can lead to legal consequences.
  • Witness Intimidation: Speaking with a witness could be construed as attempting to intimidate or influence them, which is a criminal offense.
  • Legal Implications: Any statements made by the defendant to a third party, including witnesses, could be used against them in court.

According to SCLG, in many jurisdictions, intimidating a witness includes actions like dissuading, intimidating, or tampering with the witness. This offense can result in separate charges for witness intimidation or tampering, in addition to the original charges the defendant faces [1].

Note that there are times when a witness is a defendant’s spouse, family member, friend, or co-worker. In these cases, a defendant can still come into contact with the witness, but the defendant should avoid discussing any details of the case

Can a Defendant Question a Witness?

As stated by the Law Cornell, the Sixth Amendment of the United States Constitution guarantees the right of a person accused of a crime to confront the witnesses against them in a criminal action. This right includes being present at the trial, as guaranteed by Federal Rules of Criminal Procedure Rule 43, and the right to cross-examine the prosecution’s witnesses [2].

The Confrontation Clause, part of the Sixth Amendment, ensures that “in all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him

This clause aims to prevent the conviction of a defendant based solely on written evidence, such as depositions or ex parte affidavits, without the opportunity for the defendant to confront their accusers and challenge their honesty and truthfulness before the jury.

Can Witnesses Talk to Each Other During Trial?

According to Avvo, in most instances, attorneys will request the separation of witnesses [3]. This request aims to prevent witnesses from hearing prior testimony, ensuring that it does not influence their own testimony.

If a separation was requested then the Judge should be advising each witness that they are not to discuss their testimony until the case is over. If you overheard witnesses discussing their testimony, you should have your attorney notify the judge and opposing counsel in chambers.

Can Plaintiff and Defense Call the Same Witness?

In legal proceedings, a lawyer has the right to call any relevant person as a witness, even if they are on the opposing side. This includes the plaintiff’s lawyer or prosecutor calling the defendant to testify.

When the defendant is your witness, you have fewer rights. For example, you cannot impeach their testimony since you can’t impeach your own witness. This can be crucial, as often the case hinges on impeaching the defendant on cross-examination. In this scenario, the defense attorney can question the witness on cross-examination without allowing you to cross-examine, since the witness is technically yours.

What is Intimidation of a Witness?

Under California Penal Code Section 136.1 PC, witness intimidation occurs when an individual willfully and maliciously tries to prevent or dissuade a witness or victim from:

  • Reporting a crime to law enforcement;
  • Testifying at a hearing or trial; or
  • Aiding in an investigation or an arrest.

It’s important to note that the defendant does not need to actually prevent the witness from testifying, nor does the witness need to be injured if they were threatened. Simply attempting to stop the witness from testifying is enough to constitute a crime.

To secure a conviction under Penal Code 136.1 PC, the prosecutor must prove several elements of the crime, as outlined in California Criminal Jury Instructions 2622.

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