Why An Attorney Can Be Jailed for Speaking with a Victim
The Louisiana State House, but not yet the Senate, recently passed a bill that would allow the “victim” or “family of the victim” to refuse speaking with the attorney for the defendant or the attorney’s employee. Further, the attorney or attorney’s employee must “clearly and unambiguously notify” the victim or family member that they are representing the defendant and let them know that they may refuse the interview. This also applies to a victim or family member who is a minor, in which case the parent or guardian must be notified and may refuse on the minor’s behalf. If the defense attorney or their investigator initiate an interview without notice, it is a jailable crime of contempt of court. This is done under the guise of victim’s rights.
Speaking to a Victim in Arizona
Arizona has its own way of preventing contact between the victim, but not the victim’s family, and the defense attorney. Arizona Revised Statutes § 13-4433, requires the defense attorney to go through the prosecutor to interview the victim. The prosecutor shall notify the victim of the request for an interview and the right to refuse the interview, which they will likely recommend. The defense lawyer cannot bring this refusal up at trial. If the defense attorney or his agent violate this, the prosecutor can get an order prohibiting this and the use of any evidence obtained. There are two differences between Louisiana and Arizona. Louisiana prohibits interviews with the family also, and makes the interview a crime. These instances do not sound so bad, but the State that is prosecuting is seeking to prove beyond a reasonable doubt that the defendant is guilty and therefore will be sentenced to a fine or prison.
Justifying Limited Attorney/Victim Communication
Our system relies on the ability of both sides to do the factual and legal research necessary to competently try the case. The prosecutor has the police investigate thoroughly, speaking to all the witnesses they wish. This law says that the defense cannot do but part of their job. In many cases victims and their families provide essential evidence casting doubt on the guilt of the defendant. For example, if a wife or girlfriend shoots her spouse or boyfriend after years of physical and mental abuse, who is most likely to know of this? His or her family. But if a defense attorney is precluded from asking them about the prior abuse, how can a proper defense by established.
Implications of this Law
Our court system is what is called the adversary system, in which both sides get to do their best to prove their side. With these laws, one side gets to do their best and the other gets to just sit and take it. If we could rely on police to do a perfect investigation every time, maybe these laws would be okay, but we cannot. Police either because of lack or time or effort or bias or prejudice are unable to do the same investigation as the defense. Police can even lie to defendants and witnesses to get them to say what the police want them to say, and that is legal.
Police are supposed to gather evidence, not manufacture it, but sadly far too many feel they have to “get” the accused and close the case. This is even if there are other leads that need to be followed and other persons that need investigation.
Some might suggest that to be fair, the police, prosecutors and their investigators need to be under the same restrictions, especially if this would include confidential informants. But the system does not need to protect the victim or the victim’s families from being interviewed, as long as they are adults. As for minors, they should have their parents or guardians as protectors. The freedom of an innocent accused is at stake and there is no need to make the changes suggested by the Louisiana State House.