NCJ Number
99086
Journal
Criminal Law Bulletin Volume: 21 Issue: 4 Dated: (July-August 1985) Pages: 353-367
Date Published
1985
Length
15 pages
Annotation
This paper discusses the substantive and procedural aspects of a defendant's right of pretrial access to prospective prosecution witnesses.
Abstract
The paper first considers the legal foundations of defendant rights to pretrial access to witnesses. The constitutional rights reviewed are those pertaining to due process, right to counsel, and the guarantee of compulsory process. Relevant court decisions applying these rights to defense access to witnesses are analyzed. The paper then examines the prerequisites for a prosecutor's constitutional violation of a defendant's right of pretrial access to a prospective prosecution winess. These prerequisites include (1) the prosecutor's acting without justification in constraining the free choice of the witness to speak with the defendant or defense counsel, (2) the prosecutor's prejudicing the defendant's right to a fair trial by obstructing witness access, and (3) the defendant's having exhausted reasonably available measures for alleviating the interference. Next, American Bar Association (ABA) Standards on the Prosecution and Defense Function are cited, as well as ABA's Model Code of Professional Responsibility, to show ethical considerations that support defense pretrial access to witnesses. The paper concludes with suggested steps for defense counsel in attempting to obtain pretrial access to an apparently reluctant witness. A total of 107 footnotes are provided.