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I witnessed (heard) an alleged crime a long while back and was recorded as a witness by the police. Recently, I received an email from the defendant's lawyer requesting contact information and asking me to answer some questions.

Do I have to respond? Does the report I gave to the police not qualify as all the information the lawyer would need? Is this just more helpful information for the lawyer?

I understand that I could be subpoenaed as a witness if the case goes to trial, but do I need to respond to lawyers before then?

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    I would offer that the lawyer may also be looking for you to say something different from what you said to the police since it has been "a long while back" - and then label you as an unreliable witness. I would suggest reviewing your previous statement when answering the questions.
    – CramerTV
    Commented Sep 10, 2020 at 20:05
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    @CramerTV I have no way that I know of to review my previous statement. It's just what I told the detective that showed up immediately after the event. As such, I feel it would be most honest to just say I can no longer remember the specifics of the event.
    – Heathcliff
    Commented Sep 10, 2020 at 20:51
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    If they accuse you of being unreliable or try to compare what you said then and now, I suggest you just say, "If there are any discrepancies, then you should believe my original statement - my memory was fresh then." Note: I'm not a lawyer but I was once a witness and I used that argument when I was challenged.
    – chasly - supports Monica
    Commented Sep 10, 2020 at 21:46
  • By coincidence, in the last few minutes, I have been watching a trial where the defence lawyer is challenging an expert witness on his previous testimony. The video is here courttv.com/title/5-ca-v-broderick-dr-christopher-swalwell and the time is about 0:42:00 - This is still an issue 20 minutes later when the prosecution lawyer has his turn and steps in to rescue the witness.
    – chasly - supports Monica
    Commented Sep 10, 2020 at 23:24
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    Ask the detective for a copy of it. Feel free to say why.
    – Harper - Reinstate Monica
    Commented Sep 12, 2020 at 18:17

3 Answers 3

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You don’t have to talk to the lawyer

However, if you don’t it’s very likely you will be subpoenaed. Then you’ll have to talk to them at a time and place of their choosing rather one that’s mutually agreed.

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Responding to the email may deflect any further action by the defense lawyer - for example if you ignore it they may decide that you are a "hostile witness" and act accordingly.

On the other hand, if the alleged crime occurred a long time ago and you made a statement to the police as part of their initial investigation, it would be perfectly reasonable to make a reply such as

"I made a police report about this matter on [date]" (and add "at [location]", if the incident happened at a different place from where you lived either then or now), "and I do not have any more information to add to it."

I don't know the details of US legal procedure, but in the UK, if you make a formal witness statement to the police you do not get a personal copy of that statement, so you don't have any record of exactly what information you gave at the time. Most likely, the defense lawyer is looking for you to make some contradiction of what was in the original statement, which can then be used to discredit it by cross-examining you in court.

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The Sixth Amendment protects a criminal defendant's right to a fair trial against government interference, but it does not protect against interference from private actors such as yourself.

If you'd like to thwart the defense lawyer as they try to understand what happened and ensure their client gets a fair trial, you have that right under the First Amendment, at least until you receive a subpoena, as you noted.

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    Yes, but only in the same way that watching Pulp Fiction tells you what's in the briefcase. You've been given information, but it's never enough and always raises more questions than it answers.
    – bdb484
    Commented Sep 10, 2020 at 6:42
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    In an adversarial legal system (such as the USA) the job of a defense lawyer is not to get his/her client a fair trial. It is to get his/her client acquitted. Discrediting a witness by any means possible is fair game.
    – alephzero
    Commented Sep 10, 2020 at 18:51
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    @alephzero Quite wrong. The lawyer's job includes both. Discrediting a witness "by any means possible" is definitely not considered fair game, and can be grounds for disciplinary proceedings.
    – bdb484
    Commented Sep 10, 2020 at 20:08
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    @bdb484: The basic principle is that both sides are supposed to have access to anything a witness says, and both sides are supposed to be aware of anything that has been said to witnesses that might influence their testimony. The question of whether defense counsel would have to report unfavorable things they find out in private meetings with witnesses generally won't come up if defense counsel refrain from privately meeting witnesses in the first place. My point about the duty to report was to suggest one of the reasons why defense counsel would question witnesses in depositions rather...
    – supercat
    Commented Sep 10, 2020 at 22:03
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    @alephzero, you are almost correct, but it would be more correct to say "get his/her client acquitted by any means possible that conforms with the law and professional ethics". This would exclude, for example, witness tampering or destroying evidence.
    – JoelFan
    Commented Sep 11, 2020 at 0:31

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