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Potential for Ineffective Assistance of Counsel When Attorneys Interview Witnesses Alone

Many clients, and even attorneys, don’t understand the perils of interviewing potential witnesses without the assistance of an investigator. Even when I explain and encourage client to retain the services of an investigator, many of them forego the use of an investigator for no other reason than to save some money. Unfortunately, not hiring an investigator can end up costing the client much more in the long run, and in some cases, even a conviction.

The recent case of Commonwealth v. Zabek was heard before the Massachusetts Appeals Court and specifically addressed the issue of trial counsel interviewing witnesses on his own and the potential conflict of interest that may arise as a result.

In that case, the defendant was convicted after trial on charges of rape of child and other sexual offenses. In his appeal, the defendant claimed that his trial attorney was ineffective because he had an actual conflict of interest and could not therefore zealously defend him. The lawyer, the defendant argued, had interviewed a witnesses prior to trial without an investigator, which then potentially made the lawyer a potential impeachment witness at trial.

Specifically, because the lawyer interviewed the witness alone and without the use of an investigator, had the witness testified inconsistently at trial, the lawyer would have had an actual conflict against his client because his testimony might be necessary to properly defend his client.

The Appeals Court noted that the Massachusetts Rules of Professional Conduct prohibit an attorney from acting as trial counsel at a trial in which the lawyer is likely to be a necessary witness.

In this case, however, the Appeals Court rejected the defendant’s appellate claims because it turned out that the witness did not ultimately testify inconsistently with what was stated to the lawyer in the pre-trial interview. Additionally, the issue was raised before the trial judge and both the attorney and the defendant conceded that there was no reason to believe that the witness would offer any inconsistent testimony.

Nonetheless, this case is illustrative of the precise circumstances as to why a trial attorney should never interview witnesses on his own. By having another person witness the interview, that other person would then be available and able to be called at trial in the event the witness were to testify inconsistently.

Boston Criminal Lawyer Lefteris K. Travayiakis is available 24/7 for consultation on all Massachusetts Crimes and may be reached at 617-325-9500.