State v. Martinez, just approved for publication, offers some interesting lessons for criminal defense attorneys who seek to interview cooperating witnesses. It offers even more interesting lessons for the prosecutors who seek to surreptitiously record those interviews.
Defense counsel are entitled to ask for an interview with any state’s witness. This witness advised prosecutors that the defense attorney would probably offer him money, presumably to change his story. Based on that allegation alone, prosecutors surreptitiously recorded the interview by wiring the witness.
The defense attorney did not offer the witness money; nor did he commit any other ethical breach.
The State revealed the recording just 3 days before trial. The trial judge denied a motion to dismiss and / or to bar the cooperating witness from testifying, but opined that the secret taping “should send a chill down the spine of any criminal defense attorney or prosecutor [who] has ever interviewed a witness”.
It remains to be seen whether the defense will gain any legal traction for this client from opposing and exposing the state’s conduct. The Appellate Division just affirmed the trial judge’s decision to affirm the denial of the motion to dismiss, but remanded for a plenary hearing on the effects of the taping, specifically whether the practice led to a revelation of any defense strategy. The opinion gives a thorough historical analysis of the actions taken by prosecutors when investigating defense counsel. Good reading.