Often times it is necessary, in the right type of case, to contact the victim/witness simply to develop a relationship with them and obtain their version of events. In some cases where the evidence of guilt of the client is overwhelming it may be wise to make amends on your client’s behalf. In some instances an offer to pay restitution immediately may have a positive effect on your client’s case. (An offer to pay restitution or an apology, even through an attorney, may be used as an admission of guilt in some instances).
Although there is no ethical rule in Florida that disallows an attorney from contacting a witness outside of the prosecutors presence in a criminal case it is a good idea if an attorney contacts such a witness that there be a witness to his or her conversation with the complaining witness. This is not only because if the witness were to say something inconsistent later, the other person could testify to the inconsistent statement of the complaining witness but also to protect the attorney from any claim of improper influencing by the person being interviewed. The American Bar Association Project on Standards for Criminal Justice expressly charges defense counsel to have a third party present at a witness interview or the defense attorny runs the risk of forgoing proper impeachments should that witness change their testimoney at a later hearing: “Unless the lawyer for the accused is prepared to forego impeachment of a witness by the lawyer’s own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case inorder to present his impeaching testimony, the lawyer should avoid interviewing a prospective witness except in the presence of a third person.” ABA Project on Standards for Criminal Justice, Standards Relating to the Prosecution Function and Defense Function. A 7- 4.3(d) (Approved Draft 1971).
This contact with the complaining witness can be extremely helpful in the right case. In a death penalty I had several years ago in Pensacola, I had developed a non-adversarial relationship with the father of the victim by the time the case went to trial. By getting to know him and what he had gone through in losing his daughter, I was better able to understand his pain and see things through his eyes. This changed how I perceived of the case in a way that was beneficial to my client. The same thing occurred on a recent very serious aggravated assault with a firearm. I had repeated very cordial contacts with the victims and I was the primary person giving them information about what was going on procedurally with the case. Both cases had very successful outcomes for the client.
Generally, the defense attorney has the opportunity to have much more contact with complaining witnesses than do busy prosecutors. In fact, new, generally non-lawyer specialists in criminal cases have come about called “Mitigation Specialists.” I do not know of anyone in Pensacola who is actually a mitigation specialist; however, in certain cases I have hired people from other states to come to Florida to work. There are people who specialize in mitigation in Florida as well. These are people who develop relationships with victims, witnesses and obtain information that mitigates against harsh punishment in cases. A mitigation specialist is not necessary in most cases; in most cases the attorney and his or her staff possibly along with an investigator can develop these relationships that will ultimately make it more likely to resolve the client’s case more favorably and also make the victim’s experience with the criminal justice system more positive and less threatening resulting in both a benefit to the client and the victim/witness.