Rhode Island Criminal Defense Manual by Attorney John E. MacDonald

RHODE ISLAND CRIMINAL DEFENSE
A Practice Manual, 4th Edition
© John E. MacDonald

ETHICAL DILEMMAS AT TRIAL

Witnesses Who May Incriminate Themselves At Trial

R.I. RULES OF PROF'L CONDUCT R. 4.2: Communication with Person Represented by Counsel

In representing a client, a lawyer shall not communicate about the subject of the representation with a party the lawyer knows to be represented by another lawyer in the matter, unless the lawyer has the consent of the other lawyer or is authorized by law to do so.

R.I. RULES OF PROF'L CONDUCT R. 4.3: Dealing with Unrepresented Person

In dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

• Solution: Counsel can have her/his cake and eat most of it too by a creative, but entirely ethical, application of R.I. R. EVID. 804:
•  
• 1. Interview the witness at the pre-trial stage while complying with rules 4.2 & 4.3.
  2. Memorialize the incriminatory information in the form of an oral statement of your investigator or another third party.
  3. Present the witness at trial where he/she asserts his/her Fifth Amendment rights and therefore becomes “unavailable.”
  4. Thereafter, introduce the incriminatory statement of the witness through your investigator or third party as an “admission against penal or pecuniary interest”where it cannot be cross-examined.

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