In criminal proceedings, an attorney plays a crucial role in protecting the rights of all parties involved, including witnesses. Under U.S. law, attorneys may serve their function throughout both pretrial stages and court proceedings. They are entitled to represent and defend the interests of suspects, defendants, victims, civil plaintiffs, civil defendants, private prosecutors, and provide legal assistance to witnesses.
Witnesses in criminal cases hold a unique legal status. While they have no direct stake in the outcome of the case, their testimony can significantly impact the establishment of truth. This makes the protection of their rights an essential component of a fair trial. Both U.S. law and international norms mandate the protection of witnesses, yet attorneys often face numerous challenges and limitations in performing their duties effectively.
The Attorney's Role in Witness Protection
The U.S. legal system has expanded the functions of attorneys in criminal cases to ensure the right to defense. According to the Sixth Amendment of the U.S. Constitution, all parties involved in a criminal trial, including witnesses, are entitled to a fair defense. This right extends to ensuring that witnesses have access to legal counsel. Attorneys are allowed to assist witnesses during their testimony and may be present during their questioning by law enforcement or at trial.
A witness in a criminal case is someone who possesses information vital to the investigation. Their testimony may be key in establishing facts, which is why safeguarding their rights and legal interests—including the right to consult an attorney—is a critical aspect of ensuring justice. However, attorneys often encounter various limitations due to the statutory framework governing their powers during the trial.
Challenges Faced by Attorneys
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Limited Powers of the Attorney: A witness's attorney has the right to provide legal consultations in the presence of the prosecutor, ask questions to individuals being interrogated with the prosecutor’s consent, and raise objections regarding the accuracy of the testimony record. However, the law does not specify the precise content or duration of such consultations. This creates uncertainty, hindering the attorney from fully fulfilling their role in protecting the witness.
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Uncertainty in the Attorney's Right to be Present During Witness Testimony: There is a gap in legal provisions regarding an attorney’s right to be present during witness testimony at official court hearings. This becomes particularly problematic when the attorney has already participated in earlier stages of questioning the witness during the investigation. The law does not always contemplate the attorney's role in subsequent judicial proceedings, overlooking the importance of their presence to ensure fairness.
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Violation of Attorney-Client Privilege: In some instances, law enforcement agencies may attempt to exclude the attorney from the process by calling them as a witness at the location of a search. This violates attorney-client privilege and can negatively affect the investigation. This practice warrants immediate attention from legislative authorities.
Proposals for Legislative Improvements
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Expanding the Rights of Attorneys for Witnesses: The powers of attorneys representing witnesses should be clarified and expanded, allowing their participation not only in interrogations but also in other investigative actions such as searches, lineups, and forensic experiments. It is also essential to establish clear standards for legal consultations, addressing both legal and tactical aspects, which should be documented in the case record.
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Regulating Attorneys' Participation in Court Proceedings: New regulations should be introduced to ensure that attorneys have the right to be present during witness testimonies at all stages of the trial, especially when witnesses have already provided testimony during the investigative stage. This would ensure comprehensive protection of witness rights and enhance the quality of justice.
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Establishing Responsibilities for Law Enforcement and Courts: Legislation should mandate the notification of both attorneys and witnesses about their right to participate in the testimony process. It is also crucial to establish accountability for violations of witnesses' rights, including their right to representation by an attorney, and to impose sanctions on those who interfere with an attorney's duties.
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Attorney Disqualification Procedures: A procedure should be developed and adopted for the disqualification of attorneys in cases where a conflict of interest exists, such as when an attorney has represented another party in the same case. This would help prevent situations where an attorney, representing a witness, might influence the investigation to the detriment of other participants in the case.
In practice, many law enforcement agencies and courts fail to consistently uphold the rights of witnesses to legal representation, and attorneys are often unable to fulfill their duties effectively. For example, courts sometimes disregard a witness's desire to have an attorney present, and when attorneys are denied access, it creates significant challenges in protecting the witness’s rights. This undermines trust in the judicial process and threatens the fairness of the outcome.
Addressing these issues requires comprehensive changes in both legislation and judicial practices. Strengthening accountability for interference with attorneys’ duties, expanding the powers of attorneys representing witnesses, improving legal awareness, and establishing effective mechanisms for witness protection will ensure attorney independence, fair trials, and the protection of witnesses' rights in criminal cases. This will also contribute to strengthening the rule of law and ensuring justice for all parties involved.
V. Ivanenko, Legal Advocate and Human Rights Defender