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Witness Case Analysis

Even though the court held in dicta that witnesses have no right to be notified that an attorney wishes to see them (and given Moran, there is no reason to think the court would hold otherwise if the issue were squarely presented), some of the issues discussed in this case are likely to return to the court.

The opinion virtually invites First Defense, or some other party, to refile this action, but to do so in the name of a witness or a class of witnesses.

On three separate occasions, the court stated that the remedy for violating witness rights is to award damages or some other remedy to the witnesses.

The district court effectively found, and the Seventh Circuit in no way questioned, that the Chicago Police Department has a practice of running roughshod over the rights of cooperating witnesses.

The findings of the district court in this case were, "the police lock witnesses into Spartan rooms, sometimes holding them overnight against their will – and rarely informing the witnesses that they re free to leave."

The district court also suggested, "police ‘invite’ to the station persons they suspect of crime but lack the evidence to charge with offenses, ask these persons for information, and keep them cooped up because they, not being formally in custody, do not receive either Miranda warnings or direct notice that they are free to leave. Some of these persons know that they can leave but will be too timorous, or cowed by authority, to invoke this right; others may think themselves to be in custody (and behave as if they were) even though the police would honor a demand for liberty."

While it may not violate witnesses’ rights not to tell them that counsel is available for them, holding them in de facto custody without Miranda warnings, and discouraging spontaneous and unambiguous requests for counsel certainly does.

If a subsequent suit against Chicago, filed in the name of witnesses, were to result in damages and an injunction against such practices, police and city attorneys in Wisconsin would have little choice but to take notice and evaluate their own policies.

Just last year, the Wisconsin Supreme Court considered a case involving the violation of a witness’ constitutional rights, State v. Samuel, 2002 WI 34, 252 Wis.2d 26, 643 N.W.2d 423.

In Samuel, the defendant was charged with a number of offenses arising from his sexual encounters with an underage girl. The girl gave a number of statements to police incriminating Samuel, but denied those statements at trial.

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Seventh Circuit Court of Appeals

Related Article

Attorneys have no right
to consult with witnesses

The State sought to introduce the earlier statements, and Samuel sought to exclude them, arguing that the statements were taken in violation of the girl’s Fifth Amendment rights.

The Supreme Court held that the statements were properly admitted, even if they were taken in violation of the girl’s right to counsel. Only if the police misconduct was so egregious as to produce witness statements that were unreliable as a matter of law, would suppression be an appropriate remedy, the court concluded. Samuel, 252 Wis.2d at 32.

As a final note, all young and inexperienced defense attorneys should pay special heed to the paragraph discussing the retention of counsel by "friends" of the witness.

The court stated, "professed ‘friends’ could be the very persons under investigation. … [A]ttorneys acting in the best of faith may enable the ‘friend’ to learn that a particular person has provided information to the police."

Young attorneys, acting in good faith, but eager for new business, can easily find themselves in the dangerous situation recognized by the court. They need to be aware so they realize it when it
happens, and the need to extricate themselves from that situation.

– David Ziemer

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David Ziemer can be reached by email.

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