Article by Abraham Abramovsky
During the course of their careers most defense lawyers will encounter the "turncoat" witness. The following scenario is illustrative of the problem. Smith is indicted for murder. Jones, a witness to the homicide, either contacts or is approached by Darrow, Smith's attorney, to discuss the case. During the course of the conversation, Jones, although unwilling to give a signed statement, unequivocally absolves Smith of the murder. Prior to Smith's trial, however, Jones is indicted for several narcotics sales. At Smith's trial, Jones not only declines to testify on behalf of the defendant, but becomes the prosecution's "star" witness against him. On cross-examination, Jones steadfastly denies making any statements to defense counsel absolving the defendant.
While the underlying reasons for the disavowal vary from self-interest to pressure from the prosecution, the result is often the same: the defense is unable to meaningfully impeach the "turncoat" witness. To counteract this situation, defense lawyers have been tempted to record and thereby preserve these statements for cross-examination. Although this practice is clearly legal under federal law, and is sanctioned by the majority of states, bar association grievance committees throughout the country have concluded that its utilization is unethical. As a result, a defense attorney often is faced with a Hobson's choice. On the one hand, he must represent his client zealously within the bounds of the law. In those states where one-party consensual recording is legal, its product, the taped statement, is clearly admissible. Even where one-party consent recording is prohibited by state law, recent Supreme Court decisions indicate that illegally obtained evidence may be admissible for impeachment purposes. In fact, the use of the recorded statement at trial may constitute the difference between a guilty verdict and an acquittal. Thus, to comply with the requirement of zealous representation, the lawyer should record the witness' statement. By surreptitiously taping a witness, however, the attorney subjects himself to possible disciplinary proceedings.
It is the thesis of this article that surreptitious recording of witnesses by criminal defense lawyers is ethical when the purpose of the recording is to provide a means of impeachment should a witness disavow his prior favorable statements at trial. Section I discusses the possible benefits to defense attorneys and their clients resulting from surreptitious recording of potentially adverse witnesses. Section II examines federal case and statutory law authorizing one-party consensual recording. Section III analyzes the statutory law of the various states, concluding that while some states follow federal law in authorizing one-party consensual recording, others are more restrictive than federal law. Some states as yet have not taken a position on the matter. Section IV argues that to the extent state statutes prohibit one-party consensual recording, such statutes are vitiated by recent Supreme Court cases emphasizing the importance of impeachment in furthering the quest for truth at a criminal trial—even if the impeachment evidence is obtained illegally.
In Section V, the current position of ethics committees on surreptitious recording by attorneys is analyzed. Many state ethics committees have opined that surreptitious recording by defense attorneys is unethical either as a result of a state law prohibition or, even in the absence of legal prohibition, as a result of stricter requirements placed upon defense attorneys. These states thus present the defense attorney with a Hobson's choice of unethical activity on the one hand, and failure to present important impeachment evidence on the other. Section VI critically considers the rationales relied upon by ethics committees in prohibiting surreptitious recording by defense attorneys.
Section VII analyzes whether, in light of the ethical prohibitions, a defense attorney has reasonably effective alternatives to surreptitious recording. It is concluded that surreptitious recording is an extremely effective tool for the defense attorney and his client, and that no alternative methods of impeachment are as effective. Section VIII weighs the decided advantages of surreptitious recording against the possible adverse effects to the trial process and to potential witnesses, finding that the benefits to the defendant and to the fact-finding process in general far outweigh any anticipated adverse effect.
Finally, Section IX explores whether the Hobson's choice currently faced by attorneys, in states whose ethics committees have prohibited surreptitious recording, will be alleviated by the passage of the Proposed Model Rules of Professional Conduct. The Proposed Model Rules do not specifically address the problem, thus leaving defense attorneys in a quandary as to how far they can go to protect the interests of their client.
About the Author
Abraham Abramovsky. Professor of Law, Fordham University School of Law. B.A. 1967, Queens College, New York; J.D. 1970, State University of New York at Buffalo; LL.M. 1971, J.S.D. 1976, Columbia University School of Law.
Citation
57 Tul. L. Rev. 1 (1982)