Can I talk to the other side without all the lawyers present?

Trying to reason with an opposing witness or victim, even with all good intentions, can be a very risky move. Let your lawyer do the talking.

Question: My neighbor and I have had a difficult relationship over the years (a boundary dispute, barking dogs, loud parties). Recently, someone vandalized his car and his home security camera shows a shadowy figure that fits my general description. My neighbor called the police, and despite my protestations, they have filed charges. But I did not do it! I feel that I might be able to convince my neighbor that it wasn't me if I could just talk to him alone, no lawyers in the room. Can I do that?

Answer: It's a very risky move.

Communications with Represented Party

In general, a defendant is not prohibited from speaking with a crime “victim.” For example, you are not barred from chatting over the fence with your neighbor (although it seems that such casual pleasantries have not been part of your relationship for quite some time). However, when a defendant in a criminal case considers speaking with the alleged victim of a charged crime, there are serious limitations on the subject and manner of the conversation.

Witness tampering

One risk you run if you talk to your neighbor as you propose is being charged with yet another crime: witness tampering. In most states, it is illegal to attempt to alter a witness's or victim's testimony by offering money or anything of value in exchange for the altered testimony or by threatening, explicitly or implicitly, the witness/victim or his or her family. Some states go so far as to make it a crime to try to intentionally influence a witness's testimony by any means. Such efforts are considered to be interference with evidence and the administration of justice and are subject to significant penalties.

Although you may have the best of intentions in reaching out to your neighbor, he may misconstrue your approach and view it as a threat or coercion or some other attempt at undue influence. And, if your state has the more stringent type of law barring any intentional effort to influence testimony, a prosecutor may view any conversation you have with him about the crime as attempted witness tampering.

Suborning perjury

Another potential trap for you is that your contact with the neighbor could be viewed as an attempt to get him to lie at trial. This is known as suborning perjury. Although it is not your actual intent to try to get your neighbor to lie about your involvement in the vandalism, a prosecutor who learns that you spoke to him about the crime may suspect otherwise. As mentioned, your neighbor could misconstrue your words or may be more than happy to add to the charges against you.

Let Your Lawyer Do Her Job

If you sincerely believe that you may be able to convince your neighbor of your innocence and to drop the charges by talking to him, ask your lawyer to talk to the prosecutor instead. Most prosecutors do not want to waste their time and budget prosecuting cases they will lose, and if you can satisfy the prosecutor that you were not the perpetrator, he will probably drop the charges. You can ask that you and your neighbor be present at such a meeting, but the lawyers may be able to hash it out themselves. In any event, discuss this with your lawyer and formulate a strategy based on her advice.

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