After the ABA expressed concerns this month that a bill pending in the Colorado House Judiciary Committee would have interfered with the duty of defense teams to seek to interview witnesses, the committee approved an amended bill March 17 that is in line with ABA policy and standards.
The bill, House Bill 15-1218, addresses Defense-Initiated Victim Outreach (DIVO), which provides a process by which defense teams can meet with victim survivors and family members who also may be potential witnesses. DIVO serves important needs of the survivors by providing a bridge with the defense team that allows the team to address survivors’ questions about the crime, the defendant and even general concerns about the court process. The original bill would have required, among other things, written authorization prior to contact with witnesses. That requirement was removed from the bill before it was approved by a 13-0 committee vote.
“While every witness has the right to refuse to speak with an attorney, prosecutors and defense attorneys both must be allowed to meet their duties to investigate, including attempting to interview witnesses,” ABA Governmental Affairs Director Thomas M. Susman wrote in a March 16 letter to Colorado House Judiciary Committee Chair Daniel Kagan and Vice Chair Pete Lee.
Susman explained the defense team’s duty to seek to interview all potential witnesses, including victims and their families, is well established in the ABA Criminal Justice Standards for the Defense Function. The duty to seek to interview is intensified in death penalty cases, where the right rests on both the Sixth and Eighth Amendments.
He explained that the ABA Guidelines for the Appointment and Performance of Defense Counsel in Death Penalty Cases explain the unique nature of death penalty proceedings and explain that “counsel should know and fully explain to the client…concessions that the client might offer, such as...an agreement with the victim’s family, which may include matters such as: a meeting between the victim’s family and the client, a promise not to publicize or profit from the offense, the issuance or delivery of a public statement of remorse by the client, or restitution.”
“Defense counsel’s duty to seek to interview is so fundamental to American criminal justice that the ABA Prosecution Function Standards bars prosecutors from hampering communication between defense counsel and witnesses.” Susman explained.
He also pointed out that the legislature in Colorado expressly requires attorney to adhere to ABA standards.