Proposed 2009 Formal Ethics Opinion 7: Interviewing a Child Witness

Inquiry #1:

Attorney A represents a criminal defendant on a charge of taking indecent liberties with a child. To prepare for trial, Attorney A would like to interview the child who is the victim of the alleged crime. The child is not a party to the criminal action. She does not have a lawyer and a guardian ad litem has not been appointed to represent her interests. May Attorney A interview the child without the consent of the child's parent or legal guardian?

Opinion #1:

Yes, provided Attorney A respects the rights of the child and there is no legal requirement that the consent of the parent or legal guardian be obtained. See RPC 61 (defense lawyer may interview child victim of molestation without knowledge or consent of district attorney).

It is Attorney A's professional duty to prepare competently and diligently to defend the client; a priori, in most cases, this includes interviewing the victim of the alleged crime if the victim will consent to the interview. Nevertheless, a child may not have the emotional or intellectual maturity to make an informed decision about whether to consent to the interview, or the emotional or intellectual maturity to understand the role of the lawyer or the purpose of the interview.

Rule 4.3(b) states that, when dealing on behalf of a client with a person who is not represented by counsel, a lawyer shall not

state or imply that the lawyer is disinterested. When the lawyer knows or reasonably should know that the unrepresented person misunderstands the lawyer's role in the matter, the lawyer shall make reasonable efforts to correct the misunderstanding.

As noted in comment [1] to Rule 4.3, "[a]n unrepresented person, particularly one not experienced in dealing with legal matters, might assume that a lawyer is disinterested in loyalties or is a disinterested authority on the law even when the lawyer represents a client."

Many children are inexperienced in legal matters and will not understand the role of a criminal defense lawyer who seeks an interview. Many children will naively defer to the defense lawyer because he or she is an adult. Many children will be easily mislead or subject to the undue influence of an authority figure such as a lawyer. For these reasons, a criminal defense lawyer who seeks to interview the child victim of a crime must make a reasonable determination of whether the child is sufficiently mature to understand, when disclosed by the lawyer, (1) the role of the lawyer, (2) who the lawyer represents, (3) the purpose of the interview, and (4) that the child is at liberty to refuse to be interviewed. If the lawyer cannot reasonably conclude that the child is sufficiently mature, both emotionally and intellectually, to understand these four things, the lawyer may not interview the child unless a legal guardian or parent consents. If the conduct of the legal guardian or the parent toward the child is at issue in the criminal case, consent must be obtained from a guardian ad litem, a court, or other appropriate person or entity with authority to give consent. See opinion #3.

Rule 3.4(b) prohibits a lawyer from counseling or assisting a witness to testify falsely. This includes making improper suggestions or offering inducements that might lead a naEFve and vulnerable child to change or alter her or her testimony. Although a lawyer may reasonably conclude that a child is sufficiently mature to consent to the interview, the lawyer may not engage in emotional manipulation or other forms of undue influence, coercion, or intimidation that may inhibit or alter the witness's testimony.

Although a communication without the consent or knowledge of the child's parent or guardian may be allowed under this opinion, a lawyer should err on the side of giving notice to the parent or guardian—and preferably obtaining the consent of the parent or guardian—unless circumstances are such that the lawyer has a good faith belief that the child's candor may be affected by the knowledge of the parent.

Inquiry #2:

May the prosecutor interview the child who is the alleged victim of the crime?

Opinion #2:

Yes, subject to the same constraints set forth in opinion #1.

Inquiry #3:

The defendant is the child's parent or legal guardian and is accused of conduct that, if proven, would constitute abuse or neglect of the child. May the defendant's criminal defense lawyer interview the child subject to the constraints set forth in opinion #1?

Opinion #3:

In most instances of alleged child abuse or neglect, a guardian ad litem (GAL) and an attorney advocate are appointed to represent the child. RPC 249 prohibits a lawyer from communicating with a child who is represented by a GAL and an attorney advocate unless the lawyer obtains the consent of the attorney advocate. If a GAL has not been appointed for the child, the lawyer may interview the child subject to the constraints set forth in opinion #1.

Inquiry #4:

Attorney B is defending a child in a delinquency proceeding. She would like to interview another child who witnessed the events giving rise to the delinquency charge. However, it would be detrimental to the child witness for his parents to know that he was present when and where the events occurred. May Attorney B interview the child witness without the consent of the child's parents or legal guardian?

Opinion #4:

Yes, subject to the constraints set forth in opinion #1.

If not otherwise clear from the context, the conditions and limitations imposed by this opinion apply equally to prosecutors.