An investigator from a local law enforcement agency participates in the investigation of a case. He leaves law enforcement and now is investigating the same offense for the defendant's attorney. Obviously my victims are furious that he is now contacting them on behelf of the defendant. Do I have any recourse?

Having prosecuted many of his prior investigations, I only hope that his new employer gets the same caliber of investigative talent that the law enforcement agency received. Meow.

Isn't he only an agent of the attorney representing the defendant. The investigator may not have a "legal" conflict, but seems like attorney does. Talk to State Bar folks to see if I'm in the ball park.

I actually don't see any conflict imputed to the defense attorney.

I think perhaps some argument could be made vice versa if a defense investigator went to work for the DA's office and handled the same case(attorney client privilege and the investigator being privy to defense theories, evidence, etc).

I don't think it is true for this situation, and especially since he was a cop and not a DA investigator. I still think a DA investigator wouldn't result in the same problem as defense investigator going to work for the DA.

I'm basing this on the facts that:

1. I am aware of no duty to an officer that prohibits switching sides and working on the same case, either in statute or in case law;

2. The basic duties of the parties are wholly different. Our duty is to see that Justice is Done, and the defense's duty is to represent the client to the best of their ability. They get to know about all of our stuff, but we can only discover their experts. That difference is crucial to this analysis, IMHO. Everything the officer learned as a cop should already be available to the defense through discovery. Where is the harm to the State?

So do you know if the officer had planned to retire prior to this case, or will a claim be made that this case made him resign from the police force because of the innocence of the perp? I actually had that happen to me one time. It turned out fine.

[This message was edited by GG on 04-19-07 at .]

[This message was edited by GG on 04-19-07 at .]

Of course, you can always advise your victims they have the option of meeting with the investigator at your office, with your office represented in the interview. Since they are upset at his side-switching, perhaps that would alleviate their discomfort.

Personally, I think it generally looks bad when witnesses do not talk to either the defense attorney or his investigator if properly requested by the defense team. This situation is different, based on the reason for the witnesses discomfort. I think a jury would understand why they might not want to talk to him. But I think a jury would like it better if they talked to him at your office.

What about the situation where his work on the case for the State might become relevant at trial? If the State wants to call him as a witness, doesn't that put us in a predicament if we run into a grey area of what is work product for the state and what is work product for the defense?

I know that what I think about a case, my prosecution theory, my notes on witness interviews (absent exculpatory content) is work product for the State.

But do you think that a police officer's actions done on a case constitute work product? I don't see how that could be. Why wouldn't the defense be entitled to discovery of any report, witness interviews, etc done by the police officer in the investigation of an offense?

I just don't see how a police officer's investigatory product could be classified as work product, and that is without discussion as to whether it would be Brady material.

The DR's talk about (DR 1.10) govt lawyer to private practice and unfair exploitation of office to benefit private client. Escpecially sub para (c) having info lawyer should know is confidential acquired when lawyer was in public office...Is argument to extend logical(?)...When read with DR 5.03 responsbilities regarding non lawyer assistants, (including investigators) that says the lawyer must make reasonable effort that conduct is compatiable with the professional obligations of the lawyer?
Maybe I'm offbase but want to see thoughts...
(In this case, the investigator sat in on dicussions of how to proceed with the investigation so not just results after the fact...)

If he has knowledge of the case, he's a potential witness for the State. So, can an attorney hire a State's witness to work for the defense without tampering with the witness's testimony? Certainly there is an appearance of impropriety.

My whole point is that this person is a police officer, not an attorney. Is the contention that the officer knew during his government employment inculpatory evidence, then I would think the defendant should have access to that through either open file or discovery. If the contention regards exculpatory evidence gained while an officer, then they should have that already.

I would have a hard time articulating before a judge a reason why this is harmful to the state. Does it look bad for the witness/defense? Yes, I would think it would look bad in a trial. Is it against some ethical rule or statute? Tell me I'm wrong but I cannot articulate a principal or theory that indicates otherwise.

I do think tampering with a witness is a big reach.

Didn't it ever occur to this guy that this just isn't right? Doesn't anyone have a moral compass anymore? In the words of a certain unnamed co-worker, "People are just no damn good."

But you'd think TECLEOSE would have some rules about this.

I think the question was would he be able to keep from testifying for the state by claiming he works for the def. atty and therefore what he did for the def. atty was privleged or work product?

I thought the question was did Steph have any recourse now that he has switched sides, which to me meant how could the DA's office keep him from either contacting victims or testifying to police.

Agree with Jane, but I don't think TCLEOSE is as forward thinking as her suggestion.

Could you ask for a pretrial hearing, list the investigator as a witness for the State, and invoke the rule? Then he shouldn't be able to discuss the facts of the case with anybody but the lawyers for either side.