At a recent pre-trial hearing a defendant was going to plea guilty to felony dwi, but he fired his attorney and requested another court appointed attorney. Well, the defendant was intoxicated when he showed up to court. I put on the record that I observed the defendant to have blood shot eyes, slurred speech, and a strong odor of alcohol about his person. I requested the court to revoke his bond.

The court did not revoke the bond, and appointed the defendant a new attorney. The court told the defendant not to come to court if he had been drinking. We have the trial tomorrow, and if I get to punishment I want to introduce this incident. The defense attorney (who acknowledges the defendant was intoxicated) does not want to testify and claims his observations are privileged. I disagree and believe he can tell the jury what he observed about the defendant's physical appearance without violating attorney/client privilege.

In the alternative, can I call myself as a witness in the punishment phase????

Trial is tomorrow.

Thanks,

John

Any chance the bailiff or an investigator also observed the defendant's intoxication? And how can the defense attorney claim his observations in an open courtroom are privileged? That's like saying I can shout to my lawyer across the room, but anyone who heard is required to disregard because it was an attorney-client conversation. Never mind the requirement of confidentiality. Even if they were somehow privileged, he's already broken whatever privilege might have existed by acknowledging his client's intoxication. I would ask for a stipulation.

A prosecutor should never be a witness. That creates a conflict that could result in reversal of the punishment.

The defense attorney could be a witness, at least as to the physical characteristics he observed (but not the words he heard). Better, though, to have a 3rd party -- investigator -- serve as the witness. If you use a bailiff, then there is the conflict created by having a court person serve as a witness.

Should the judge be hearing the case if he also was a witness to the intoxication (and seems to have a difference of opinion on it)?

I think it presents more problems than necessary.....and I'll just avoid having to address it on appeal.

Of course, if the defendant chooses to testify, you could ask him about it...