In United States v. Sabhnani, 599 F.3d 215, 237-241 (2d Cir. N.Y. 3/25/2010) several of the prosecution witnesses admitted that they had refused to speak to defense counsel prior to the trial. Over defense objection the judge instructed the jurors as follows:
You have heard testimony from witnesses that attorney [Mahender's trial counsel] asked to speak to them prior to their testimony. I instruct you that [counsel] had a right to attempt to interview these witnesses before they took the stand. However, I also instruct you that these witnesses had a right to decline to speak to him. And no unfavorable inference should be drawn against them because of that declination.
On appeal the defense contended that absent this instruction, the jury could have reasoned that because these witnesses refused to speak to defense counsel, they must have been biased against the defense. Moreover, the defense also argued that the instruction may have cast trial counsel in a negative light for even asking witnesses the question whether they had refused to speak to the defense prior to trial.
The appellate court found no error in the instruction: “The instruction did nothing more than inform the jury of this right and instruct that a witness does not act wrongfully by exercising it. The defense was still free to suggest – and did, through cross-examination and in summation – that the refusal to meet with defense counsel could suggest a witness's greater sympathy for or affiliation with the other side of the case.” Sabhnani, 599 F.3d at 546.
For subscription based briefing and sample instructions on this and related issues see:
Forecite National™
The Shellow Instructions
Witnesses Generally: Duty Of Attorney To Interview Witnesses
