The Alibi Witness and the Unhelpful Receipt
Elena is a licensed PI retained by a criminal defense attorney. She interviews a witness, Ms. Poole, who says, 'I think I saw the defendant at the gas station around 9, but I'm not sure-it was dark.' A receipt later places the defendant near the crime scene at 9:10 p.m., which undercuts the alibi. The attorney tells Elena, 'Put Poole's statement in your report, but leave out the receipt. It's not helpful, and the prosecutor will twist it.' Elena's draft report says, 'Ms. Poole confirmed the defendant's alibi.' At the attorney's office, opposing counsel serves a subpoena for Elena's file and schedules her deposition. The attorney says, 'Just say you don't remember the receipt.' The case is set for trial in three weeks, and Elena's contemporaneous notes include the receipt and Poole's uncertainty.
1. Evaluate Elena's draft report and the attorney's instructions under ethical reporting standards.
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The draft report is misleading. Ms. Poole did not 'confirm' the alibi; she gave a tentative, dark-condition observation with uncertainty. Elena must quote or closely paraphrase the witness and state the uncertainty. The receipt is material, not 'unhelpful' detail, because it bears on the alibi. The attorney may decide trial strategy and what to argue, but the attorney cannot direct Elena to create a false report or to omit material facts from the factual record she prepares. A report to counsel can be work product, but work product does not protect falsification. Elena should correct the report, include the receipt, and preserve her original notes. If the attorney insists on a false report, she should decline and seek independent ethics advice.
2. What must Elena do when she is subpoenaed and deposed? Can she follow the attorney's instruction to say she does not remember the receipt?
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Elena must testify truthfully. She may not say she does not remember the receipt when her contemporaneous notes show she does. She can assert a privilege or work-product objection if counsel directs and the court permits, but she cannot lie under oath. She should produce the file as required by the subpoena or seek a protective order through counsel, preserve all notes and drafts, and correct the report before testifying. If the attorney instructs her to commit perjury, she should refuse and consult her own lawyer; the instruction itself is unethical. Her duty of candor and her license are at stake.
3. Draft the core factual findings Elena should include, in neutral language.
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Suggested findings: 'On [date], Ms. Poole stated that she thought she saw the defendant at the gas station at approximately 9:00 p.m., but she was not certain because it was dark. She did not identify the defendant with confidence.' 'I obtained a receipt dated [date] showing a transaction at [location] at 9:10 p.m.' 'These two pieces of information are in tension; I have not resolved the conflict.' The report should separate observations, witness statements, and documents, and should avoid conclusions such as 'confirmed the alibi.' If Elena has an opinion, she should label it as opinion and explain its basis.