The Witness Who Wants to Recant
You are retained by a defense attorney in a felony assault case scheduled for trial in 18 days. The commonwealth's key witness, a 24-year-old barista, gave a signed statement to police identifying the defendant. The witness now calls your office and says, 'I lied; I was pressured by the defendant's brother.' She wants to recant but refuses to be recorded and says she is on probation for a drug offense and 'can't afford trouble.' She asks you to write an affidavit for her to sign, and she wants to meet at her apartment at 10 p.m. The attorney tells you to 'get something usable.'
1. How should you handle the interview time, location, and recording request?
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Meet during daytime in a public, neutral place, not alone in her apartment at 10 p.m. A late-night, isolated meeting creates coercion and safety concerns and undermines the reliability of any statement. Honor her refusal to be recorded; do not secretly record. Take detailed contemporaneous notes, including her exact words where possible, and note who was present. Explain that you are an investigator for the defense, not her lawyer, and that she may consult counsel. Avoid promises, threats, or suggestions about what she should say.
2. What are the risks of preparing an affidavit for the witness to sign?
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Drafting an affidavit for her can look like putting words in her mouth. If she signs a document prepared by the defense investigator, the prosecution will attack it as coached or coerced. A better practice is to let her write her own statement, or have her review and correct a verbatim transcript of her own words. She should sign voluntarily, preferably before a notary, and be told she can have counsel review it. Do not tell her what to say or omit facts that hurt the defense. Preserve your notes and any drafts, because they may be discoverable or used to cross-examine you.
3. What obligations arise from the coercion allegation and the witness's probation status?
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The coercion allegation is potentially witness intimidation or tampering. Report it to the hiring attorney promptly and preserve your notes; do not confront the brother or investigate him without the attorney's direction. Do not use her probation status as leverage. Threatening to report her or promising to help her with probation in exchange for a recantation could itself be obstruction or witness tampering. Treat her probation status as a fact to document, not a bargaining chip. The attorney can decide whether to notify the court or prosecutor, seek a protective order, or prepare a disclosure.