Defence counsel must consider at an early stage whether there are any potential witnesses who may have relevant information that will assist the client.
Defence counsel may seek information from any potential witness. That being said, counsel must be cognizant of the rules of engagement that govern communication between counsel and a potential witness. These rules are set out in section 5.4 of the Nova Scotia Barristers’ Society Code of Professional Conduct.
If a potential witness is cooperative and has information that may be relevant to your client’s defence, you should make prompt arrangements for a fulsome interview. Time is of the essence. Memories fade quickly and the details of what happened on a particular date will become murkier with each passing day.
Counsel should also consider the means by which the memories of a witness may be preserved.
A trial may not take place for many months, or in some cases, for many years after the date of the alleged incident. A signed, handwritten statement or a recorded statement will be useful for refreshing the witness’s memory at a later date. Given that a formal statement may also be useful for impeachment purposes or as substantive evidence, counsel should consider engaging a private investigator or another lawyer to take a statement from a potential witness so as to avoid becoming a witness in the proceeding.
If a potential witness is uncooperative with Defence counsel’s request for an interview and the client has an election available, counsel may want to consider subpoenaing the witness for examination at a preliminary inquiry.