The Champion

April 2007 , Page 60 

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The Threat to a Witness' Right to Counsel

By Kathryn Keneally, Kenneth Breen

Read more White-Collar Crime columns.

The tension between the stated purpose of the legal system as a search for the truth and the vital role of counsel in that system has always existed, but certainly has received heightened attention in recent years. The criminal justice system is an adversarial process. It is essential to the system that prosecutors remain focused on their obligation to work through the system to learn the truth, and to reach a just result. It is the role of defense counsel, in contrast, to stand on the side of those under investigation and those accused of crimes, to ensure that their rights are protected and their positions vindicated.

A recent decision by a trial court in New York reflects a fundamental misunderstanding of the roles of both the prosecutor and defense counsel.1 At issue was not the defendant’s right to counsel, but that of a witness in the investigation. In People v. Kabir,2 the prosecutor discouraged the witness from contacting counsel and proceeded with

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