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The Threat to a Witness' Right to Counsel
By Kathryn Keneally, Kenneth Breen
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
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