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A COUNTY ATTORNEY WHO PARTICIPATED IN OBTAINING A CONFESSION FROM
A DEFENDANT IN A MURDER CASE SHOULD NOT PARTICIPATE IN THE PROSECUTION
OF THE TRIAL WHERE THERE IS A POSSIBILITY HE WILL BE CALLED AS
A WITNESS PERTAINING TO THE VOLUNTARINESS OF THE CONFESSION.
FACTS
You state that in your capacity as County Attorney you participated
in obtaining a confession from a defendant in a murder case. You
inquire whether you may participate in the prosecution of the case
with the knowledge that there is a possibility you would be called
as a witness by the defense during the progress of the case.
Under the law developed in the State of Nebraska pertaining to confessions,
it is incumbent upon the State to prove that a confession was voluntary,
which question is to be determined in the first instance by the
trial judge, and secondly, by the jury. It would thus appear that
you would probably have to testify as a prosecution witness either
on direct or rebuttal pertaining to the question of voluntariness.
CODE PROVISIONS AND DISCUSSION
DR 5-101(B) of the Code of Professional Responsibility states:
"A lawyer shall not accept employment in contemplated or
pending litigation if he knows or it is obvious that he or a lawyer
in his firm ought to be called as a witness..."
The Nebraska Supreme Court has dealt with this question in several
cases, among which is Frank vs. State, 150 Neb 745, 35 N.W. 2d 816:
"As a matter of course, an attorney participates in a trial
when he in some manner actively takes part in and conducts the same
as an attorney. Roberts v. State, 100 Neb. 199, 158 N.W. 930, Ann.
Cas. 1917E 1040, is authority for this proposition that it is improper
in a criminal prosecution to allow one who testifies as a witness
to the principal facts in the case to also as attorney conduct the
trial in the examination of witnesses and argument to the jury,
or to conduct himself in any manner inconsistent with his position
as a witness or his interest as an officer of the state. In other
words, although a competent witness, his function as a prosecuting
attorney and as a witness must be disassociated. Therefore, if it
is discovered before the trial that he is a necessary witness he
should withdraw from any active participation as attorney for the
state and have other counsel prosecute the case."
In State vs. Newman, 179 NEB 746, 140 N.W. 2d 406, our court reaffirmed
the holding of the above case:
"In Frank v. State, 150 Neb. 745, 35 N.W. 2d 816, we said:
'A county attorney, being a quasi-judicial public officer, in whom
the public has reposed confidence, his evidence is ordinarily given
greater weight than that of an ordinary witness, and the natural
tendency in such cases is for defendant to question the fairness
of a trial when he becomes a witness for the state. Therefore, he
should when that becomes necessary, so conduct himself as to foster
and demonstrate the fact that he is not actively participating as
a prosecutor, but only as a witness, truthfully and impartially
giving competent testimony.'"
See also Pribyl vs. State, 165 NEB. 691, 87 N.W. 2d 201, which holds
to the same effect.
CONCLUSION
It would appear that you "ought" to be called as a witness
either by the State or by the defense, and the Committee is of the
opinion that you should disqualify yourself from participating in
the prosecution of the case.
76-5, May 26, 1976
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