Q: I was falsely accused of domestic assault by my ex-fiance and there is a DANCO. Her family wants to testify. Can they?
My ex-fiance has a long history of making false accusations out of spite. Her whole family knows I am being falsely accused and they want to testify on my behalf. I told my public defender that they want to speak with him, but he said he is not allowed to talk to the victim's family because it is considered "third party contact" and it would get me in trouble. How can I go about getting them to testify for me if we are not able to contact them?
A:
Your attorney is allowed to speak with the alleged victim's family. The alleged victim's family does not have to speak with your attorney, but the prosecutor prevent them from doing so if they wish to. The same goes for any other potential witness with pertinent information; the prosecutor cannot keep anyone with relevant information from discussing your case with opposing counsel. If the family indicated that they wish to testify in your defense, then yes, by all means, your attorney can and most certainly and should speak with them. Refer them to Rule 9.03, which governs the boundaries of communication between parties and witnesses. Testimony from the alleged victim’s family in your defense would likely be very impactful, so if they are willing, have your attorney reach out or have them reach out to your attorney. Just do not contact the alleged victim yourself - that is what would get you in trouble.
As far as the third-party contact goes, this simply means that you cannot use any third party (i.e. the alleged victim’s family) to mediate a conversation or relay messages back and forth between a defendant and the alleged victim with the DANCO. No contact means no contact - through any medium, including other people.
Best of luck to you.
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A: When a court issues a "No Contact" Order or condition to a defendant, it does not apply to the defendant's attorney (who is an officer of the court). In fact, the defense has a constitutional right to contact any and all; potential witnesses in the case. It's important that the defendant never violate the No Contact Order or condition. The "indirect contact" prohibition applies to the defendant, not the attorney. The attorney will only be interested in fact gathering and preparation of the case.
A: Your public defender could certainly have his or her investigator reach out to her family members if they have substantive information regarding the allegations against you.
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