Limiting the Prosecutor's Use of Informants: The Second Circuit's Misreading of DR7-104(A)(1), United States v. Hammad, 858 F.2d 834 (2d Cir. 1988)

• NCJ Number: 121625
• Journal: Washington University Law Quarterly Volume: 67 Issue: 2 Dated: (1989) Pages: 613-625
• Author(s): D J Schnurman
• Date Published: 1989
• Length: 13 pages
• Sale Source: National Institute of Justice/; NCJRS Photocopy Services
• Publication Format: Article
• Publication Type: Legislation/Policy Analysis
• Language: English
• Country: United States of America

Annotation

This article argues that a Federal circuit court erred in holding that an American Bar Association disciplinary rule prohibits a prosecuting attorney from using an informant to communicate with an adverse party who has retained counsel. The circuit court's holding will limit a prosecutor's abilities to obtain evidence.

Abstract

The court held that Disciplinary Rule 7-104(A)(1) prohibits the prosecutor from communicating with a counselled adverse party during the investigations phase of criminal proceedings. However, other courts have not agreed on the stage of criminal prosecution that entitles a party to the protection of Rule 7-104(A)(1), and these nonsupporting cases are discussed in detail. A broad reading of Rule 7-104(A)(1) could permit criminals with permanent legal counsel to permanently immunize themselves from infiltration by informants. It was an error to apply the Disciplinary Rule to the investigatory stage of criminal investigations in United States v. Hammad (Hammad II) because the holding severely curtails criminal investigations, leaving prosecutors with the unhappy choice of abandoning the use of informants in criminal investigations or risking the disqualification of evidence obtained through informants when district courts apply the confusing and ambiguous rule of Hammad II. 78 footnotes.