Here's the situation: Say you have the home and work addresses and phone numbers of a complaining witness (CW). The CW gave the police a statement, so you'd like to talk her to get another statement to have something to impeach her with if she tells you a different story than she told the police. But, of course, you know the CW probably won't want to talk to you, so you don't want to call. Calling on the phone makes it easy for the CW to hang up on you; visiting the CW in person makes it at least a little more likely she'll talk to you. And you don't really want to bother her at work because, well, she might feel less like talking in that setting, you might be interrupting something if you tried to visit her there, etc. So you decide to try to catch her at home.

So you go visit the CW's apartment. You go on weekends because you know she works during the week. You visit four times in the middle of different Saturdays and Sundays, but the CW is never home. On your last try, as you and your investigator are leaving and in the parking lot after finding the CW not home once again, you run into one of the CW's neighbors and ask the neighbor: “Do you know CW? Does she live here?” You're just asking because after four visits you're starting to wonder if you're in the right place. The neighbor says yes, but asks why you want to know.

You: “She was involved in an incident a couple of months ago and we're investigating that. I just was hoping to talk to her about it.”

Neighbor: “Would you like me to give her a message?”

You: “No. I'll just try to call her or something, but thanks.”

And that's it. Then you get to court and during pre-trial plea negotiations the prosecutor starts off with “There are some really bad things going on with this case.” Huh? “Somebody has been harassing the victim, terrorizing her neighbors, asking questions without identifying themselves.”

You: “Are you saying we're not allowed to investigate?”

Prosecutor: “No, but... Do we need to take this up with the judge?”

You: “Go ahead. We haven't done anything wrong.”

But have we? What do you think? Should we have given our card to that neighbor? Was it unethical not to do so?

My answer is that, probably yes, we should have said that we were investigating on behalf of the accused in the case. Some criminal attorneys I've talked to agree, but others take the position that you don't have to identify yourself as a criminal defense attorney/investigator to everyone you meet on the street, so we had no obligation to tell the neighbor anything.

So, any thoughts?