LEO: Attorney as Witness - Commonwealth's  LE Op. 1320


Attorney as Witness - Commonwealth's Attorney: Commonwealth's

Attorney Called as a Witness by Assistant Commonwealth's

Attorney Prosecuting Defendant Whose Indictment

Resulted From Investigation Handled by the

Commonwealth's Attorney.


February 27, 1990


You have asked the Committee to consider whether it is unethical for the

Commonwealth's attorney who was involved in the prosecution of a defendant

to testify on behalf of the Commonwealth in the trial of a second

defendant where the prosecutor of the second defendant is an assistant of

the Commonwealth's attorney. The following is a summary of the pertinent

facts as presented in the inquiry on which the Committee based its



A Commonwealth's attorney's office involved in a drug prosecution case

against Defendant A successfully convicted Defendant A of illegal

possession of a controlled substance with intent to distribute. Following

the guilty verdict, A filed post-trial motions, specifically, a motion was

filed for a new trial based upon after discovered evidence supported by an

affidavit of Defendant B. At the scheduled hearing to consider the motion

for a new trial, Defendant B made multiple admissions of perjury that were

contained in the affidavit. As a result, the Commonwealth's Attorney's

Office opened an investigation of perjury of Defendant B, and an

indictment was returned charging Defendant B with perjury.


The Committee believes the appropriate and controlling rules relative to

your inquiry are DR:5-101(B)(1) and DR:5-102(A). In particular, DR:5-

101(B)(1) provides that a lawyer shall not accept employment in

contemplated or pending litigation, nor shall he continue in the conduct

of a trial if he knows or it is obvious that he or a lawyer in his firm

ought to be called as a witness, except that he may undertake the

employment and he or a lawyer in his firm may testify if the testimony

will relate solely to an uncontested matter or matter of formality and

there is no expectation that substantial evidence will be offered in

opposition to the testimony. (See also LE Op. 487)


The Committee previously opined in LE Op. 597 that an assistant

Commonwealth's attorney may testify on behalf of the Commonwealth and

against a defendant on the charge of driving after having been previously

adjudicated an habitual offender, notwithstanding the fact that the

assistant Commonwealth's attorney had served as the prosecutor in the

prior adjudicatory proceeding, unless the defendant's identity is

questioned and the Commonwealth's attorney has reason to believe that

substantial evidence will be offered in opposition to his assistant's



In the Committee's view, the distinction between LE Op. 597 and the

facts of the instant inquiry is that an indictment of perjury of a

defendant returned based on the results of the Commonwealth's

investigation is not tantamount to a conviction since it is a preliminary

proceeding. Unless the defendant enters a guilty plea, the prosecution may

reasonably conclude that the defense may offer evidence in opposition to

the Commonwealth's testimony. Thus, barring a guilty plea from the defense,

it would be improper for the assistant Commonwealth's attorney to

prosecute a new matter arising out of an indictment returned pursuant to

the Commonwealth's investigation, when the Commonwealth's attorney in the

assistant prosecutor's office should testify on behalf of the prosecution.

The Committee believes that, under the facts presented in the inquiry, a

special prosecutor will have to be appointed to avoid the potential for a

conflict arising as a result of the Commonwealth's attorney's testimony.


Committee Opinion February 27, 1990