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Office of the Attorney General

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Bob Ferguson

AGO 1956 No. 289 -
Attorney General Don Eastvold


A prospective defense witness or state's witness is not guilty of obstructing justice by refusal to respond to interrogation prior to trial.

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                                                                   June 25, 1956

Honorable Charles O. Carroll
Prosecuting Attorney of King County
County-City Building
Seattle 4, Washington                                                                                                              Cite as:  AGO 55-57 No. 289

Attention:  !ttMr. F. A. Walterskirchen

            Chief Criminal Deputy

Dear Sir:

            Your letter of May 21, 1956, previously acknowledged, requested our opinion on the interpretation of RCW 9.69.060.  Your questions may be stated as follows:

            1. Is a prospective witness for the defense guilty of a misdemeanor under RCW 9.69.060 if he refuses to answer interrogatories propounded by a public officer?

            2. Does a prospective witness who has given a statement showing him to have been an accomplice in the commission of a crime have a legal duty to respond to further interrogation by the officers under the aforementioned statute?

            3. Is an attorney at law violating either law or ethics by advising a prospective witness not to reply to the questions of the officers?

            We answer questions 1 and 2 in the negative; question 3 becomes moot.

             [[Orig. Op. Page 2]]


            RCW 9.69.060 reads as follows:

            "Every person who, after due notice, refuses or neglects to make or furnish any statement, report, or information lawfully required of him by any public officer, or who, in such statement, report, or information makes any wilfully untrue, misleading, or exaggerated statement, or who wilfully hinders, delays, or obstructs any public officer in the discharge of his official powers or duties shall be guilty of a misdemeanor."  (Emphasis supplied.)

            We feel that the foregoing statute is not so broad as to create a duty upon prospective defense witnesses to make any statement or furnish information to a police officer.  The statute was designed primarily to prohibit persons from withholding information from public officers investigating such matters as business records for tax purposes.  We are of the opinion that defense information may not be "lawfully required" of a witness by a public officer.  To hold to the contrary would seriously impair, if not destroy, the efforts of defense counsel to properly represent a person charged with a crime, to the end that justice could not be truly administered.  The fact that a prospective witness is recalcitrant does not constitute a misdemeanor.  Finding nothing in the law, statute or case, to the effect that a citizen is lawfully required to answer interrogation of the type involved herein, we must conclude that failure to respond to interrogation does not constitute a misdemeanor.

            Certainly one who has admitted complicity in the commission of a crime cannot be compelled to make any further statements or offer additional information.  Article 1, § 9 of the Washington constitution provides that no accused person shall be compelled to give evidence against himself.  The mere fact that the accused made a statement does not waive his right subsequently to invoke this constitutional guaranty.

            We hope the foregoing opinion will prove helpful.

Very truly yours,

Attorney General

Assistant Attorney General