Can I talk to the district attorney if I’m accused of a crime? Should I?

There is no specific rule that prohibits a defendant in a criminal case from speaking directly with the district attorney in an attempt to negotiate a resolution of the charges. However, most jurisdictions have ethics rules that say prosecutors cannot speak directly with defendants whom they know to be represented by an attorney.

If a person is not represented by a lawyer (and even if the person is), then he/she should decide not to speak with the D.A. This is because the accused might:

1. provide the prosecution with information it did not have,
2. agree to something without knowing the true result,
3. agree to something without understanding the consequences,
4. plead guilty to something that the prosecution cannot prove,
5. ignore the fact that a police officer/police department violated his/her rights in their investigation/arrest.

If a person is accused of a crime, that person should contact an experienced criminal defense attorney for help. This is true no matter if the person is accused of:

• a misdemeanor, or
• a felony.

If a party is represented, and is then approached by the D.A., the suspect must inform the prosecutor of this representation. The accused should also provide his/her lawyer’s contact information to the prosecutor.

Note that in the criminal justice system and under criminal laws of all jurisdictions, the D.A. is the lawyer that (among other things):

• decides whether or not to press charges, and
• prosecutes the criminal case on behalf of the applicable state.

Can I talk to the D.A.?

Hypothetically, a person accused of a crime can try to speak with the D.A., the district attorney’s office, and/or a deputy district attorney.

But note that the ethics rules state bars say that a prosecutor or DA’s office cannot speak with a defendant if a lawyer knows that he/she is represented by a defense attorney.

This is true in all states within the United States and applies no matter if the accused is suspected of a simple battery charge to a charge involving a violent crime.

If unrepresented, a prosecutor can agree to speak with an accused.[i] In this scenario, however, the D.A. must always advise the accused of his/her:

• right to remain silent, and
• right to counsel.

If a suspect expresses a desire to speak with a criminal defense attorney, public defender, or private attorney, the prosecutor must cease all communication with the accused or criminal defendant.[ii]

A prosecutor that fails to cease talks will violate the accused’s constitutional rights as well as state ethics rules.[iii]

Is it a good idea for an accused person to speak with the D.A.?

Again, a prosecuting attorney can agree to speak with an unrepresented person suspected of criminal charges.

But it is generally ill-advised for a defendant to speak privately with the prosecutor. This is because the accused may:

1. provide the prosecution with information it did not have,
2. plead guilty to something that the prosecution cannot prove,
3. ignore the fact that a law enforcement agency may have violated his/her rights in their investigation/arrest,
4. agree to something without knowing the true result, and
5. agree to something without understanding the consequences.

As to the first point, note that D.A.s normally just have the following information before they decide to press charges:

• the facts contained within a police report,
• information from a grand jury proceeding, or
• statements from the alleged victim of a crime.

An accused that speaks with the prosecutor could end up providing the prosecution with information not found from the above sources. This means the suspect hands over evidence that the prosecution did not have or possibly could not obtain.

As to the last two points, note that a prosecutor is under no obligation to provide a suspect with legal advice regarding the consequences of his/her actions. This means that, if an accused speaks with a D.A., he or she could say something or agree to something without knowing the true ramifications of that statement/agreement.

For example, a prosecutor may try to have a suspect enter into a plea bargain regarding a domestic violence crime because of the alleged victim’s wishes. But the deal may be nowhere close to being in his/her best interest. Here, though, the prosecutor has no duty to explain the true consequences of the bargain

Should a person request a defense counsel if approached by the prosecutor?

Yes. A person accused of a crime should seek help from a:

• criminal defense attorney,
• law firm experienced with criminal cases, or
• a public defender.

This is true no matter if a person is approached by a district attorney or not. The above parties are well skilled in the advocacy of an accused rights and liberties. Further, they can make certain that an accused understands the charges that he/she potentially faces.

Note that the information that an accused provides to a lawyer is protected by the attorney-client privilege. This means that the attorney cannot disclose client information to other parties – even if they are subject to a subpoena or court order.

Is it prosecutorial misconduct if a D.A. speaks with an accused?

Sometimes. It just depends on the facts of the case and whether the D.A. talked with a suspect and either:

1. knew that the suspect was represented by defense counsel, or
2. knew that the party was unrepresented and did inform the party that they have the right to counsel and the right to remain silent.

“Prosecutorial misconduct” occurs when a prosecutor in a criminal case behaves in an illegal or unethical manner. The misconduct is typically aimed at securing a conviction or a lengthier sentence for the defendant.

A judge can do any of the following if he/she finds that misconduct prejudiced the accused:

1. dismiss the charge(s),
2. admonish the jury to disregard certain evidence or comments, or
3. grant a motion for a new trial.

What is the law in the State of California?

People accused of a crime in California should contact a defense attorney for help. This is true even if criminal charges have not been filed and a person is only a suspect.

If a person is represented and is approached by a D.A., then that person must inform the prosecutor of the representation.

Note that Penal Code 1181 is the California statute that says a judge may declare a mistrial and grant a new trial if a finding of prosecutorial misconduct.[iv]

This is provided, however, that:

1. the misconduct prejudiced the outcome of the case, and
2. the defense attorney objected to it at trial.[v]

Also see our related page on Can a defendant talk to a witness?

[i] See, for example, In re Disciplinary Proceedings Against Mauch, 107 Wis. 2d 557.

[ii] Edwards v. Arizona, 451 US 477 (1981).

[iii] In re Disciplinary Proceedings Against Mauch, 107 Wis. 2d 557.

[iv] California Penal Code 1181 PC.

[v] People v. Rodriguez (2018) 26 Cal.App.5th 890.