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Case 1:20-cr-00330-PAE Document545 - Filed 12/15/21 Page2of9 established and cannot be established without infringing on privilege. Finally, even ifthe proposed testimony were relevant to some minimal extent, the Court should deny the motion under Rule 403 rather than compel victims’ counsel to testify against their own clients. The defendant’s approach here is strongly disfavored by courts because, even if not implicating privileged, forcing an attorney to testify against his client comes at the direct expense of the attorney-client relationship, especially for a vulnerable victim like the victim of sexual abuse. I. Applicable Law Federal Rule of Evidence 402 provides that “[i]rrelevant evidence is not admissible.” Accordingly, any evidence that does not bear on the defendant’s guilt or innocence of the charges in the indictment should be excluded as irrelevant. Rule 403 further states that the Court may “exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” It is generally disfavored for a party at a trial to call an attorney as a witness against the attorney’s client, because doing so intrudes on the attorney-client relationship. Cf, e.g., 1 Att’y-Client Privilege in the U.S. § 3:24 (2021) (“Although attorneys are subject to subpoena just like any other witness, courts discourage the government from calling the attorney of a defendant, or of the target of a criminal investigation, because forcing an attorney to testify against his client comes at the direct expense of the attorney- client relationship. ‘The serving of a subpoena will immediately drive a chilling wedge between the attorney/witness and his client.””); United States v. Schwartzbaum, 527 F.2d 249, 253 (2d Cir. 1975) (holding that the defendant may not call Government counsel as a witness unless “required by a compelling and legitimate need”); Edebali v. Bankers Standard Ins. Co., 14 Civ. 7095 (JS) DOJ-OGR-00008375