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Rule on Witnesses – What it Really Means

Fairfax Injury Lawyer Brien Roche Addresses The Rule On Witnesses

Brien Roche

I am sometimes amazed with the varying takes that Judges have of the Rule on Witnesses. I have seen the Rule applied so that counsel is not allowed to communicate with any witness or party once that person has been put on the witness stand.  In one instance, the Rule was applied to forbid counsel from even speaking to respective clients once the client had begun testifying.

The Purpose of the Rule on Witnesses

The purpose of the Rule is to curtail the chance of a witness changing her testimony so as to make it conform with that of a prior witness.1  Wigmore states the purpose of the rule is two-fold. First to restrain witnesses from crafting testimony. In addition to aid counsel in detecting testimony that is less than candid.  6  J. Wigmore, Evidence s 1838(3rd. ed, 1940). Call, or contact us for a free consult.

The Statute

The rule is actually not a rule at all but is a statute. It is found at Virginia Code § 8.01-375. It states in part:

The Court trying any civil case may upon its own Motion and shall upon the Motion of any party, require the exclusion of every witness.  However, each named party who is an individual, one officer or agent of each party which is a corporation or association and an attorney alleged in a habeas corpus proceeding to have acted ineffectively shall be exempt from the rule of this section as a matter of right.

The statute goes on to deal with expert witnesses who may be allowed to remain in the courtroom if counsel agree. In equitable distribution cases and child or spousal support hearings the Court may allow one expert for each party to remain in the courtroom.

Rule on Witnesses-How Broad

Once the Rule has been invoked, the question may arise as to what extent counsel can talk to a witness who either is about to testify or who has begun testifying.

There is no clear case authority on this. The goal is to prevent the witness from being informed of what others have said.  As long as counsel is simply asking questions and deriving answers there should not be a problem. Counsel should not inform the witness of what has been testified to by another witness. The federal cases that have dealt with this subject under Federal Rule 615 state that witnesses should be told to not discuss the case with anyone other than counsel.2

No Bar To Contact With Client

In those cases where the Court extends the Rule so as to bar counsel from speaking to their client due process problems may arise.3  In Potashnick the Court prohibited any communication between counsel and that party’s corporate representative once the person had begun testifying.  This constituted a denial of the Defendant’s constitutional right to counsel. As the corporate  rep the party was deprived of the right to counsel.

The 4th Circuit has dealt with the issue. For instance whether witnesses should be instructed to refrain from discussing their testimony with other witnesses.  The Court has refused to go so far as to say that the failure of the trial judge to give such an instruction is error. In the absence of prejudice, the Court has noted that trial judges should instruct witnesses not to discuss testimony with each other outside of the courtroom.4

Sanctions

In an unreported case in Fairfax Circuit Court, counsel showed an expert witness the trial testimony transcript of a prior expert.  The Court deemed that violation of the Rule to be intentional. The court imposed the sanction of excluding the witness who had read the trial transcript.

That may well be a proper sanction where the conduct is intentional.  In U.S. v. Zhang, 217 F 3d 843 (4th Circ. 2000-unpublished opinion) the Court found a breach of the rule to be due to a misunderstanding of counsel. The court did not exclude the witness. Rather it noted that it would consider the breach of the Rule in weighing the witness’ testimony.

Rule on Witnesses-Other Options

In making the decision as to what sanction to impose for a breach of the rule, a factor is whether the goal of the rule can be served by using a sanction other than precluding the testimony.   Benn v. U.S., 801 A.2d 132 (D.C. 2002).

Other options available for a breach of the rule are:

  • declaring a mistrial.
  • allowing the witness to be cross-examined about the violation and providing the jury with a cautionary instruction to weigh the witness’ statements in light of the breach.
  • a contempt finding as to the witness or counsel

Federal Rule of Evidence 615(3) allows the court to exempt a witness from the rule where certain factors exist. The most important of those is that the witness is essential to the presentation of the case.

If in doubt as to how the rule is going to be applied, an inquiry should be made of the court. This way you know what you can do.

Consult a Personal Injury Attorney

Call, or contact us for a free consult. For more information on this topic or any personal injury matter, please visit the personal injury pages on this site. Also see the pages on Wikipedia.

___________________________

     1Motley v. Tarmac America, Inc., 258 Va. 98, 516 S.E.2d 7 (1999)

     2U.S. v. Jackson-Randolph, 282 F.3d 369, 383-384 (6th Cir. 2002); U.S. v. Calderin-Rodriguez, 244 F.3d 977, 984-985 (8th Cir. 2001)

    3Geders v. U.S., 425 U.S. 80, 87-88, 96 S. Ct. 1330, 47 L.ED.2d 592 (1976); Potashnick v. Port City Construction Company, 609 F.2d 1101, 1118-1119 (5th Cir. 1980)

    4U.S. v. Milanovich, 275 F.2d 716 (4th Cir. 1960); U.S. v. McMahon, 104 F.3d 638, 639, 644 (4th Cir. 1997)

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Rule on Witnesses – What it Really Means

Fairfax Injury Lawyer Brien Roche Addresses The Rule On Witnesses

Brien Roche

I am sometimes amazed with the varying takes that Judges have of the Rule on Witnesses. I have seen the Rule applied so that counsel is not allowed to communicate with any witness or party once that person has been put on the witness stand.  In one instance, the Rule was applied to forbid counsel from even speaking to respective clients once the client had begun testifying.

The Purpose of the Rule on Witnesses

The purpose of the Rule is to curtail the chance of a witness changing her testimony so as to make it conform with that of a prior witness.1  Wigmore states the purpose of the rule is two-fold. First to restrain witnesses from crafting testimony. In addition to aid counsel in detecting testimony that is less than candid.  6  J. Wigmore, Evidence s 1838(3rd. ed, 1940). Call, or contact us for a free consult.

The Statute

The rule is actually not a rule at all but is a statute. It is found at Virginia Code § 8.01-375. It states in part:

The Court trying any civil case may upon its own Motion and shall upon the Motion of any party, require the exclusion of every witness.  However, each named party who is an individual, one officer or agent of each party which is a corporation or association and an attorney alleged in a habeas corpus proceeding to have acted ineffectively shall be exempt from the rule of this section as a matter of right.

The statute goes on to deal with expert witnesses who may be allowed to remain in the courtroom if counsel agree. In equitable distribution cases and child or spousal support hearings the Court may allow one expert for each party to remain in the courtroom.

Rule on Witnesses-How Broad

Once the Rule has been invoked, the question may arise as to what extent counsel can talk to a witness who either is about to testify or who has begun testifying.

There is no clear case authority on this. The goal is to prevent the witness from being informed of what others have said.  As long as counsel is simply asking questions and deriving answers there should not be a problem. Counsel should not inform the witness of what has been testified to by another witness. The federal cases that have dealt with this subject under Federal Rule 615 state that witnesses should be told to not discuss the case with anyone other than counsel.2

No Bar To Contact With Client

In those cases where the Court extends the Rule so as to bar counsel from speaking to their client due process problems may arise.3  In Potashnick the Court prohibited any communication between counsel and that party’s corporate representative once the person had begun testifying.  This constituted a denial of the Defendant’s constitutional right to counsel. As the corporate  rep the party was deprived of the right to counsel.

The 4th Circuit has dealt with the issue. For instance whether witnesses should be instructed to refrain from discussing their testimony with other witnesses.  The Court has refused to go so far as to say that the failure of the trial judge to give such an instruction is error. In the absence of prejudice, the Court has noted that trial judges should instruct witnesses not to discuss testimony with each other outside of the courtroom.4

Sanctions

In an unreported case in Fairfax Circuit Court, counsel showed an expert witness the trial testimony transcript of a prior expert.  The Court deemed that violation of the Rule to be intentional. The court imposed the sanction of excluding the witness who had read the trial transcript.

That may well be a proper sanction where the conduct is intentional.  In U.S. v. Zhang, 217 F 3d 843 (4th Circ. 2000-unpublished opinion) the Court found a breach of the rule to be due to a misunderstanding of counsel. The court did not exclude the witness. Rather it noted that it would consider the breach of the Rule in weighing the witness’ testimony.

Rule on Witnesses-Other Options

In making the decision as to what sanction to impose for a breach of the rule, a factor is whether the goal of the rule can be served by using a sanction other than precluding the testimony.   Benn v. U.S., 801 A.2d 132 (D.C. 2002).

Other options available for a breach of the rule are:

  • declaring a mistrial.
  • allowing the witness to be cross-examined about the violation and providing the jury with a cautionary instruction to weigh the witness’ statements in light of the breach.
  • a contempt finding as to the witness or counsel

Federal Rule of Evidence 615(3) allows the court to exempt a witness from the rule where certain factors exist. The most important of those is that the witness is essential to the presentation of the case.

If in doubt as to how the rule is going to be applied, an inquiry should be made of the court. This way you know what you can do.

Consult a Personal Injury Attorney

Call, or contact us for a free consult. For more information on this topic or any personal injury matter, please visit the personal injury pages on this site. Also see the pages on Wikipedia.

___________________________

     1Motley v. Tarmac America, Inc., 258 Va. 98, 516 S.E.2d 7 (1999)

     2U.S. v. Jackson-Randolph, 282 F.3d 369, 383-384 (6th Cir. 2002); U.S. v. Calderin-Rodriguez, 244 F.3d 977, 984-985 (8th Cir. 2001)

    3Geders v. U.S., 425 U.S. 80, 87-88, 96 S. Ct. 1330, 47 L.ED.2d 592 (1976); Potashnick v. Port City Construction Company, 609 F.2d 1101, 1118-1119 (5th Cir. 1980)

    4U.S. v. Milanovich, 275 F.2d 716 (4th Cir. 1960); U.S. v. McMahon, 104 F.3d 638, 639, 644 (4th Cir. 1997)

Contact Us For A Free Consultation

Contact Us For A Free Consultation