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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 always amazed with the varying interpretations that Judges have of the Rule on Witnesses. I have seen the Rule applied so that, in some instances, counsel is not allowed to communicate with any witness or party once that person has commenced testifying.  In one instance, the Rule was applied to forbid counsel from even speaking to their respective clients once the client had begun testifying.

The Purpose of the Rule on Witnesses

The purpose of the Rule is to minimize the likelihood of a witness altering testimony so as to make it conform with that of a prior witness.1  Wigmore states the purpose of the rule to be two-fold:  restrain witnesses from tailoring their testimony and aiding counsel in detecting testimony that is less than candid.  6  J. Wigmore, Evidence s 1838(3rd. ed, 1940).

The Rule itself is actually not a rule at all but is a statute found at Virginia Code § 8.01-375 and 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 there is an agreement of counsel and in equitable distribution cases and child or spousal support hearings the Court may, upon motion of any party, allow one expert witness for each party to remain in the courtroom.

Rule on Witnesses-How Broad

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

Although there is no clear case authority on this, the objective is to prevent the witness from being informed of prior testimony.  As long as counsel is simply asking questions of the witness and deriving answers and is not informing the witness of what has been testified to by another witness, that should be permissible.  The federal cases that have dealt with this subject under Federal Rule 615 indicate that when an instruction is given to the witnesses, it should be worded in terms of not discussing the case with anyone other than counsel.2

In those instances where the Court extends the Rule so as to prohibit counsel from speaking to their client, the Court may be creating certain due process problems.3  In Potashnick the Court prohibited any communication between counsel and that party’s corporate representative once the representative had begun testifying.  The Circuit Court noted that this constituted a deprivation of the Defendant’s constitutional right to counsel since, as the corporate  representative, the party was thereby effectively deprived of the constitutional right to retain counsel.

The 4th Circuit has dealt with the issue of whether witnesses should be instructed to refrain from discussing their testimony with other witnesses.  Although the Court has refused to go so far as to say that the failure of the Trial Judge to give such an instruction to the witness is reversible error in the absence of proof of prejudice, the Court has noted that the Trial Court should instruct witnesses not to discuss their testimony with each other outside of the courtroom.4

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

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

Rule on Witnesses-Sanctions

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

Other options available to the Court for a violation 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’ credibility in light of the violation of the Rule
  • a contempt finding as to the witness or counsel

Federal Rule of Evidence 615(3) allows the Trial Court to exempt a witness from the Rule where certain criteria apply, the most important of which 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 Trial Court as to how the Court interprets the Rule.

Consult a Personal Injury Attorney

For more information on this topic or any personal injury matter, please visit the personal injury pages on this site and 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 always amazed with the varying interpretations that Judges have of the Rule on Witnesses. I have seen the Rule applied so that, in some instances, counsel is not allowed to communicate with any witness or party once that person has commenced testifying.  In one instance, the Rule was applied to forbid counsel from even speaking to their respective clients once the client had begun testifying.

The Purpose of the Rule on Witnesses

The purpose of the Rule is to minimize the likelihood of a witness altering testimony so as to make it conform with that of a prior witness.1  Wigmore states the purpose of the rule to be two-fold:  restrain witnesses from tailoring their testimony and aiding counsel in detecting testimony that is less than candid.  6  J. Wigmore, Evidence s 1838(3rd. ed, 1940).

The Rule itself is actually not a rule at all but is a statute found at Virginia Code § 8.01-375 and 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 there is an agreement of counsel and in equitable distribution cases and child or spousal support hearings the Court may, upon motion of any party, allow one expert witness for each party to remain in the courtroom.

Rule on Witnesses-How Broad

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

Although there is no clear case authority on this, the objective is to prevent the witness from being informed of prior testimony.  As long as counsel is simply asking questions of the witness and deriving answers and is not informing the witness of what has been testified to by another witness, that should be permissible.  The federal cases that have dealt with this subject under Federal Rule 615 indicate that when an instruction is given to the witnesses, it should be worded in terms of not discussing the case with anyone other than counsel.2

In those instances where the Court extends the Rule so as to prohibit counsel from speaking to their client, the Court may be creating certain due process problems.3  In Potashnick the Court prohibited any communication between counsel and that party’s corporate representative once the representative had begun testifying.  The Circuit Court noted that this constituted a deprivation of the Defendant’s constitutional right to counsel since, as the corporate  representative, the party was thereby effectively deprived of the constitutional right to retain counsel.

The 4th Circuit has dealt with the issue of whether witnesses should be instructed to refrain from discussing their testimony with other witnesses.  Although the Court has refused to go so far as to say that the failure of the Trial Judge to give such an instruction to the witness is reversible error in the absence of proof of prejudice, the Court has noted that the Trial Court should instruct witnesses not to discuss their testimony with each other outside of the courtroom.4

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

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

Rule on Witnesses-Sanctions

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

Other options available to the Court for a violation 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’ credibility in light of the violation of the Rule
  • a contempt finding as to the witness or counsel

Federal Rule of Evidence 615(3) allows the Trial Court to exempt a witness from the Rule where certain criteria apply, the most important of which 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 Trial Court as to how the Court interprets the Rule.

Consult a Personal Injury Attorney

For more information on this topic or any personal injury matter, please visit the personal injury pages on this site and 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