Friday, December 27, 2013

Summary of Professional Conduct Rule 4.04 on Communication with Witnesses Giving Evidence

RULE 4.04
Communicating With Witnesses Giving Testimony

Witness Called By You or                    Witness Called by Party Opposite
Sympathetic to You

During              Yes, on matters not yet covered            Yes

Between           No                                                       N/A
Chief and

During              No                                                       Yes

Between           No                                                       N/A
Cross and

During              N/A                                                     Yes
This is a simplification of the Rule and the precise text should be reviewed for greater certainty.  To simplify, once evidence has been called it is better not to speak to sympathetic witnesses about the evidence.  Discussions with unsympathetic witnesses are proper. 

The judicial officer may make exceptions to the Rule and such an exception should be sought if communication is necessary – for example if a hearing is to be adjourned for a lengthy period during a cross-examination of your client.         


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