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
Chief

Between           No                                                       N/A
Chief and
Cross

During              No                                                       Yes
Cross

Between           No                                                       N/A
Cross and
ReExam

During              N/A                                                     Yes
ReExam
                                               
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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