in England.
I caught part of “A Fish Called Wanda” on television last night. At one point in the movie, one character tells another that barristers cannot speak to their witnesses about a pending case, and that to do so would be unethical.
Is this true? If so, why? Doesn’t the barrister need to know what the witness is going to say?
IANAL, and more specifically, I’m not a UK barrister, however, one item that may play into it, was that the witness in question was for the other side. IOW, the defense attorney was apparently prohibited from questioning a defense witness. others in the UK may have better info, but I do remember that point.
I am not a lawyer (I am also the founder of 'Internet Abbreviations Needlessly Abuse Language*).
I have read some legal stories (by John Mortimer), where I found the following:
UK lawyers (divided into solicitors and barristers) can certainly question their own witnesses
you have to keep various people apart (the judge from everyone, unless making a legal submission; the defence lawyer + defendant from the prosecution witnesses)
you can’t defend someone as Not Guilty if they tell you they did it (the stories are rather old, so maybe this doesn’t apply)
*known as IANAL, of course
To clarify (I hope): John Cleese’s charcter is not supposed to have any contact with a witness for the other side, outside the context of formal cross-examination. The reason for this, probably, is to prevent lawyers from finding possible weaknesses in advance; they’re supposed to work with only what they’re given in open court. (I think.)
But Wanda was going to be a witness for Cleese’s client, not for the prosecution.
My impression was that if the trial lawyers(as opposed to investigators they employ) were to have contact with witnessess, they would leave themselves open to allegations of tampering. Of course, I could be wrong…
Where the heck is Minty when you need him…
The following page is the relevant section of the Bar Council’s code of conduct.
http://www.barcouncil.org.uk/document.asp?languageid=1&documentid=578
See, in particular, the following paragraphs
I very much doubt that the contact between Archibald Leech and Wanda would qualify as ‘appropriate’.
What? Oh, sorry, I was distracted by the Tenth Amendment over in GD.
Can’t provide a definitive answer, since I don’t know English law, but it appears that there is or was a general prohibition on counsel having ex parte contact with a witness. APB’s link says this has changed in civil matters, but A Fish Called Wanda involves a criminal trial. Archie (John Cleese) is defending a bank robber, and Wanda (Jamie Lee Curtis) is the witness who’s supposed to offer an alibi for Archie’s client. So I always assumed Archie’s explanation is correct that he’s not supposed to talk to anyone outside of court. The point of such a prohibition would presumably be to prevent witness coaching and tampering.
Needless to say, there is no such prohibition on speaking with your witnesses in America, although you cannot do so with the witnesses for the other side without a subpoena or prior approval from opposing counsel.
APB, are the rules different for solicitors, as opposed to barristers? I understood that the client retains the solicitor, who in turn retains the barrister, and that the solicitor has greater contact with the client and possible witnesses?
I would imagine that part of the rationale for the rule, besides witness tampering, is that if the barrister has much contact with witnesses outside of court, and a dispute arises about what the witness says, the barrister might end up being called as a witness.
That’s why I’ve never understood those Law & Order episodes where Jack MacCoy goes out and interviews witnesses - that’s the job of the police. If the witness says anything new and important to Jack, Jack in turn is potentially a witness. Do American prosecutors really do that, or is it just “dramatic licence”? (Canadian Crowns that I know rely on the police for witness interviews - they don’t meet with witnesses for the purpose of further investigations.) [hijack]and have you noticed that Jack typically goes out to interview the richer witnesses? I guess the cops can’t be trusted with them[/hijack]
Minty, why can’t you meet with witnesses from the other side (other than the opposing client, of course)? The Canadian approach is that “there is no property in a witness,” and neither side can prevent the other from talking to a potential witness. Of course, the witness can always refuse to talk to one side, or both. What’s the rationale for giving a lawyer the power to prevent access that way?
Oops. Not my brightest moment, that’s for sure, Northern Piper. I should have been more careful, but hopefully this will clarify.
An attorney may not communicate with a person or organization that is represented in a matter unless the other attorney has consented or the court has authorized such contact (e.g., ordered a deposition). In addition, a lawyer may not communicate with a person or orrganization that is conferring with or advising the lawyer for the other side about the matter. Also, a lawyer cannot pretend to be disinterested when contacting an unrepresented person.
Between those three rules, a lawyer is basically not allowed to contact the client for the other side, any employees of a company that is a party to the litigation(and that’s a very big deal when all the witnesses with any real knowledge are such employees), or any expert witnesses retained by the other side. You can speak to witnesses who are not affiliated with the other side, but you have to tell them who you are and they can always tell you to shove off. Being able to talk freely to such witnesses is helpful in criminal trials, but there don’t tend to be a whole lot of them in civil cases because the important witnesses are generally interested parties anyway.
Hope that helps explain things.
Ahh, that makes it clearer. With the exception of the retriction on contacting expert witnesses, that matches our system pretty well. Thanks.
as quoted by APB
From my limited knowledge of the English bar, I believe that “professional client” refers to the solicitor who hired the barrister. This seems to suggest Northern Piper’s idea that solicitors are relied on to spend more time dealing with witnesses.
Northern Piper, you asked whether American prosecutors interview witnesses. In my limited experience, I would say no. But, I’d like to limit that. That I know of, prosecutors don’t investigate a case in the manner seen on Law & Order. We don’t go out and grill people as to what they know about a crime, or try to get people to change alibis. We do have investigators we can send out to do initial interviews. That said, we do spend much time talking to people, and sometimes a question you ask leads to someone who knows something about the case. Unless what is said is exculpatory or mitigating, and thus requiring disclosure, you aren’t likely to become a witness as to what was said. Also, it is good practice to bring an investigator or some other peace officer either to conduct an interview or act as a witness. This can fix the problem of a witness changing his story, because practice around here allows investigators to testify as to what a person said, even if a a procecutor heard it said. So, if you have concerns about someone changing a story, you find a witness to hear the initial story.
I don’t know if you’ve ever had a chance to do it, but if you want a fun time in trial, but a lawyer in the witness box.
liebfels, your account matches my understanding of the Crown’s practices in my jurisdiction - if a Crown needs to talk to a witness, they tend to have a police officer present.
(The concern about becoming a witness may be more significant here, because we have broader disclosure obligations - anything that is relevant to the case must be disclosed. We don’t get into the exculpatory/mitigating discussion. If it’s marginally relevant, it gets disclosed, and the defence decides if they can make anything of it. So, most of what a potenial witness says is likely covered by disclosure obligations.)