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Restrictions on Lawyers Communicating with Witnesses During Testimony: Law, Lore, Opinions, and the Rule

Trial Lawyers

Witnesses are typically permitted to meet and communicate with lawyers before and after they testify. But a difficult situation may arise when a witness talks with a lawyer at some point during his or her testimony, that is, before all direct and cross examination has been completed. To many people inside and outside of the legal profession, this seems suspect or just plain wrong. Old fashioned common sense suggests that witness testimony is subject to being colored, coached, or even deliberately changed as a result of consultation with a lawyer, thereby impeding the search for truth.

Although this is a basic problem inherent in all witness testimony, and the issue comes up regularly in trials, hearings, depositions, and other proceedings, there is surprisingly little authority directly on point. When this issue presents itself, practitioners and judges alike may find themselves relying on lore, conventional wisdom, and strongly held opinions instead of law. The objective of this article is to identify and explain existing Florida law that may restrict lawyers from communicating with witnesses during their testimony and to suggest strategies for dealing with this issue when it arises in practice.

The Issue
The classic scenario arises when a witness who, while testifying on cross examination at a trial or hearing, speaks with the lawyer who called the witness to the stand on direct before the cross examination has been completed. This frequently happens during lunch breaks or other casual breaks between the direct and cross examinations. If a witness talks to the lawyer who called him or her to the stand before the cross examination has been completed, the cross examining lawyer may become quite irritated and claim that something illegal, improper, or unethical has occurred.

This same issue arises in a slightly different context during civil depositions. Some lawyers believe a deponent is not allowed to speak with his or her lawyer, even during breaks, until the deposing lawyer’s questioning has been completed. Anyone who has ever represented a witness in a deposition knows that deponents almost always want to talk to a lawyer during breaks, if nothing else but to gain reassurance they are doing a good job. Commonly the witness will ask things like “How am I doing?” or “Did I answer that last question before the break correctly?” Sometimes witnesses even request breaks during depositions for the specific purpose of consulting with their lawyer. Upon returning from a deposition break, it is not unusual for a witness to be asked whether he or she spoke to his or her own lawyer during the break. When this comes up, lawyers may end up spending valuable time disagreeing about the propriety of the witness consulting with the lawyer during a break.

Although this issue arises regularly in both civil and criminal litigation, there are divergent viewpoints on what restrictions, if any, the law places on lawyers communicating with witnesses during their testimony. On one side of the spectrum, some believe that witnesses are automatically sequestered by virtue of being called to testify, and it is absolutely improper for a lawyer to talk to any witness about any subject until that witness’ testimony has been concluded. Others believe it is permissible for lawyers to talk to witnesses about general matters while they are testifying, but not specifically about their testimony. Some embrace a more nuanced view that it is permissible for a lawyer to talk to a client during the client’s testimony, but it is improper for a lawyer to talk to a third-party witness. At the opposite end of the spectrum are those who believe a lawyer is permitted to talk to any witness about anything, including the witness’ testimony, before, during, and after the witness has testified. Given the disparity of views, it is helpful to separate the law on this issue from lore, opinions, and conventional wisdom.

The Rule
In the American legal system, there are hundreds, if not thousands, of rules but one particular rule — the rule of witness sequestration — is so commonly used that it is known simply as “the rule.” Even an inexperienced lawyer appearing in court for the first time usually knows to invoke the rule. The rule of witness sequestration, or exclusion of witnesses, came from common law but it is now codified in F.S. §90.616, which provides as follows:

(1) At the request of a party the court shall order, or upon its own motion the court may order, witnesses excluded from a proceeding so that they cannot hear the testimony of other witnesses except as provided in subsection (2).

(2) A witness may not be excluded if the witness is: (a) A party who is a natural person; (b) In a civil case, an officer or employee of a party that is not a natural person. The party’s attorney shall designate the officer or employee who shall be the party’s representative; (c) A person whose presence is shown by the party’s attorney to be essential to the presentation of the party’s cause; (d) In a criminal case, the victim of the crime, the victim’s next of kin, the parent or guardian of a minor child victim, or a lawful representative of such person, unless, upon motion, the court determines such person’s presence to be prejudicial. a
“The rule is designed to aid in ensuring a fair trial by avoiding the coloring of a witness’ testimony by that which he has heard from other witnesses who have preceded him on the stand, thereby discouraging fabrication, inaccuracy and collusion.”
2 However, many assume the rule also prevents lawyers from communicating with witnesses during their testimony. Thus, by invoking the rule, many believe they have done something that prevents an opposing lawyer from communicating with witnesses during their testimony.

The plain terms of the rule preclude a witness from sitting in a proceeding and listening to other witness testimony — it says nothing about witnesses communicating with lawyers. In addition, it has long been recognized that the rule also precludes witnesses from talking to each other outside of the courtroom about what happened in the courtroom; that is, witness A cannot tell witness B what questions were just asked and what answers were just given.3 Similarly, the rule has been interpreted to preclude a sequestered witness from reviewing a daily transcript of the proceedings.4

Case law has also expanded the rule to include a prohibition on witnesses talking with certain nonwitness intermediaries about their testimony.5 Obviously, the purpose of the rule would be defeated if an intermediary could sit in on the testimony and then relate what occurred in the courtroom to a sequestered witness. This intermediary concept is the basis for the argument that the rule prohibits lawyers from communicating with witnesses during their testimony. According to this argument, the trial lawyer is the ultimate intermediary.

Although there may be good theoretical and practical reasons for treating a trial lawyer as an intermediary for purposes of the rule, Florida case law interpreting the rule does not support this argument.6 For example, in Chamberlain v. State, 881 So. 2d 1087 (Fla. 2004), a death penalty case, the defendant claimed the prosecutor violated the rule by speaking with a state witness, a Detective Fraser, during a break in his testimony.

Detective Fraser testified after defense counsel invoked the rule of sequestration. At the conclusion of his testimony, the court excused the jury, but asked Detective Fraser to remain in the courtroom during a bench conference. Thereafter, the prosecutor briefly discussed with Detective Fraser that he was going to be recalled to testify about a July 26, 1999, bond hearing in which Chamberlain was a witness. Defense counsel objected to Fraser being recalled on the grounds that the state had violated the rule by discussing with Fraser his potential testimony on recall during a break in the proceedings and while he was still under oath.7

The trial court overruled the defense objection based on the alleged violation of the rule. In affirming the trial court on this point, the Florida Supreme Court held:

The rule is designed to aid in ensuring a fair trial by avoiding the coloring of a witness’s testimony by that which he has heard from other witnesses who have preceded him on the stand, thereby discouraging fabrication, inaccuracy and collusion. In this case there is no indication or allegation that Detective Fraser remained in the courtroom during the testimony of another witness, or that Detective Fraser discussed his testimony with another witness.8

Based on this passage from Chamberlain, it appears the Florida Supreme Court interprets the rule as prohibiting only two things: 1) witnesses remaining in the courtroom to hear the testimony of other witnesses; and 2) witnesses discussing their testimony among themselves prior to testifying. After reviewing the text of the rule itself, together with the existing Florida case law, it is clear that the rule does not prohibit lawyers from communicating with witnesses during their testimony. Those wishing to prevent opposing counsel from communicating with witnesses during their testimony must look elsewhere for support.

Rules Governing Mode and
Order of Presentation of Evidence
Trial courts are given broad authority to control their proceedings under modern rules of procedure. Some have argued that these rules prohibit lawyers from communicating with witnesses during their testimony. One such rule, F.S.§90.612, provides in relevant part:

The judge shall exercise reasonable control over the mode and order of the interrogation of witnesses and the presentation of evidence, so as to: (a) facilitate, through effective interrogation and presentation, the discovery of the truth; (b) avoid needless consumption of time; (c) protect witnesses from harassment or undue embarrassment.

While this rule does not specifically prohibit lawyers from communicating with witnesses during their testimony, a reasonable argument certainly could be made that prohibiting lawyers from communicating with witnesses during their testimony would “facilitate. . . the discovery of the truth.” Thus, this rule has been cited by at least one Florida court as support for an order prohibiting lawyers from communicating with witnesses during their testimony.9

The federal rules contain a similar provision, Fed. R. Evid. 611, which provides in relevant part:

The court shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to (1) make the interrogation and presentation effective for the ascertainment of the truth, (2) avoid needless consumption of time, and (3) protect witnesses from harassment or undue embarrassment.

Federal courts also have cited this rule when confronted with general witness sequestration issues.10 However, the published federal opinions do not include any cases where a federal court has held that Rule 611 specifically prohibits lawyers from communicating with witnesses during their testimony.

It is clear that these rules grant trial courts broad authority to control their proceedings, and this authority may be relied upon by a trial court to prohibit lawyers from communicating with witnesses during their testimony. Nonetheless, they do not, by themselves, prohibit lawyers from communicating with witnesses during their testimony.

Rules of Professional Conduct
Regardless of what the rules of procedure may provide with respect to this issue, some believe it is flatly unethical for a lawyer to speak with a witness before the witness’ testimony has been completed. Those who subscribe to this view believe that a lawyer who communicates with a witness during the witness’ testimony has engaged in an unethical act regardless of what the lawyer and witness may have discussed. Lawyer coaching is, of course, the main concern.

Although no Florida rule of professional conduct specifically addresses witness coaching, it is recognized that the general rules prohibiting lawyers from facilitating untruthful testimony are broad enough to prohibit witness coaching.11 Indeed, Florida courts have recognized the fact that lawyers are ethically prohibited from coaching witnesses.12 The U.S. Supreme Court also has recognized the danger of unethical witness coaching which may occur if a lawyer is permitted to speak with a witness prior to completion of his or her testimony.13

Unfortunately, the ethical rules against witness coaching are of limited usefulness as a practical matter. There is general agreement that witness coaching is unethical, but there is considerable disagreement as to the definition of “coaching” as opposed to legitimate preparation.14 It should not come as a surprise that the distinction between legitimate witness preparation and impermissible coaching is difficult to define. Even if there were an easy definition, it is difficult to prove that a lawyer coached a witness without getting into complex and time consuming attorney-client privilege issues.15

In any event, the ethical rules do not flatly prohibit all communication between lawyers and witnesses during the witness’ testimony — only coaching is ethically prohibited.

Common Law Authority of Courts to Control Their Proceedings
Except for a brief mention in one federal court’s local rules, there appears to be nothing in Florida law directly prohibiting lawyers from communicating with witnesses during their testimony.16 This does not mean that lawyers and witnesses have a right to engage in this kind of communication or that trial courts are powerless to prohibit it. Rather, case law establishes that trial courts have common law authority to control their own proceedings and courts may use this authority to prohibit this practice.17

In Geders v. U.S., 425 U.S. 80, 89 (1976), the trial judge sequestered all witnesses for both prosecution and defense and before each recess instructed testifying witnesses not to discuss their testimony with anyone, including the lawyers. The U.S. Supreme Court addressed whether this restriction could be applied to a criminal defendant in light of the Sixth Amendment right to counsel. The Court began with the general proposition that “[t]he judge’s power to control the progress and, within the limits of the adversary system, the shape of the trial includes broad power to sequester witnesses before, during, and after their testimony.”18 After confirming the fact that trial courts have the inherent authority to prohibit lawyers from communicating with witnesses during their testimony, the Supreme Court then turned to the precise issue of whether this authority was restricted when the witness in question was a criminal defendant. The Court held that the trial court could not prohibit a criminal defendant from communicating with his or her lawyer in light of a defendant’s Sixth Amendment right to counsel. Thus, according to Geders, trial courts have the inherent common law authority to prohibit lawyers from communicating with witnesses during their testimony, as long as the witness is not the defendant.19

A review of Florida case law indicates that trial courts routinely restrict lawyers from communicating with witnesses during their testimony, usually between direct and cross examination.20 In all of the reported Florida opinions, it was assumed that trial courts have the inherent authority to restrict lawyers from communicating with witnesses during their testimony; the typical issue on appeal is whether such an order may be applied to a criminal defendant, not whether the court had the authority to enter such an order in the first place. As such, there is little doubt that Florida trial courts have the inherent common law authority to prohibit lawyers from communicating with witnesses during their testimony, as long as the witness is not a criminal defendant.

Addressing Lawyer-Witness Communication During Testimony
Although trial courts have the inherent authority to prohibit lawyers from communicating with witnesses during their testimony, this prohibition does not automatically exist absent a court order. As previously noted, there is no rule of procedure specifically prohibiting this practice, so lawyers are free to do so as long as they do not engage in coaching. Therefore, if a litigant wishes to prohibit opposing counsel from communicating with a witness during his or her testimony, it is necessary for a trial judge to enter such an order.21 Depending on the judge, an order of this nature might be entered sua sponte, but in most instances it will be necessary for counsel to request such an order on a case-by-case basis.

A trial court’s decision on this point is a highly discretionary matter. There are no published opinions in Florida reversing a trial court for refusing to prohibit lawyers from communicating with witnesses (other than a criminal defendant) during their testimony.22

When seeking an order prohibiting lawyer-witness communications during the witness’ testimony, counsel should be prepared to make arguments supporting their position and not simply assume the trial court will see things their way.23 For some judges, it is obvious that lawyers should be prohibited from communicating with witnesses during their testimony. Other judges view things differently and may be reluctant to intervene.24

When a court has entered an order prohibiting lawyers from communicating with witnesses during their testimonies, failure of a witness, or a lawyer, to abide by it could subject one or both parties to sanctions including punishment for contempt or exclusion of such testimony at trial. But absent such an order from the trial court, there is nothing in Florida law prohibiting lawyers from communicating with witnesses during their testimony unless the communication constituted coaching.

The Criminal Defendant — A Special Situation
As noted earlier, the U.S. Supreme Court has held that a trial court’s authority to prohibit communication between a criminal defendant and his or her counsel is extremely limited. The Florida Supreme Court has ruled to the same effect.25 Because of the constitutional right to counsel, a criminal defendant is entitled to speak with his or her lawyer at almost any time during a trial. That said, a criminal defendant does not have the right to discuss his or her trial testimony with his or her lawyer while actually on the witness stand.26 Thus, a criminal defendant does not have the constitutional right to force a break in proceedings to speak with his or her lawyer if the trial judge is not inclined to permit it.27 But under Florida law, once a recess is called, no matter how brief, a defendant must have access to his or her attorney.28 “[R]egardless of whether the recess is one hour, [30] minutes, or [10] minutes, to deny a defendant consultation with his attorney during any trial recess, even in the middle of his testimony, violates the defendant’s basic right to counsel.”29

When a Florida trial judge decides to enter an order restricting a lawyer from communicating with witnesses during testimony, the court must be careful to avoid applying such an order to a criminal defendant. If this should happen, a new trial may be warranted depending on the facts of the case.30

Conclusion
Many well-established reasons exist for prohibiting lawyers from communicating with witnesses during their testimony. In fact, the pragmatic, common sense appeal of such a prohibition is so strong that many in the legal community assume it exists without ever consulting the applicable rules and case law. But in the absence of an order from the trial judge, a lawyer is generally permitted to talk with a witness during testimony as long as the lawyer does not cross the line into unethical coaching.

This issue arises with regularity, especially in civil depositions, yet it does not lend itself to effective appellate review. As a result, there is insufficient case law on this important topic and lawyers are left to debate the issue back and forth with little hope for a definitive resolution. This combination of factors — a regular problem with little clarifying case law — suggests that a new rule of evidence or procedure would be useful to guide lawyers and judges as to the circumstances under which lawyers are prohibited from communicating with witnesses during their testimony. In the meantime, lawyers concerned about this issue must address the appropriateness of such a prohibition on a case-by-case basis with their trial judge. When doing so, it will be helpful to distinguish between law, lore, and personal opinions.

1 In federal court “the rule” is codified in Fed. R. Evid. 616.
2 Chamberlain v. State, 881 So. 2d 1087, 1099-1100 (Fla. 2004); Lott v. State, 695 So. 2d 1239, 1243 (Fla. 1997). “The practice of sequestering witnesses has been used for centuries, and it came to the United States as part of our inheritance of the common law.” Hernandez v. State, ___ So. 2d ___ 2009 WL 217972 (Fla. 2009). “Wigmore observed, ‘[t]here is perhaps no testimonial expedient which, with as long a history, has persisted in this manner without essential change.’” Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure, Evidence §6241 (2006); Gov’t of the Virgin Islands v. Edinborough, 625 F.2d 472, 473 (3d Cir. 1980) (stating that the practice of sequestration dates to Biblical times).

3 See Charles W. Ehrhardt, Florida Evidence §616.1 (2008) (“Although section 90.616 states that the court shall order witnesses excluded ‘so that they cannot hear the testimony of other witnesses except as provided in subsection (2),’ it seems clear that sequestration prohibits more than merely preventing a witness from hearing another person testify. Wigmore suggests that the process of sequestration also involves preventing the prospective witnesses from consulting each other and preventing them from consulting a witness who has left the witness stand.”).

4 Miller v. Universal City Studios, Inc., 650 F.2d 1365 (5th Cir. 1981) (sequestered expert violated the rule by reviewing daily transcript of proceedings; expert not allowed to testify).

5 See Del Monte Banana Co. v. Chacon, 466 So. 2d 1167, 1170 (Fla. 3d D.C.A. 1985) (nonwitness “was present in courtroom, related the courtroom testimony to a sequestered witness”).

6 There are at least three published Florida opinions that either directly or implicitly reject the argument that the rule prohibits lawyers from communicating with witnesses during their testimony. See, e.g., Chamberlain v. State, 881 So. 2d 1087, 1099-1100 (Fla. 2004); Nieves v. State, 739 So. 2d 125 (Fla. 5th D.C.A. 1999); and Kingery v. State, 523 So. 2d 1199 (Fla. 1st D.C.A. 1988).

7 Chamberlain v. State, 881 So. 2d at 1099 (Fla. 2004).

8 Id. at 1099-1100 (internal quotations omitted).

9 See Kingery, 523 So. 2d at 1205 (“Our reasoning on this point attempts to give due weight to the broad discretion accorded a trial court in the
conduct of a trial. See §90.612, Fla. Stat.”).

10 See In re U.S., 584 F.2d 666 (5th Cir. 1978) (Although federal agent involved in preparation of criminal proceedings could not be excluded from the courtroom, any prejudice from such agent’s presence while others were testifying could be rectified by requiring the government to present the agent’s substantive testimony at an early stage of its case; however, what the court could not do is bar the agent’s subsequent testimony either in government’s case in chief or on rebuttal because he was not sequestered.).

11 The local rules for the Southern District of Florida specifically prohibit coaching witnesses in depositions. See S.D. Fla. L. R. 30.1(A)(1). The Florida Bar Trial Lawyers Section, Guidelines for Professional Conduct (2008 ed.), discusses coaching during depositions in section F-8: “While a question is pending, counsel should not coach the deponent nor suggest answers, through objections or otherwise.” Witness coaching has contributed to the disbarment of at least one Florida lawyer. See Florida Bd. of Bar Examiners Re: L.H.H., 660 So. 2d 1046 (Fla. 1995).

12 Thompson v. State, 507 So. 2d 1074, 1075 (Fla. 1987) (discussing the fact that an attorney is not ethically permitted to coach a client during a break in the client’s cross examination); Leerdam v. State, 891 So. 2d 1046, 1048 (Fla. 2d D.C.A. 2004) (permitting defense counsel to consult with a client during a break in his testimony “allows defense counsel to advise, calm, and reassure the defendant without violating the rule against coaching witnesses”); Crutchfield v. Wainright, 803 F.2d 1103, 1110 (11th Cir. 1986) (attempting to define coaching as “improperly directing a witness’s testimony in such a way as to have it conform with, conflict with, or supplement the testimony of other witnesses”); see also Cardona v. State, 826 So. 2d 968 (Fla. 2002) (“When a particular witness is crucial to the [s]tate’s case, evidence of coaching is especially material to that witness’s credibility.”).

13 Geders v. U.S., 425 U.S. 80, 89 (1976).

14 For a general discussion of the ethical implication of witness coaching see Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1, 666 (1995); and Joseph D. Piorkowski, Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of “Coaching,” 1 Geo. J. Legal Ethics 389 (1987).

15 Haskell Co. v. Georgia Pacific Corp., 684 So. 2d 297 (Fla. 5th D.C.A. 1996) (“We recognize that the coaching of witnesses during depositions may obstruct the fact-finding purpose of discovery. We also recognize a trial court’s authority to supervise the conduct of parties at depositions, but that authority may not encroach upon the attorney-client privilege.”).

16 The only rule addressing this issue in Florida appears to be S.D. Fla. L. R. 30.1(A), which states, in relevant part, as follows: “The following abusive deposition conduct is prohibited: (2) Interrupting examination for an off-the-record conference between counsel and the witness except for the purpose of determining whether to assert a privilege.”

17 As Professor Ehrhardt notes, “[a] judge has the discretion to order a witness who is testifying not to talk with counsel during a recess in order to avoid counsel coaching the witness with respect to subsequent examination.” Ehrhardt, Florida Evidence §612.2 (2008). In McDermott v. Miami-Dade County, 753 So. 2d 729 (Fla. 3d D.C.A. 2000), a workers’ compensation judge entered an order precluding a witness from communicating with her lawyer during a multi-day break in her deposition. The First District held that a provision of the workers’ compensation statutes provided authority for the lower court’s order.

18 Geders, 425 U.S. 80, 89 (1976).

19 It should be noted that the U.S. Supreme Court narrowed its holding in Geders 13 years later in Perry v. Leeke, 488 U.S. 272 (1989). In Perry, the court held that there was no violation of the defendant’s Sixth Amendment right to counsel when he was precluded from talking to his lawyer during a 15-minute recess between his direct and cross examination. Nonetheless, Florida law, which contains a broader right to counsel, does not permit a trial court to impose the same restriction approved by the U.S. Supreme Court in Perry. See note 26 below.
20 See, e.g., Amos v. State, 618 So. 2d 157 (Fla. 1993); Thompson v. State, 507 So. 2d 1074 (Fla. 1987); Bova v. State, 410 So. 2d 1343 (Fla. 1982), habeas corpus granted, 674 F. Supp. 834 (S.D. Fla. 1987), judgment aff’d, 858 F.2d 1539 (11th Cir. 1988); Leerdam v. State, 891 So. 2d 1046 (Fla. 2d D.C.A. 2004); Wallace v. State, 851 So. 2d 216 (Fla. 3d D.C.A.), review denied, 860 So. 2d 980 (Fla. 2003), cert. denied, 540 U.S. 1187 (2004); Cabreriza v. State, 517 So. 2d 51 (Fla. 3d D.C.A. 1987); McFadden v. State, 424 So. 2d 918 (Fla. 4th D.C.A. 1982); Recinos v. State, 420 So. 2d 95 (Fla. 3d D.C.A. 1982); Stripling v. State, 349 So. 2d 187 (Fla. 3d D.C.A. 1977); Crutchfield v. Wainright, 803 F.2d 1103 (11th Cir. 1986).

21 Hall v. Clifton Precision Inc., 150 F.R.D. 525, 531-532 (E.D. Pa. 1993), provides an interesting, and somewhat controversial, example of such an order relating to communications between an attorney and his client in a civil deposition. In Hall the trial judge placed severe restrictions on the client’s ability to consult with his counsel during a deposition. It should be noted, however, that federal courts are not uniform in their approach to this issue; when asked to implement deposition restrictions similar to those in Hall, a Nevada federal court refused. See In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D.Nev.1998). A Florida case, Haskell Co. v. Georgia Pacific Corp., 684 So. 2d 297 (Fla. 5th D.C.A. 1996), holds that communications between a client and counsel during a break in a civil deposition are protected by the attorney-client privilege, but it does not address the question of whether such communications may be restricted by the trial court.

22 In other jurisdictions this issue has reached appellate courts in a civil context. In these jurisdictions, “courts have struggled to define if and when a court may prohibit contact between a testifying party and his counsel during [civil] trial[s].” See Cary, Rambo Depositions Revisited: Controlling Attorney-Client Consultations During Depositions, 19 Geo. J. Legal Ethics 367 (2006). Consequently, there are published opinions reversing trial courts that have prohibited lawyers from communicating with witnesses during their testimony and there are opinions affirming such orders. Compare Potashnick v. Port City Construction Co., 609 F.2d 1101 (5th Cir.), cert. denied, 449 U.S. 820 (1980) (reversing trial court’s order prohibiting counsel from communicating with client during overnight recess in civil trial), with Aiello v. City of Wilmington, 623 F.2d 845, 858 (3d Cir. 1980) (affirming order by trial judge restricting communication between counsel and his client during client’s cross examination in civil trial).

23 As previously noted, federal trial courts are not uniform in their approach to this issue, at least with respect to restrictions on civil deposition communications. Florida trial courts are likely to approach this issue differently as well. Those advocating for restriction on communications between lawyers and witnesses will find good arguments for their position in Hall v. Clifton Precision Inc., 150 F.R.D. 525, 531-532 (E.D. Pa. 1993). Those advocating against restriction on communications between lawyers and witnesses will find good arguments for their position in In re Stratosphere Corp. Securities Litigation, 182 F.R.D. 614, 621 (D. Nev. 1998).

24 See, e.g., Kingery v. State, 523 So. 2d 1199 (Fla. 1st D.C.A. 1988) (trial court refused a defense request for there to be no contact between the prosecutor and state witness over lunch break). Those who find no difficulty with lawyers communicating with witnesses during their testimony might point out that the Florida Standard Jury Instructions (Criminal) §3.10 specifically instructs that “[i]t is entirely proper for a lawyer to talk to a witness about what testimony the witness would give if called to the courtroom. The witness should not be discredited by talking to a lawyer about his or her testimony.” On the other hand, this instruction may miss the mark because it says nothing about the propriety of such communication during, as opposed to before, the witness’ testimony has begun. It is interesting to note that Florida’s Standard Jury Instructions for Civil Cases does not include a comparable instruction.

25 Perry v. Leeke, 488 U.S. 272 (1989); Geders v. U.S., 425 U.S. 80 (1976); Bova v. State, 410 So. 2d 1343 (Fla. 1982), habeas corpus granted, 674 F. Supp. 834 (S.D. Fla. 1987), judgment aff’d, 858 F.2d 1539 (11th Cir. 1988); Amos v. State, 618 So. 2d 157, 161 (Fla. 1983).

26 Leerdam v. State, 891 So. 2d 1046, 1048 (Fla. 2d D.C.A. 2004) (“Federal and Florida authorities agree that a defendant does not have the constitutional right to discuss his trial testimony with counsel while that testimony is in progress.”).

27 Perry v. Leeke, 488 U.S. 272 (1989); Bova v. State, 410 So. 2d 1343 (Fla. 1982), habeas corpus granted, 674 F.Supp. 834 (S.D. Fla. 1987), judgment aff’d, 858 F.2d 1539 (11th Cir. 1988) (“the trial court has complete discretion in the granting of and duration of trial recesses. . . however, once the court does in fact grant a recess, we find a criminal defendant must be allowed access to counsel.”).

28 Amos v. State, 618 So. 2d 157, 161 (Fla. 1993) (“[N]o matter how brief the recess, a defendant in a criminal process must have access to his [or her] attorney.”).

29 Leerdam v. State, 891 So. 2d 1046, 1049 (Fla. 2d D.C.A. 2004). It should be noted that Florida and federal law differ somewhat on this issue. The Florida Supreme Court has held that the Florida Constitution provides a broader right to counsel than the U.S. Constitution. Id. Thus, in a federal trial, unlike a Florida trial, a defendant could be precluded from speaking with his or her lawyer during a brief recess. Compare Perry v. Leeke, 488 U.S. 272 (1989) (no violation of defendant’s Sixth Amendment right to counsel when defendant was precluded from talking to his lawyer during a 15-minute recess between his direct and cross examination), with Geders v. U.S., 425 U.S. 80, 87 (1976) (defendant’s Sixth Amendment right to counsel violated when defendant was precluded from talking to his lawyer during an overnight recess between his direct and cross examination).

30 Florida appellate courts use a harmless error analysis to determine if a new trial is required in these situations. Compare, e.g., Thompson v. State, 507 So. 2d 1074 (Fla. 1987) (new trial granted where trial court prohibited defense counsel from communicating with client prior to cross examination), with Leerdam v. State, 891 So. 2d 1046 (Fla. 2d D.C.A. 2004) (new trial not warranted where trial court prohibited defense counsel from communicating with client prior to cross examination); and Wallace v. State, 851 So. 2d 216, 221 (Fla. 3d D.C.A. 2003), review denied, 860 So. 2d 980 (Fla. 2003), cert. denied, 540 U.S. 1187 (2004) (refusing to grant new trial when the record failed to suggest that the defendant, or counsel on the defendant’s behalf, wished to confer during a mid-testimony recess in which consultation was prohibited); Cabreriza v. State, 517 So. 2d 51 (Fla. 3d D.C.A. 1987) (new trial not warranted).

Judge Tom Barber is a circuit judge in Tampa, currently assigned to the criminal division. He received his undergraduate degree from the University of Florida, Phi Beta Kappa, and his law degree from the University of Pennsylvania. He is an adjunct faculty member at Stetson University Law School, where he has taught trial advocacy and complex litigation.

This column is submitted on behalf of the Trial Lawyers Section, Glenn Matthew Burton, chair, and D. Matthew Allen, editor.

Trial Lawyers