Thread by @aburkhartlaw

All right folks, I went down this legal rabbit hole. In this thread is what I was able to find relating to Judge A’s admonition to Johnny at the end of the day yesterday that he is not allowed to discuss his testimony with anybody to include his attorneys.

https://twitter.com/LauraBockov/status/1517469907230896129

The rule has evolved primarily in the context of criminal cases, which evaluate the right to counsel guaranteed a criminal defendant under the 6th Amendment. There is generally no 6A right to counsel in a civil case, only a 14th Amendment right to due process.

What rights are required under the 14A for a fair civil proceeding depends on the nature of the proceeding, the rights at issue, and the risk of an erroneous deprivation. These factors come from Mathews v. Eldridge, a landmark due process case.

supreme.justia.com/cases/federal/…

So, the starting point is understanding that, in general, criminal defendants have a much stronger right to counsel than parties in civil cases.

In Geders v. U.S., the US Supreme Court held that prohibiting an attorney from conferring with his client during an overnight recess between his direct and cross examinations deprived the defendant of his Sixth Amendment right to counsel.

supreme.justia.com/cases/federal/…

It compared the order to the practice of sequestering witnesses to prevent them from tailoring their testimony. Because a criminal defendant needs to confer with his attorney to develop evidence, discuss strategy, etc., he can’t be isolated from his lawyer like other witnesses.

But subsequently in Perry v. Leeke, the U.S. Supreme Court upheld an order prohibiting the defendant from talking with his attorney during a 15-minute recess between his direct and cross examinations.

supreme.justia.com/cases/federal/…

“[W]hen he assumes the role of a witness, the rules that generally apply to other witnesses -- rules that serve the truth-seeking function of the trial -- are generally applicable to him as well.” They distinguished the brief recess from the overnight break in Geders.

They noted that there is no rule *requiring* consultations with a party witness during brief recesses but held that it’s a matter of discretion for the judge to preserve the truth-finding function of the trial.

From this, it's pretty clear that if a criminal defendant with strong constitutional rights to counsel can be barred from conferring with his attorney during his testimony, there is pretty much no doubt that these restrictions can be imposed on a civil litigant.

In Johnny’s case, we are headed into a long recess (3 days), in a civil case, in which the order prohibits him from discussing “his testimony” but not other aspects of his case with his attorneys.

Whether and to what extent this means he can confer with his attorneys about his redirect examination is rather unclear. Redirect is still “his testimony,” but it will also include additional evidence and involve matters of strategy that are not “his testimony.”

I can only assume that there is some kind of order in limine that has been entered applying the exclusion rule to party witnesses. We do know that there *is* a witness exclusion order, because it was invoked to disqualify Gina Deuters as a witness.

And if there has been a motion in limine, there has presumably been a hearing on it and an understanding developed of how it applies. We are just at a disadvantage of not knowing the precise nature and scope of the exclusion order and the litigation surrounding it at this stage.

I would not rule out the possibility that this is actually a ruling that *Johnny’s* team sought out to prevent *Amber* from conferring with her lawyers during her testimony. We know that Amber doesn’t care about rules but attorneys can lose their licenses for misconduct.

Certainly, neither Johnny nor his team appeared resistant to the admonishment at all, so it did not appear to come as a surprise to them. This suggests it’s either normal practice in VA or it’s been hashed out ahead of time and the scope of it will be understood by both teams.

So, in summary, the order appears to be within Judge A’s discretion to preserve the truth-finding function of the trial. It’s limited to his testimony and doesn’t prohibit them from discussing other things. We don’t know exactly how much room they have to discuss his redirect.

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