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Univ. of South Carolina School of Law

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Saturday, February 26, 2011

Silence, Please!: Court Of Appeals Of Wisconsin Finds Court Can Preclude Attorney From Sharing Prior Testimony With Future Witnesses

Wisconsin Stat. Section 905.15(3) provides that

The judge or circuit court commissioner may direct that all excluded and non-excluded witnesses be kept separate until called and may prevent them from communicating with one another until they have been examined or the hearing is ended. 

But does this Section give courts the power to prevent an attorney from discussing with a nonparty witness the testimony of other witnesses? According to the recent opinion of the Court of Appeals of Wisconsin in State v. Copeland, 2011 WL 659381 (Wis.App. 2011), the answer is "yes."

In Copeland, Derek Copeland was convicted by a jury of one count of first-degree sexual assault of a child. At trial, Copeland was represented by Peter Thompson, and, after he was convicted, Copeland filed a postconviction motion alleging ineffective representation by Thompson and prosecutorial misconduct in that the State failed to provide exculpatory evidence. The circuit court thereafter held a 

hearing at which time Thompson, along with all other witnesses subpoenaed, was sequestered.

Thompson had yet to testify when the court adjourned the hearing until January 6, 2009. Copeland's postconviction attorney moved to clarify the scope of the sequestration order to specify that the prosecutor was not to discuss with Thompson the testimony given at the hearing that day. The prosecutor opposed the motion, questioning whether a court could prohibit an attorney from talking with a potential witness in preparation for that witness's testimony....
In a written decision, the circuit court denied Copeland's motion to prohibit the prosecutor from discussing hearing testimony with Thompson. The court concluded that it lacked the authority to issue an order limiting communications between a sequestered witness and a prosecutor.

Copeland thereafter appealed, claiming that Wisconsin Stat. Section 905.15(3) gave the court power to issue such an order. The Court of Appeals of Wisconsin agreed, finding that although the language of the Section

does not explicitly reference communications between witnesses and attorneys, the only reasonable reading of the statute is that the court may restrict those communications when necessary to prevent indirect communications, sharing one witness's testimony with another....There is no practical difference between an attorney sharing the testimony of a witness with another witness who has yet to testify and the same two witnesses communicating directly with each other. The result is the same: the second witness receives information about the first witness's testimony. The second witness might then tailor his or her testimony to that of the first witness, potentially frustrating the fact finder's ability to discern the truth. Without the authority to restrict attorney-witness communication in these circumstances, courts would be powerless to stop noncomplying attorneys from circumventing sequestration orders.

-CM

http://lawprofessors.typepad.com/evidenceprof/2011/02/615-state-v-copelandslip-copy-2011-wl-659381wisapp2011.html

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