Trial Testimony - Right to Confer with Counsel
The trial judge has the right, in the exercise of his discretion, to prohibit a witness from speaking to his attorney during the time that he is testifying on direct or cross-examination, and this prohibition may extend to a recess period or meal break.[1]
The Court of Appeals has held [2] that precluding a defendant from consulting with his attorney during an overnight recess violated the right to the assistance of counsel. The Court of Appeals has distinguished those cases upholding a temporary and limited ban on discussions between defendant and attorney during a brief recess. The trial court has the discretion to impose a ban on conversation between a defendant and his lawyer during a brief recess between direct and cross-examination or during a recess during defendant's cross-examination. However, an overnight prohibition of consultation between attorney and client is impermissible. It is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess. The fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right. The critical factor in determining whether a violation of the right to counsel occurred is the length of time dividing the defendant's access to counsel contemplated by the trial court's ruling.[3]
[1] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-207.
[2] In People v. Blount, 77 N.Y.2d 888, 568 N.Y.S.2d 908, 571 N.E.2d 78, affg. 159 A.D.2d 579, 552 N.Y.S.2d 441, the Court of Appeals held that precluding a defendant from consulting with his attorney during an overnight recess violated the right to the assistance of counsel. During the cross-examination of the defendant, the trial court directed an overnight recess, and directed defense counsel, over his objection, not to discuss the defendant's testimony with the defendant “at all”. This instruction violated the defendant's right to the assistance of counsel.
[3] People v. Joseph, 84 N.Y.2d 995, 646 N.E.2d 807, (1994).
In Turner v. Valdespino, 140 A.D.3d 974, 34 N.Y.S.3d 124 (2d Dept., 2016) a custody proceeding, the mother's hearing testimony spanned several court dates and took place over a period of months. At the end of four hearing dates, while the mother's testimony was continuing, the Family Court instructed the mother not to discuss her testimony with her attorney during the recess. One of these recesses was overnight, two recesses were for approximately one week, and one recess was, because of adjournments, for more than three months. In reversing the order which granted the father custody, the Appellate Division held that the Family Court violated the mother's fundamental due process rights when it instructed her not to consult with her attorney during recesses, which resulted in her being unable to speak to her attorney over extended periods of time. Although the issue was unpreserved for appellate review, it exercised its power to reach it in the interest of justice because the Family Court's conduct deprived the mother of due process.
In re Jaylynn R., 107 A.D.3d 809, 810, 811, 967 N.Y.S.2d 129, 130 (2d Dept., 2013) the Appellate Division held that Family Court violated the mother's due process rights when it instructed her not to consult with her attorney during a two-month adjournment of the fact-finding hearing.
The trial judge has the right, in the exercise of his discretion, to prohibit a witness from speaking to his attorney during the time that he is testifying on direct or cross-examination, and this prohibition may extend to a recess period or meal break.[1]
The Court of Appeals has held [2] that precluding a defendant from consulting with his attorney during an overnight recess violated the right to the assistance of counsel. The Court of Appeals has distinguished those cases upholding a temporary and limited ban on discussions between defendant and attorney during a brief recess. The trial court has the discretion to impose a ban on conversation between a defendant and his lawyer during a brief recess between direct and cross-examination or during a recess during defendant's cross-examination. However, an overnight prohibition of consultation between attorney and client is impermissible. It is the defendant's right to unrestricted access to his lawyer for advice on a variety of trial-related matters that is controlling in the context of a long recess. The fact that such discussions will inevitably include some consideration of the defendant's ongoing testimony does not compromise that basic right. The critical factor in determining whether a violation of the right to counsel occurred is the length of time dividing the defendant's access to counsel contemplated by the trial court's ruling.[3]
[1] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-207.
[2] In People v. Blount, 77 N.Y.2d 888, 568 N.Y.S.2d 908, 571 N.E.2d 78, affg. 159 A.D.2d 579, 552 N.Y.S.2d 441, the Court of Appeals held that precluding a defendant from consulting with his attorney during an overnight recess violated the right to the assistance of counsel. During the cross-examination of the defendant, the trial court directed an overnight recess, and directed defense counsel, over his objection, not to discuss the defendant's testimony with the defendant “at all”. This instruction violated the defendant's right to the assistance of counsel.
[3] People v. Joseph, 84 N.Y.2d 995, 646 N.E.2d 807, (1994).
In Turner v. Valdespino, 140 A.D.3d 974, 34 N.Y.S.3d 124 (2d Dept., 2016) a custody proceeding, the mother's hearing testimony spanned several court dates and took place over a period of months. At the end of four hearing dates, while the mother's testimony was continuing, the Family Court instructed the mother not to discuss her testimony with her attorney during the recess. One of these recesses was overnight, two recesses were for approximately one week, and one recess was, because of adjournments, for more than three months. In reversing the order which granted the father custody, the Appellate Division held that the Family Court violated the mother's fundamental due process rights when it instructed her not to consult with her attorney during recesses, which resulted in her being unable to speak to her attorney over extended periods of time. Although the issue was unpreserved for appellate review, it exercised its power to reach it in the interest of justice because the Family Court's conduct deprived the mother of due process.
In re Jaylynn R., 107 A.D.3d 809, 810, 811, 967 N.Y.S.2d 129, 130 (2d Dept., 2013) the Appellate Division held that Family Court violated the mother's due process rights when it instructed her not to consult with her attorney during a two-month adjournment of the fact-finding hearing.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
|
Joel R. Brandes Consulting Services, Inc.
2881 NE 33rd Court (At Dock) Ft. Lauderdale, Florida 33306. Telephone (954) 564-9883. email to:[email protected]. Joel R. Brandes Consulting Services, Inc is a Florida corporation which is owned and operated by
Joel R. Brandes of The New York Law Firm of Joel R. Brandes. P.C. |
This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
|