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A criminal trial is going on. Andy the Attorney asks Walter the Witness some questions. After a while, Walter realizes he's been an idiot, and says he wants his Lawyer Larry.

How does the court proceed? Do they set up a second trial with Walter and Larry before they can proceed with the first trial? Or what?

Two examples:

  1. Walter said one thing (which wasn't exactly true), and Andy brought up evidence that Walter was lying. Walter would rightly like to consult his lawyer Larry at this point before saying anything else.
  2. Walter idiotically admits to a crime while serving as a witness. Walter would obviously want to consult with his lawyer Larry at this point, to amend his original statements.

I am not a lawyer, so sorry if I'm completely ignorant of witness/court proceedings.

2 Answers 2

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Generally speaking, witnesses are not legally represented at trial, unless they are also parties. While a witness may choose to seek legal advice about a request or order they have received to give evidence, they would generally be expected to take this opportunity before they actually show up at trial.

A witness examination would not normally be adjourned because a witness said something damaging to their own credibility or to one party’s case, and would like to pause and obtain legal advice. One goal of cross-examination is to expose unreliable evidence by obtaining this kind of tactical advantage over a witness. It is up to the party whose case was damaged to try to fix the problem in re-examination or reply evidence. That party may not be particularly interested in protecting the witness’s personal interests.

There may be exceptions in specific factual situations, when it becomes clear that a witness does not understand their right to object to giving evidence on the grounds of self-incrimination or some other privilege. A judge may choose to halt further questioning of the witness if there is a real risk of a mistrial or some other procedural unfairness, which can be addressed without unfairly depriving the cross-examiner of their opportunity to challenge the evidence.

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  • >"which can be addressed without unfairly depriving the cross-examiner". Dare I ask for specifics of what this might look like? Will the trial ultimately be halted? Or will the witness be forced to finish the session, and then he has to go off on his own tangential case?
    – chausies
    Commented Mar 10, 2023 at 7:20
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    One approach would be to adjourn the case for a few hours or a day, possibly interposing other witnesses during that time, while the witness gets urgent legal advice about privilege. Once the witness has had a chance to properly articulate a legitimate objection, the judge can control the cross-examiner and limit their questions to relevant topics which are not protected by privilege.
    – sjy
    Commented Mar 10, 2023 at 8:57
  • This is fascinating... suppose that a witness is actually complicit in a crime, but there was no obvious evidence up front that they were anything more than a bystander. During discovery, the prosecution finds circumstantial evidence that the witness might know more than they are letting on, but not enough for law enforcement involvement. Maybe the witness is hoping to get away with some "light perjury", but on cross examination the lawyer starts poking hard on very specific dates and times... could the witness refuse to answer any more questions? What happens to the trial?
    – Blackhawk
    Commented Mar 10, 2023 at 17:19
  • ... "[A] witness may choose to seek legal advice about a request or order they have received to give evidence [full stop]" ... So that's a yes? The Judge is going to get pissed at some point or what? "they would generally be expected to take this opportunity before they actually show up at trial" because the prosecution has already given me every question that they're going to ask, in writing?
    – Mazura
    Commented Mar 10, 2023 at 23:56
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    @Blackhawk The witness can refuse to answer incriminating questions. If the unexpected evidence is harmful to the defence then they might seek a mistrial for prosecutorial non-disclosure, but if the prosecutor is not at fault, it’s more likely that the trial would simply continue, and the jury would deliver its verdict based on the evidence that came out in court.
    – sjy
    Commented Mar 11, 2023 at 0:45
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Your question doesn't fully investigate Walter's role in the outcome. This is important because US courts play the role of arbiters between parties with specific interests, unlike inquisitorial systems where judges are theoretically impartial. The main fact to consider is that the 5th Amendment has a clause "nor shall be compelled in any criminal case to be a witness against himself" which we understand to mean that you can refuse to testify if the testimony could be used against you in a criminal case – you can "take the Fifth".

If Walter concludes that something he says may be used against him in a criminal case, he has the right to refuse to testify. The courts have repeatedly ruled that an assertion of the right to silence must be clear and unambiguous, not vaguely hinted at. A witness must repeatedly assert that right for each relevant question. One limit on your right to silence is that a defendant has a Sixth Amendment right to cross-examination, so if Walter has testified against the defendant, he cannot invoke the right to silence when the defendant asks questions that challenge his testimony. Walter therefore has to understand the long-term consequences of his testimony, and not say something that will lead him to confessing to a crime under cross-examination.

The government prosecutor can apply to the court for an order of immunity, the consequence of which is that Walter's testimony cannot be used against him in a prosecution. Now Walter must testify or face contempt charges.

A problem is that Walter's testimony must not be false, since the grant of immunity does not immunize against prosecution for perjury in that testimony, see for example US v. Apfelbaum. Walter must therefore testify carefully. Therefore, even with a grant of immunity there is still some risk. Ordinarily the risk is negligible if you just "tell the truth", but Walter cannot assume that the defendant's attorney is also his attorney. As stipulated, Walter is an idiot, and he may not be competent to cleverly frame his response to avoid a perjury charge (e.g. Bronston, Clinton). This can be a problem for Walter if he has limited competence in courtroom English and cannot articulate his personal understanding of the intent of a question (see for example the case in Shuy Language crimes where a witness was convicted for perjury based on his misunderstanding of what the prosecutor was "really asking"). Walter can ask for clarification, and with the assistance of an attorney looking out for Walter's interests could answer the question appropriately.

Walter has to communicate to the judge something about his concern over self-incrimination – he has to first assert the right, before he can be protected.

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    Presuming that Walter starts pleading the fifth and refuses to answer any more questions (and leaving aside what happens to him), what would happen in the trial? Would the witness be dismissed and the jury instructed that his refusal is legal and nothing should be inferred from him exercising his right against self-incrimination? Would the judge make the witness continue to stay and respond to each of the prosecution's questions? What if the prosecutor asks something obviously factually true that was established previously - can the witness categorically refuse to answer?
    – Blackhawk
    Commented Mar 10, 2023 at 17:26
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    Since Walter is not on trial, the jury won't be instructed about his invocation of silence. If Walter's invocation of his right to silence is clear and articulate enough then the judge would presumably "accommodate". The tendency would be to compel an answer given the immunity order, but that tendency cannot overcome his 5th amendment right. He should have an attorney, which implies a delay in the process in order for Walter to get a lawyer.
    – user6726
    Commented Mar 10, 2023 at 17:47
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    If you know of or should ever come across an example of a witness pleading the fifth - especially if it is recorded - would you mind dropping a link/reference here? I would find that quite instructive. I appreciate your clarifications!
    – Blackhawk
    Commented Mar 10, 2023 at 17:50
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    Here's a video of such a case at a trial (Hall at Derek Chauvin trial): youtube.com/watch?v=WUxLpEbxlps
    – user6726
    Commented Mar 10, 2023 at 18:23

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