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Attorney-Expert Witness Contact Permitted During Break in Trial

The Pennsylvania Superior Court reversed a criminal contempt order issued by a Philadelphia Court of Common Pleas trial judge and ruled that an attorney is permitted to speak with his expert witness during a break from direct examination. Yoskowitz v. Yazdanfar, 900 A.2d 900 (Pa. Super. 2006).

In Yoskowitz, Judge Eugene E.J. Maier issued a criminal contempt order against F. James Gallo, Esquire for talking to his expert witness during a break in testimony. This was one of two criminal contempt orders issued by Judge Maier against Mr. Gallo.

Mr. Gallo was initially cited for contempt after seeking the assistance of plaintiff's counsel in operating the video/DVD equipment he sought to use while questioning his expert witness. Plaintiff's counsel objected and, after a sidebar, Judge Maier ruled that Mr. Gallo's request was improper. Mr. Gallo then commented on the substance of the sidebar in front of the jury prompting the first contempt ruling.

Mr. Gallo then indicated that he was finished with the direct examination of the expert witness and the court took a brief break. During the break, Mr. Gallo had a conversation with his expert witness. The technical staff then arrived to help operate the video/DVD equipment and Mr. Gallo's request to continue his examination was granted. Mr. Gallo's discussion with the expert witness during the break prompted the second contempt ruling that is the subject of the appeal.

Judge Maureen Lally-Green of the Superior Court noted that there was little case law on the issue and the Pennsylvania Rules of Evidence do not address the right of a witness to consult with counsel prior to cross-examination. Judge Lally-Green turned to 42 Pa.C.S.A. §4132(3) regarding criminal contempt on the basis of misbehavior. According to the section, there must be proof beyond a reasonable doubt that there was "misconduct; in the presence of the court; committed with the intent to obstruct the proceedings; which obstructs the administration of justice." Judge Lally-Green opined that "the record before us, in light of relevant case law, and custom, does not support a conviction for criminal intent" and the Superior Court reversed the criminal contempt order.

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