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Dimitry K., Esq.
Dimitry K., Esq., Attorney
Category: Legal
Satisfied Customers: 41221
Experience:  Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.
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Civil action: If a witness is recruited to gather evidence

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Civil action: If a witness is recruited to gather evidence for a party preparing to file a civil actio-- before the defendant is even aware of any planned action--does that make the witness an "agent" of the plaintiff; and does that role change the witnesses standing as a witness? Does it affect discovery; admissability of evidence; etc?

Thank you for your question.

If a witness is tasked to gather evidence for one side or another, the side that tasked the witness with this project is essentially supervising his behavior. The witness bcomes the agent for that party, be it the plaintiff or the defendant. The role does not change, unless the opposing party also designates that person as their own witness. It does not affect discovery or admissibility but it can affect whether or not the witness can be found credible or if that witness can be permitted to speak since by engaging in additional tasks, they may be shown to be tainted or show bias to one side or another.

Good luck.

Customer: replied 3 years ago.

So what if she is also an intended witness for the other side--although, obviously a hostile witness?

Rick,

That would mean that she could be questioned differently on cross-examination (she could be asked leading questions, for example), but it would not affect other points of discovery.

Customer: replied 3 years ago.

Can you clarify what you meant when you said "unless the opposing party also designates her as their witness" in you initial response?

Rick,

Sure thing, I would be happy to clarify. I was referring exactly to this cross examination I defined above. A witness for both sides can be questioned differently while on th stand depending for which side the witness is currently testifying. But it would not affect the discovery or information gathering.

Good luck.

Customer: replied 3 years ago.

Leading questions only on direct, or can we ask leading questions on cross, when she is testifying for plaintiff?

A witness for both sides tends to be asked to take the stand twice. If asked to testify by plaintiff, plaintiff is barred from asking leading questions on direct, but defendant is free to do so. Then if testifying for defendant, defendant is barred from asking but plaintiff can do so.

Good luck.

Customer: replied 3 years ago.

Just wanted to clarify.


 


As far as bias...what would we have to do to keep the witness off of the stand due to bias, taint, etc?

Rick,

The opposing party may use bias to discredit the witness and ensure that the judge or the jury not take what the witness says under serious consideration. If the witnes is shown to be biased, the testimony may be ignored or not taken seriously.

Good luck.

Customer: replied 3 years ago.

So, we can't keep her from testifying, only show bias to discredit her.


 


Lastly, if said agent/witness violated the law in collecting evidence requested by plaintiff, does that make plaintiff equally responsible, and the evidence inadmissable? Does the counsel for plaintiff have to be involved in order for it to be inadmissible? Is counsel also considered in a supervisory capacity if Plaintiff recruits her to act as his agent?

Rick,

Exactly, you can try to discredit but you cannot keep her off the stand.

The subsequent question you posted is far more complex than a yes/no answer. The general answer is if law is violated in obtaining evidence, then the evidence may be deemed to have come from a 'poisonous tree' and is therefore inadmissible. Proving it is up to the opposing party. It does not make the opposing party equally responsible unless it can be shown that the party knew of the violation and either engaged in a criminal enterprise to get it done, or otherwise supported the actions. The counsel does not have to be involved, and counsel may or may not be in a supervisory capacity depending on instructions. All that has to be proven, none of that is a straight answer in this instance.

Customer: replied 3 years ago.

so if plaintiff asks witness/agent to obtain specific evidence and witness/agent does so by violating the law, does it or doesn't it make plaintiff equally guilty from the standpoint of this action; regardless of plaintiff's ignorance of the requirement to violate the law in order to obtain the evidence?

Rick,

You are asking me to answer your question based on a lot of hypotheticals. If a planitff asks someone to obtain evidence for him, there is no evidence as yet that the plaintiff asked him to break the law--that has to be shown and proven. Simply telling him to obtain evidence is not sufficient to claim a violation took place. For example, if I tell you to get me some bread, and you go to the bakery, rob them, and bring me back bread, that does make me responsible for your actions, since I never told you to rob someone by doing so.

Good luck

Customer: replied 3 years ago.

Here's the rub: the specific law broken is the DMCA. However, because of ignorance on the part of witness and plaintiff, they do not know that they broke a pretty serious law and because plaintiff asked her to do so in order to help him get the $125K judgment he's after, there is a substantial jail term involved. And the evidence is inadmissible.


 


However, you are saying that intent to break the law must be involved. I've always heard that ignorance of the law is no defense.

Rick,

We are discussing it from two different points. Igonrance of the law is no excuse, but telling someone to break the law creates the intent that the law was broken.

Case in point--if I tell you to get me bread and you rob the store, the violation was yours and not mine since there are perfectly legal ways of obtaining bread. So my ignorance that you would violate the law is my defense. Now, if I tell you to get evidence, and you do so by breaking the law, if there are perfectly legal way of obtaining that evidence which you chose to not pursue, the same defense and protection come into play. Here, the ignorance of the law is not the defense, the ignorance of your actions is the defense. If there are only illegal ways of obtaining this evidence, then arguably there is a defense and criminal action, but please evaluate whether or not someone was told to break the law, or pursue what were illegal means even if not known to be illegal.

Good luck.

Customer: replied 3 years ago.

There was no legal means, that's my point. But they are both ignorant of that fact.


 


i.e. Suppose witness/agent lived in defendant's home 2 years prior to defendant moving in, but had moved out a year before. Witness still has her key and the landlord never changed the locks. Witness tells plaintiff she can obtain a notebook from defendants home; plaintiff says do it. ASSUME that both are ignorant and think that because she has a key, it isn't breaking and entering, and that is the only law they she could be prosecuted for. We know she's in trouble, but they are clueless. That's about the size of it.

Rick,

My apologies but as a courtesy to you because we have worked together I have really gone off-scope with your current question, which is not related to the witness question that you posted initially. While I would be happy to continue this discussion in a new thread, since this new question had nothing to nothing to do with your concerns about witnesses and how they are treated, I would respectfully XXXXX XXXXX we create a new post, as that is really site policy. Thank you.
Customer: replied 3 years ago.

Although the example is off-topic, the question is not. I'm giving you a scenerio and asking if the plaintiff is equally responsible because he specifically told the witness/agent to get said evidence. My initial question asked about the effect of plaintiff/witness relationship (agent) and its affect on evidence obtained.


 


I've had my account suspended for doing what you are asking me to do. I am doing things exactly as I was told in an email in order to get my acount reinstated.

Rick,

I do apologize for the difficulty you have been exposed to by site moderators. I have been given contrary regulations, and that each post should generally be one question per site posting. This is not me being difficult, I am simply following my own regulations. In addition I believe I have answered your question, specifically that ignorance or knowledge is what makes the claim valid or not. My answer would not change with your hypothetical issue, since the first party never told the second to break in.

Good luck.

Customer: replied 3 years ago.

My last hypothetical was to show you how there is no legal way to get the evidence. So the act of requesting it, was asking her to break the law. Just because they are both ignorant of the law is not a defense.


 


I you aked somebody to grab you a loaf of bread off of a display shelf outside of a store, and you had no idea it was stealing from outside the store, that's okay? So a prosecutor would have to prove you did know it was against the law?

Rick,

I politely disagree that there was no 'legal' way to get the evidence. I can come up with a handful of perfectly legal ways that this evidence could be obtained without it being illegal, which would deny the claim that someone was coached or told to break the law. If I knew that my friend held the book which was given to her early and I could get it, obtaining it would be legal. If I had a key to a security deposit box under both names that held the book, I could likewise remove it. Neither is illegal.

If I told you to 'grab' the loaf of bread from the shelf without paying, that is different because there is a direct law of removing an item without paying for it (shoplifting). There is no law about obtaining 'evidence' if the manner of obtaining evidence is not defined.

Take care!

Customer: replied 3 years ago.

Okay, mabe I'm overcomplicating it.


 


Assuming that plaintiff did know it was illegal for witness/agent to obtain specific evidence using the means she did, is plaintiff also responsible because she is his agent?

Rick,

Even if known, it has to be proven. If it can be proven, then it could invalidate the evidence and make both potentially pursued criminally. But again, evidence to culpability is a requirement.

Good luck.

Dimitry K., Esq. and 6 other Legal Specialists are ready to help you
Customer: replied 3 years ago.

Okay, now we're getting somewhere.


 


Now I have a new question.

Customer: replied 3 years ago.

Do I have to file some motion asking the court to rule or recognise this witness as an agent of plaintiff?

Thank you for your follow-up, Rick.

No motion is required but you can ask that the judge take "formal notice" that the witness is an agent of plaintiff. It's a similar avenue you can pursue if you wish to treat her as hostile should she speak for you.

Rick, I am logging off currently because Rosh Hashanah is starting. If you have any further questions, I promise to reply but after dinner with the family. And if you yourself practice, Shana Tovah to you.

Customer: replied 3 years ago.

Should I do this at trial and/or pretrial hearings, or in any motions that may pertain to her?

Thank you for your follow-up, Rick.

This motion is done during trial.