These are some of the best lines that Judge Kleinfeld has written in a long time. And that's saying a lot, because he writes pretty darn well.
He's talking about an order by the district court (Judge Jensen, up in Oakland) that barred defendant's counsel from talking to his client during an overnight recess. Which was designed to avoid any influence on the defendant's testimony, but which nonetheless directly collided with the defendant's Sixth Amendment right to counsel. Here's what Judge Kleinfeld said regarding whether this order was constitutional:
"This is a difficult question. Cross examination best exposes the truth when a witness must answer questions unaided. Coaching may vitiate its value. But it is hard to see how a defendant and his lawyer can communicate without implicit coaching. The Seventh Circuit suggests that 'the judge may instruct the lawyer not to coach his client' but may not prohibit discussion of the client’s testimony. But that is not a workable rule, because coaching is implicit in any discussion of a defendant’s testimony, even if the defendant’s lawyer tries his best to avoid coaching."
That seems exactly right to me. One might well be able to find fault with the rule that Judge Kleinfeld accordingly adopts -- which permits brief no-discussion orders (e.g., during recesses) but not overnight bans -- which, like any bright-line rule, is both over- and underinclusive. But his insight regarding the inevitable nature of coaching as inherent in virtually every meaningful attorney-client communication (particularly during trial) seems spot on.
I wrote an entire law review article in the Kentucky Law Journal ("Coaching Witnesses") with my colleague Fred Zacharias on this precise topic, and I don't think that anything that I wrote anywhere in the article is as good as the paragraph by Judge Kleinfeld. Great job, Andrew.
(Two other brief points. First, I'm only speaking for myself: Fred wrote much better stuff in the article than I did. Second, Judge Kleinfeld's opinion is great, but it did take him over a year and a half after the oral argument to write this 21-page missive. That's a lot of time. Even for a great, and somewhat difficult, opinion.)
