Whether they do or do not, does a conflict of interest preclude them from testimony as a witness? As I see it, there is a duty to disclose a conflict if it is a member of the protest committee, but not to be a witness. 

To strictly answer the question, the answer is "maybe." If this was a redress that involved an RC action, there is a conflict. If they have a business relationship with a party to the hearing, there is a conflict. If a party is family, there is a conflict. 

With none of those or other obvious conflicts in place, if the RC member observed in their notes that they saw boat X hit the mark, they are a non-conflicted witness to boat Y protesting boat X for hitting said mark. 

The conflict of interest provisions in  rule 63.4 apply to the protest committee, not to anyone who may be a party to a protest or a request for redress.
If a party to the protest says something like, "Of course the PRO is prejudiced against me, he knows that I'm having an affair with her husband!", then the protest committee can consider that statement when assigning weight to the PRO's testimony. Otherwise, I don't think that there is a "conflict of interest" in allowing testimony from any race official or competitor.

I agree with Clark. There is no formal prohibition of someone with a conflict giving testimony as a witness in a protest hearing (consider that we regularly hear witness testimony from people who are crew on one of the parties' boat). Only PC members with a conflict must declare it as soon as they know of it, and are prevented from participating in a hearing (in most cases - see RRS 63.4, especially sections b and d).

The PC probably wants to try to be sure that no part of the protest will turn into a redress request based on an improper action or omission on the part of the RC (not because it's illegal, but because they should probably become a party), and if there are other factors that may color a witness' testimony, the PC should take those factors into account when it considers how much weight to give to the testimony, but if they are called as witnesses by a party, they must be heard.

If the question is simply whether or not the RC member has a conflict simply by virtue of being on the RC, the answer is no. In fact, those people can be among the best witnesses; they are often in a good position to see what happened (the PC should confirm this, as they should with any witness), they're often not doing much else but watching (which the PC should also confirm), and they don't have a dog in the fight (there is no conflict at all), so their testimony is likely unbiased.

As with any other witness, the person who didn't call them must be given the chance to question them first, and then the person who did call them (if the PC finds out they saw the incident and calls them independently, then the party who is most disadvantaged by their initial testimony should probably be given first crack at questioning them. That's not a rule, but it seems the most fair).

John M re: “As with any other witness, the person who didn't call them must be given the chance to question them first, and then the person who did call them”

Great post John, only one thought though. 

Although it is good practice to allow the person who didn’t call the witness ask questions first, since Appx M is only advisory, “must” above might be too strong?

I think the only “musts” relative to witnesses and questioning are in 63.3 and 63.6. A party may question any witness, but the order is not dictated. 

 Also, the only Part 5 rule precluded from change by Si/NOR is 63.4, so I think custom hearing procedures can be defined by the OA in those race documents. 

Thanks, Angelo, for the kind words. Concerning your thought, you’re right that “must”, in the sense of “compelled by the text of the rules” is too strong. However, that order of questioning is recommended by (as you note) Appendix M, as well as both US and World Sailing’s judges’ manuals, every senior judge I’ve heard address the subject, and, given the importance of not leading anyone’s testimony (or letting anyone else do so), simple common sense, so until someone comes up with an awfully good reason to change that order, I’m going to stick with it, and recommend that others do so too.

No argument that it definitely is best practice and wise advice. 

Here’s a question:  

A PC allows the caller of the witness to ask questions first. 

Is this …

As I said, I agree that the order of questions isn’t compelled by the rules, so my own answer to your questions is no, no, and no. What’s more, in the latter two cases, it’s not a problem that an appeal or reopening could fix, even if you could find a way to justify them. The PC that allows a party to lead his or her own witness has not only allowed, but encouraged the presentation of testimony that’s less reliable. The committee will have to take that into account when it evaluates the fact value of that testimony, but as far as the doubt is concerned, that horse has left the barn. Reopening a hearing won’t fix it, and appeals committees don’t find facts. For that reason, while allowing a party to lead a witness isn’t illegal, it’s a really bad idea.

A very old and experimented judge told me years ago: ""if you dont trust a race officer it is impossible to set a regata"" 

John, I think you’re right again and did a nice job explaining it. 

Angelo Guarino

asked Created: Yesterday 02:36

I think the issue boils down to what happens when a witness's testimony is led by excessive leading questions?

The problem, when this happens is that you may not be able to get the genie back in the bottle:  the witness has given his 'tainted' testimony:  no matter how much you, or the other party cross examines, the witness may be unlikely to back down on what he has been led to say.

Note that real live lawyers and judges draw some very fine lines about what is 'leading' and what is not, and what is excessive leading and what is ok, incidental or inadvertent.  It's best to stop leading questions, but without stifling too much a party in developing their case, and without creating an image of excessive and inappropriate formalism.

In deciding whether allowing leading questions was 'improper', a protest committee might be guided by the Judges Manual K29.9, that an act or omission is not improper if it is not contrary to an express rule, or the protest committee might not.

In the case of an egregious leading (which out of order questioning might not get as far as) think that an appeals committee might not feel bound by the JM.  I know that a party can't appeal facts found, but they can appeal against the procedures of a protest committee that failed to find relevant facts.  If the problem was glaringly obvious, particularly if the protest committee in its appeal comments expressed doubt, then an appeals committee just might uphold an appeal and direct a re-hearing, perhaps with an experienced judge, who might be able to obtain more satisfactory testimony.

John re: “…draw some very fine lines about what is 'leading' and what is not, and what is excessive leading and what is ok, incidental or inadvertent.  It's best to stop leading questions, but without stifling too much a party in developing their case, and without creating an image of excessive and inappropriate formalism.”

This reminds me of a hearing in which I was the protestor.  The Chair was an experienced judge, but I felt that the Chair was excessive in their disallowance of “leading questions”.  Nearly each question from both parties was interrupted and asked for rephrasing (probably over stating that, but such is long term memory) … which created a stilted and awkward proceeding. On top of that, the Judge wouldn’t allow me to site rules as I was describing the incident, stating that was only for my closing statement. 

These both combined to create a frustrating experience where I found it difficult to keep my train of thought and keep my points in order.  

I often reflect back on that experience when I’m on the other side of the table when  deciding when and when not to step in and redirect how a party is framing questions.