§ 20.07 PREPARATION ("COACHING") OF WITNESSES

• Jurisdiction: United States

§ 20.07. PREPARATION ("COACHING") OF WITNESSES

Under the adversary system as practiced in this country, counsel is allowed to interview witnesses prior to trial. Indeed, failure to interview an important witness may constitute incompetence. In a criminal trial, such failure may violate the Sixth Amendment right to effective assistance of counsel.⁶⁰ Thus, witness preparation, also known as "woodshedding" or "horse shedding," is an accepted feature of trial.⁶¹ Nevertheless, there are important limits; an attorney cannot ethically assist in the fabrication of testimony. Model Rule 3.4(b) states that a lawyer shall not "falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law." Consequently, an attorney may be sanctioned "when she influences the witness to alter testimony in a false or misleading way."⁶²

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Notes:

^[60] See United States v. Rhynes, 218 F.3d 310, 319 (4th Cir. 2000) ("Thorough preparation demands that an attorney interview and prepare witnesses before they testify. No competent lawyer would call a witness without appropriate and thorough pre-trial interviews and discussion. In fact, more than one lawyer has been punished, found ineffective, or even disbarred for incompetent representation that included failure to prepare or interview witnesses.").

^[61] The Horse Shed, McElhaney's Trial Notebook 31 (2d ed. 1987).

^[62] See Ibarra v. Baker, 2009 U.S. App. LEXIS 16753, at *18 (5th Cir...