The Ethical Preparation of Witnesses
| Publication year | 2013 |
| Pages | 51 |
By Michael H. Berger
Articles Professional Conduct and Legal Ethics
Professional Conduct and Legal Ethics articles are sponsored by the CBA Ethics Comm Articles published here do not necessarily reflect the legal interpretation of the Committ
Coordinating Editor
Stephen G. Masciocchi, Denver, of Holland & Hart LLP—(303) 295-8000, smasciocchi@hollandhart.com
About the Author
Michael H. Berger is a partner in the law firm of Husch Blackwell LLP. He is a member of the Colorado Supreme Court Standing Committee on the Colorado Rules of Professional Conduct and a member of the CBA Ethics Committee.
This article addresses methods and techniques of preparing witnesses to testify truthfully and effectively and considers the legal and ethical constraints on witness preparation.
A multitude of seminars, CLE programs, and articles address opening statements, crossexamination of witnesses, closing arguments, and other aspects of the trial process, but very few explore the preparation of witnesses. That said, few would dispute that the preparation of witnesses is an essential part of the trial process or that unethical preparation of witnesses may, at a minimum, distort the truth-finding process and, at the margins, violate criminal law.
This article focuses on ethical witness preparation, which is essential to the operation of our adversary system. Although witness preparation almost always occurs behind closed doors, usually clothed by the attorney–client and work-product privileges, [1]that does not make the ethics of witness preparation less important. To the contrary, improper witness preparation has the propensity—perhaps more than most other ethical lapses—to pervert the adjudicative process.
Witness Preparation in Different Legal Systems
In the United States, the ethical preparation of witnesses is a basic component of a lawyer’s duty to competently represent a client.[2] The rule is different in other legal systems. In European countries, for example, witness preparation generally is prohibited. The theory supporting such restrictions is that witness preparation inherently pollutes testimony and thus the integrity of the adjudicative process. Illustrative of this view is the 2005 statement by the English Court of Appeal: "There is no place for witness training in this country; we do not do it. It is unlawful."[3]
Proper and Improper Objectives of Witness Preparation
Ethical preparation of witnesses facilitates the presentation of evidence and helps witnesses to more effectively and articulately communicate truthful, historical facts. As Justice Stevens observed: "[A]fter reflection, the most honest witness may recall . . . details that he previously overlooked." [4] Some witnesses naturally or by training are more articulate than others. By virtue of their education, training, and occupations, some witnesses are more comfortable than others speaking in formal settings such as a courtroom. However, trained speakers have no monopoly on the truth; there is no basis for concluding that they are more truthful or observant than those who do not have public speaking skills. Therefore, enabling persons who do not have such skills to effectively present truthful testimony does not impair the truth-finding process; to the contrary, it provides a more level playing field and advances the truth-finding process.
Unethical and unlawful witness preparation (or coaching) obfuscates the truth and instructs, suggests, or helps the witness to lie or to misrepresent historical facts.[5] In fact,
[The lawyer’s] duty is to extract the facts from the witness, not to pour them into him, to learn what the witness does know, not to teach him what he ought to know. [6]
The Law and Rules Governing the Preparation of Witnesses
The boundaries of ethical witness preparation are established by the criminal law and the rules of legal ethics. Both federal and Colorado criminal statutes prohibit tampering with a witness or suborning perjury. [7]
The Colorado Rules of Professional Conduct (Colo. RPC or Rules) also regulate witness preparation.[8] Colo. RPC 3.4 prohibits a lawyer from falsifying evidence and from counseling or assisting a witness to testify falsely. Thus, witness preparation that has the purpose and effect of advising or encouraging a witness to testify falsely violates Colo. RPC 3.4.
Similarly, Colo. RPC 3.3(a)(3) prohibits a lawyer from offering evidence the lawyer knows to be false. That rule also imposes obligations on lawyers who later discover that evidence offered by the lawyer was false.[9] Colo. RPC 1.0(f) defines "knowingly, " "known, " and "knows" as "actual knowledge of the fact in question. A person’s knowledge may be inferred from circumstances." Although this definition is helpful, the certainty provided by the first sentence of Rule 1.0(f) is taken away by the second sentence. If a factfinder determines that the circumstances were such that any reasonable lawyer must have known testimony was false, the lawyer will be legally charged with such knowledge. In this manner, the "knows" standard begins to merge with a "should have known" standard, thus increasing the risk to lawyers when presenting testimony that is highly questionable under the circumstances.
Witness Preparation Techniques
Other than the broad proscriptions contained in Colo. RPC 3.3 and 3.4, the Rules do not prescribe or identify the range of permissible witness preparation methods. They also provide little guidance on when a particular method of witness preparation is appropriate or would violate Rule 3.3 or 3.4. However, the Restatement (Third) of the Law Governing Lawyers does provide such guidance.[10] Section 116 of the Restatement provides that "[i]n preparing a witness to testify, a lawyer may invite the witness to provide truthful testimony favorable to the lawyer’s client." Witness preparation techniques approved by the Restatement include:
1) discussing the role of the witness and effective courtroom demeanor;
2) discussing the witness’s recollection and probable testimony;
3) revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness’s recollection or recounting of the events in that light; [11]
4) discussing the applicability of law to the events at issue;[12]
5) reviewing the factual context into which the witness’s observations or opinions will fit;
6) reviewing documents or other physical evidence that may be introduced;
7) discussing probable lines of hostile cross-examination that the witness should be prepared to meet;
8) rehearsal of testimony; and
9) suggesting words that might be employed to make the witness’s meaning clear. (For example, the words "accident" and "crash" may both accurately describe the historical event. If so, there is no deception and it is not improper for a lawyer to suggest alternate words. On the other hand, if the choice of alternate words has the effect of changing or attempting to change the historical facts, the lawyer crosses the ethical line.)
The fact that these techniques generally are permissible does not mean that these, or any other techniques, may be used where the objective or result is to assist the witness to testify falsely.
Choosing a Method of Witness Preparation
Choosing (and applying) different methods of witness preparation is not a science and is within the lawyer’s professional discretion. Different methods are appropriate for different situations and different witnesses. Professor Richard Wydick of the University of California has proposed a useful protocol to aid in these choices:
Step One: Will my next question or statement overtly tell this witness that I want him to testify to something I know is false? If so, I could be disciplined or criminally sanctioned. If not, then—
Step Two: Will my next question or statement send a covert message to this witness that I want him to testify to something I know is false? If so, I could be disciplined or criminally sanctioned. If not, then—
Step Three: Is there a legitimate reason for my next question or statement to this witness? If there is no legitimate reason, then I should not ask the question or make the statement. If there is a legitimate reason, then—
Step Four: Am I asking the question or making the statement in the manner that least likely to harm the quality of the witness’ s testimony? If not, then I should change my approach.[13]
Another take on how to determine what witness preparation techniques to use is described in Cornell Law School’s "Guidance on Interviewing Techniques":
[A] potential client consulted an attorney about a traffic accident. As the client began to explain the facts in detail, the attorney said, "Before you tell me anything, I want to tell you what you have to show in order to have a case." The attorney then proceeded to explain the law.
Whether the attorney’s technique is proper depends in part on his motive and the client ’s motive. Under NY DR 7-102(A)(6), an attorney may not participate in the creation of false evidence. However, NY EC 7 -6 explains that "the lawyer should resolve reasonable doubts in favor of the client." Moreover, an attorney has an "obligation" to disclose and explain to a client the applicable rules of evidence and facts required to prove a case. Absent a specific Code Provision, an ethics committee should not "mandate or prohibit specific interviewing techniques in an area so subjective." As long as the attorney in good faith does not believe that he or she is participating in the creation of false evidence, the attorney may resolve reasonable doubts in favor of the client and may explain the law before hearing the facts.[14]
Two leading commentators have posited that the scope of...
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