Crossing the Line in Witness Preparation

Introduction – One of the major fears Colorado Criminal Defense Lawyers face is pushing a witness too far in preparation for trial. By crossing the line you lose two things – (1) the spontaneity of the witness’s testimony and (2) the possibility that the witness will appear coached and try to “pad” his or her testimony in an attempt to “mislead” the jury.

This Web Page is intended to address both issues as well as the ethical concerns of lawyers who are in the position to make critical decisions regarding witness preparation in a tough trial.

A lawyer is required to diligently and zealously represent his client “within the bounds of the law.” The recognized rule of thumb has been that an attorney can instruct a witness how to testify, but should refrain from telling a witness what to say.

• What constitutes permissible witness preparation versus the improper coaching of witnesses?
• What are the respective obligations of the prosecution and defense with respect to providing the other side access to their witnesses?

Witness preparation is a fundamental part of trial work, the primary goal being to maximize the value of a witness’ testimony. Numerous practice treatises and articles counsel lawyers on how to prepare witnesses for trial and what to accomplish during witness prep sessions.

However, as recognized by almost all these sources, this area of practice has not received much attention from either professional organizations that regulate the ethical behavior of attorneys or courts. As a result, the lines separating valid witness preparation from improper coaching are not always clear.

This uncertainty is frustrating, especially in light of the lawyers obligation to zealously represent his client. One thing is clear – a lawyer should not put on a witness that he knows will commit perjury.

The Model Rules of Professional Conduct provide 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.”

Other than these admonishments related to perjurious testimony, however, there are no guidelines for attorneys to reference regarding witness coaching.

The courts that have addressed improper coaching also have failed to shed much light on the subject.

When addressing concerns regarding witness coaching, a court must consider the defendant’s Sixth Amendment rights and, where there is a conflict between the two interests, Courts have noted that the conflict must be resolved in favor of the Sixth Amendment right to effective representation.

Courts have found that there were other ways to avoid improper witness coaching. For instance, as was seen recently with the effective line of cross-examination of Enron defendant Jeffrey Skilling, the prosecutor can cross examine the witness about any “coaching” that might have taken place during recess;or, where reasonable, the recess can be postponed until testimony is completed.

Since the trial court’s order prevented the defendant from discussing anything with his attorney during the 17-hour period, the Court held that it was a violation of the defendant’s Sixth Amendment rights.

While the Court acknowledged the issue of improper coaching of witnesses, it did not give a definition of coaching or delineate the limits of improper discussion between counsel and his client. Rather, the Court simply referred to those ethical considerations and disciplinary rules prohibiting attorneys from suborning perjury or participating in the creation of evidence that is false.

Courts have acknowledged that “[i]t is usual and legitimate practice for ethical and diligent counsel to confer with a witness whom he is about to call prior to giving testimony.”

While there is no affirmative duty to prepare a witness for trial, a lawyer is required to diligently and zealously represent his client “within the bounds of the law.”

The recognized rule of thumb has been that an attorney can instruct a witness how to testify, but should refrain from telling a witness what to say.

As suggested by one scholar, – Instead of merely refraining from telling witnesses what to say, attorneys would be better guided by focusing on whether their witness preparation techniques could have the probable effect of inducing a witness to falsify or misrepresent facts within his knowledge that are of material significance to an issue at trial, either expressly through testimony or implicitly through demeanor.

Another issue often presented is an attorney’s obligation to allow his adversary the opportunity for pretrial access to witnesses he intends to call to testify.

In a recent federal appellate decision – a court noted that “[w]itnesses, particularly eyewitnesses, to a crime are the property of neither the prosecution nor the defense.”

Rather, both sides should have an equal opportunity for access to such witnesses. Finding that the defendant was deprived of this opportunity by virtue of the prosecution’s actions, the court held that the defendant was denied a fair trial.

In another recent federal case– the venerable company IBM complained to the court when it was frustrated in its attempts to interview some of the government’s listed witnesses as a result of the government instructing the witnesses to cancel their interview appointments with defense counsel.

The court found that any impediment to access to witnesses would “not only impair[ed] the constitutional right to effective assistance of counsel but [was] contrary to time-honored and decision-honored principles, namely, that counsel for all parties have a right to interview an adverse party’s witnesses (the witness willing) in private, without the presence or consent of opposing counsel.

Unlike issues related to the coaching of witnesses, the ethics of obstructing an opponent’s access to a witness have been widely addressed. The Model Rules of Professional Conduct, issued by the American Bar Association (ABA), states that:

“[a] lawyer shall not…unlawfully obstruct another party’s access to evidence or… counsel or assist another person to do any such act….”

American College of Trial Lawyers in its Code of Trial Conduct, implicit is the sentiment that a lawyer should not obstruct another party’s access to a nonparty witness. These ethical rules also make clear that the responsibility of a public prosecutor differs from that of the usual advocate in that he must make timely disclosure to the defense of all evidence that tends to negate the guilt of the accused or mitigates the offense.

The ABA Standards for Criminal Justice provides that a prosecutor “should not advise any person to decline to give the defense information….”

Although prosecutors are held to a high standard in this regard because of their obligation to provide exculpatory evidence to the defense, in whatever form, these ethical rules make it clear that it is improper for any attorney to deny his adversary access to witnesses.

The exception to the rule, of course, is defense counsel’s obligation to protect his client’s Fifth Amendment privilege.

While the ethical preparation of witnesses is not clearly defined, but is an area that should be considered carefully by practitioners. Lawyers need to be diligent in ensuring that both sides fulfill their obligations with respect to providing pretrial access to witnesses and the information they possess. Being conscious of these issues insures not only that one has fulfilled his ethical obligations, but also that the client is zealously represented.

*Attribution for this page is given to the May 2, 2006 edition of the NEW YORK LAW JOURNAL.

Model Rules of Professional Conduct, Rules 1, 3 and 8.

1. A lawyer may interview a witness for the purpose of preparing the witness to testify.
2. A lawyer may not unlawfully obstruct another party= s access to a witness.
3. A lawyer may not unlawfully induce or assist a prospective witness to evade or ignore process obliging the witness to appear to testify.
4. A lawyer may not request a person to refrain from voluntarily giving relevant testimony or information to another party, unless:
   1. the person is the lawyer’s client in the matter; or
   2. 1. The person is not the lawyer’s client but is a relative or employee or other agent of the lawyer or the lawyer= s client, and
      2. The lawyer reasonably believes compliance will not materially and adversely affect the person’s interests.

Most lawyers have heard the term “horse-shedding the witness”. The term was originated by James Fennimore Cooper in the 1800’s, when there were horse sheds near the courthouse where lawyers would talk the case over with their witness. Witness preparation always has been an expected and even essential part of trial preparation. Section 116 of the Restatement of the Law Third, The Law Governing Lawyers expressly permits interviews with a witness for the purpose of preparing testimony, and Comment (b) to Section 116 lists a wide range of permissible witness preparation activities.

• Inviting the witness to provide truthful testimony favorable to the lawyer’s client;
• Discussing the role of the witness and effective courtroom demeanor;
• Discussing the witness’s recollection and probable testimony;
• 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 events in that light;
• Discussing the applicability of law to the events in issue;
• Reviewing the factual context into which the witness’s observations or opinions will fit;
• Reviewing documents or other physical evidence that may be introduced; and
• Discussing probable lines of hostile cross-examination that the witness should be prepared to meet.
• Witness preparation may include rehearsal of testimony.
• A lawyer may suggest choice of words that might be employed to make the witness= s meaning clear.
• However, a lawyer may not assist the witness to testify falsely as to a material fact. [See ‘ 120(1)(a)].

• Counsel or assist a client in conduct that the lawyer knows is criminal or fraudulent (Rule 1.2(d));
• Offer evidence that the lawyer knows to be false (Rule 3.3(a)(4));
• Engage in conduct involving dishonesty, fraud, deceit, or misrepresentation (Rule 8.4(c)); or
• Engage in conduct prejudicial to the administration of justice (Rule 8.4(d)).

The Lecture” is an ancient device that lawyers use to coach their clients so that the client won’ t quite know he has been coached and his lawyer can still preserve the face-saving illusion that he hasn’t done any coaching. For coaching clients, like robbing them, is not only frowned upon, it is downright unethical and bad, very bad. Hence the Lecture, an artful device as old as the law itself, and one used constantly by some of the nicest and most ethical lawyers in the land.

Who me? I didn’t tell him what to say, the lawyer can later comfort himself.

I merely explained the law…. It is a good practice to scowl and shrug here and add virtuously: That’s my duty, isn’t it?” Robert Traver, Anatomy of a Murder, The Lecture as practiced usually involves three elements: the law, the words, the focus.

As a general rule, lawyers are permitted to tell witnesses about the applicable law and necessary proof. Restatement of the Law Third, The Law Governing Lawyers

“A lawyer may suggest choice of words that might be employed to make the witness’ meaning clear.” This is permissible, so long as the substance of the ultimate testimony, as far as the lawyer knows or ought to know, remains truthful and is not misleading.

A lawyer probably can suggest subject matters to focus on in responding to questions at a deposition or trial.

Although lawyers cannot ethically tell or allow their clients to tell a lie, suggesting subject matters to focus on in telling their story is surely what every competent lawyer.

Courts disagree widely on what is permissible in the Lecture. The semantics used, and the emphasis given, by the attorney are important.

There are no bright lines. Lawyers have a duty to prepare witnesses about their testimony, the law, proof requirements, and even to suggest particular words, so long as the attorney does not know that the resulting testimony is false and there is a genuine concern that the witness testify truthfully.

The concern of the lawyer should always be for the truth to be told. Stay on the track of truth, and show your concern to the witness. Those words of concern are what a court is looking for in the Lecture.