Criminal Justice Section
Criminal Justice Magazine
Volume 17 Issue 3
Peter A. Joy and Kevin C. McMunigal
Witness Preparation: When Does It Cross the Line?
Lawyers who practice criminal law, both prosecutors and defense counsel alike, routinely prepare witnesses for trial. James Fenimore Cooper popularized the phrase "horseshedding" to refer to the practice of lawyers rehearsing witness testimony in carriage sheds near rural courthouses in the nineteenth century. Today, some refer to witness preparation as "woodshedding" or "coaching" the witness. These colloquialisms suggest that what lawyers do in preparing witnesses is either outright unethical or at best pushes the limits of ethical conduct. But what are these ethical limits? Although the practice of witness preparation is often viewed with suspicion, the ethical and practical aspects of witness preparation are not often directly addressed.
Virtues and vices
Why do we allow lawyers to prepare witnesses to testify? If the practice is viewed as ethically suspect, why is it not banned? A number of arguments can be made in favor of witness preparation.
Meeting with a witness prior to trial allows the lawyer to discover whether or not the witness has information relevant to the issues at trial, avoiding the time, expense, and inconvenience of having to call the witness to the stand to determine if the witness has anything of value for the fact finder. It also helps the lawyer fulfill the Rule 11 obligation to determine that there is a factual basis for the client’s position. The lawyer’s questions before trial may refresh the recollection of the witness and increase the amount of information available to the fact finder. Witness preparation also allows the lawyer to clarify what the witness has to say and to present the testimony in a logical sequence so that it is more readily understood at trial. Indeed, at least one court has called "[witness] preparation the mark of a good trial lawyer . . . to be commended because it promotes a more efficient administration of justice and saves court time." ( State v. McCormick, 259 S.E.2d 880, 882 (N.C. 1979).)
In addition, witness preparation gives the lawyer an opportunity to enforce the rules of evidence by instructing the witness not to mention inadmissible and possibly prejudicial information. If the lawyer, through witness preparation, learns that the witness might testify to such inadmissible and prejudicial information, the lawyer can frame the questions to avoid eliciting such information.
What about the potential vices of witness preparation? Those critical of the practice argue that witness preparation allows lawyers to hide evidence unfavorable to the client and fabricate favorable evidence. Rather than increasing the quantity and quality of information available at trial, this view sees lawyer preparation as reducing and distorting the information available to the fact finder. Critics emphasize the malleability of witness recollection and testimony. Psychologists have demonstrated that questioning a witness can heavily influence, either purposefully or inadvertently, what the witness remembers and how he or she expresses what is recalled. Use of terms such as "coaching" and "woodshedding" to describe witness preparation tends to emphasize this negative aspect of witness preparation.
Though there is no ethics rule specifically addressing witness preparation, there are a number of obligations that bear significantly on the practice. The obligation of competence dictates that the lawyer thoroughly prepare the factual aspects of a case. Model Rule 1.1, for example, requires a lawyer to provide competent representation and defines competent representation as requiring the "thoroughness and preparation reasonably necessary for the representation." Comment 5 to Model Rule 1.1 states:
"Competent handling of a particular matter includes inquiry into and analysis of the factual and legal elements of the problem, and use of methods and procedures meeting the standards of competent practitioners." (Emphasis added.) The idea that a lawyer should thoroughly investigate the facts of the case is reinforced by ethics opinions and court rules, such as Rule 11, which require factual investigation as a precursor to any filing.
One can also argue that good advocacy under the adversary system compels the lawyer to present the facts as clearly and persuasively as possible. Leading trial practice textbooks and treatises emphasize that effective direct examination depends on organizing the testimony so it is concise, understandable, and demonstrates the logical interrelationship with the party’s theory of the case.
The obligation to avoid false or perjured testimony also bears on witness preparation. At the same time that the lawyer is required to thoroughly investigate and persuasively present the facts on behalf of his or her client, both the criminal law and ethical rules prohibit the lawyer from presenting false testimony. At its worst, coaching a witness may entail encouraging and assisting the witness in committing perjury. Professor Charles Wolfram has observed that "[a] lawyer who advises a witness about the law or about desired testimony before seeking the witness’ own version of events comes dangerously near subornation of perjury," which may, in fact, become suborning of perjury depending on the lawyer’s intent and whether or not the witness purposefully gives false testimony. (Charles Wolfram, Modern Legal Ethics § 12.4.3 (1986).)
Model Rule 3.4 states that a "lawyer shall not . . . counsel or assist a witness to testify falsely." When a lawyer crosses this line, ethical discipline usually takes the form of disbarment or suspension from the practice of law. ( See, e.g., Goodsell v. Mississippi Bar, 667 So. 2d 7 (Miss. 1996) (imposing a six-month suspension upon a lawyer who allowed a witness to testify about a matter the lawyer knew was untrue); In re Mitchell, 262 S.E.2d 89 (Ga. 1979) (disbarring lawyer for encouraging witness to testify falsely); In re Oberhellman, 873 S.W.2d 851 (Mo. 1995) (disbarring lawyer who advised witness to testify falsely).) Criminal sanctions are also possible for witnesses who testify falsely and lawyers who encourage or assist them in doing so.
The practical and ethical task for the lawyer in witness preparation is how to comply simultaneously with these various obligations—how to investigate and present the witness’s testimony competently and persuasively without distorting it.
Discussions of witness preparation are often premised on the view that the lawyer’s obligations to the client and the court are at odds with one another—that witness preparation that distorts a witness’s testimony is good for the client, but detrimental to the court and the legal system. But there are a number of practical reasons for a lawyer to refrain from using a highly suggestive witness preparation technique. Exploration of these practical limits reveals that avoiding distortion of witness testimony typically serves the best interests of the client while at the same time protecting the legal system.
First, lawyers need to obtain accurate information about the factual strengths and weaknesses of the case in order to make strategic choices and advise a client about plea negotiations. A suggestive witness preparation technique may leave a lawyer in the dark about what a witness actually knows, reducing the amount of information the lawyer has and the quality of his or her strategic choices and advice.
Second, skeptics about witness preparation often appear to assume that witnesses are infinitely malleable, like putty in the hands of skilled trial lawyers. This may be true with some witnesses, but certainly not all of them. By trying to shape their testimony, a lawyer runs the risk of offending and alienating potentially helpful witnesses. Heavy-handed witness preparation might even backfire by nudging the witness toward a recollection less favorable to the client than what the witness would have adopted with a more neutral inquiry.
Third, discussions of witness preparation often proceed on the unstated assumption that what the lawyer does during the process of witness preparation, because it typically goes on behind closed doors without opposing counsel present, will never be revealed. The terms "horseshedding" and "woodshedding," for example, suggest a clandestine activity not subject to review or enforcement of ethics rules.
What lawyers say to clients in preparing their testimony will normally be privileged. But what a prosecutor says to virtually any witness, and defense counsel says to any witness other than a client, is fair game for cross-examination. A skilled cross-examiner’s exploration of an opposing lawyer’s preparation of a witness can damage the credibility of the witness, the lawyer, and the client. Accordingly, a wise approach is to prepare the witness with the anticipation that everything said will be revealed to the fact finder. Imagine the lawyer’s exchange with the witness was being videotaped and would be played back before a jury. How would it look to the jury? How would it reflect on the lawyer’s credibility, the client’s credibility, and the witness’s credibility?
Finally, discussions of witness preparation often fail to consider the consequences of unsuccessful witness perjury. If the lawyer does, in fact, distort the witness’s testimony and that fact is revealed at trial through cross-examination or the introduction of other witnesses or documentary evidence, at the very least the credibility of the witness, the lawyer, and the client will suffer. Even if the false testimony is on a relatively minor matter, the jury may draw the inference that a witness who testifies falsely on one point is not worthy of belief on other more important points on which the witness’s testimony may, in fact, be accurate and helpful to the client. There is also the possibility of criminal or other sanctions. A client who testifies falsely in a criminal case may, for example, receive a greater sentence if the sentencing judge concludes that the client testified falsely at trial.
Preparing a witness
How can a lawyer avoid either purposefully or inadvertently distorting witness testimony, but, nonetheless, thoroughly prepare the witness? One way to think about witness preparation is to compare it to the techniques used for direct and cross-examination. Direct examination is properly pursued using nonleading, open-ended questions, while leading questions are appropriate during cross-examination. A suggestive witness preparation technique can be analogized to cross-examination in that it tends to suggest the witness’s answers. A nonsuggestive witness preparation technique, like a good direct, does not suggest the answers. If a lawyer thinks about good witness preparation as similar to a good direct examination, it will tend to lead away from suggestive practices.
As an added benefit, the lawyer will also learn about the witness’s own language and word choice from the nonsuggestive approach. Understanding the witness’s own way of thinking and talking about the events will help the lawyer gain a better understanding of what actually occurred and how to use the witness’s testimony in the most effective way possible. Rather than a heavy hand, a light touch is often the most effective approach to witness preparation.
Peter A. Joy is a professor of law and director of the Criminal Justice Clinic at Washington University School of Law in St. Louis, Missouri. Kevin C. McMunigal is the Judge Ben C. Green Professor of Law at Case Western Reserve University School of Law in Cleveland, Ohio. Both are contributing editors to Criminal Justice magazine.