Preparing the Witness to Testify Honestly Is the Best Policy
Rule 1.1 requires an attorney to represent the client competently. Competent representation requires an attorney to inquire into the factual elements of the case, and to prepare adequately. See D.C. Bar Legal Ethics Comm., Formal Op. 79 (1979) (“lawyers commonly, and quite properly, prepare witnesses for testimony”). See generally Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995). In State v. McCormick, 259 S.E.2d 880, 882 (N.C. 1979), the Supreme Court of North Carolina stated:
It is not improper for an attorney to prepare his witness for trial, to explain the applicable law in any given situation and to go over before trial the attorney's questions and the witness' answers so that the witness will be ready for his appearance in court, will be more at ease because he knows what to expect, and will give his testimony in the most effective manner that he can. Such preparation is the mark of a good trial lawyer . . . and is to be commended because it promotes a more efficient administration of justice and saves court time.
The Restatement (Third) of the Law Governing Lawyers, § 116, Comment b states:
In preparing a witness to testify, a lawyer may invite the witness to provide truthful testimony favorable to the lawyer's client. Preparation consistent with the rule of this Section may include the following: 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)).
See Hal R. Lieberman, “Be Aware of Ethical Witness Preparation Rules,” N.Y.L.J., (May 25, 2000).
One component of witness preparation is to inform the witness that he or she should give truthful answers, and that if the witness does not know the answer to a question, the witness should so state. But an attorney should make clear that “I don’t remember” is not an appropriate response where the client knows the answer. In Sheriff, Clark County v. Hecht, 710 P.2d 728 (1985), an attorney was charged with suborning perjury on the following facts:
Respondent, an attorney, represented a client who had been charged with indecent exposure. The client was originally charged with a gross misdemeanor. However, when the district attorney learned that the client had previously been convicted in California of indecent exposure, the district attorney amended the complaint pursuant to NRS 201.220(1)(b) to allege a felony.
At the client's preliminary hearing, respondent decided that it would be necessary to put his client on the witness stand. When the client expressed concern about what he should answer if asked about his prior conviction in California, respondent allegedly advised him: “When the district attorney asks you about your past, tell him you don't remember.” The client subsequently took the witness stand and, when asked by the district attorney whether he had been convicted of indecent exposure in California, answered that he did not remember. The district attorney asked numerous questions concerning the California incident. However, the client continually answered, in essence, that he did not remember.
Id. at 780 at (emphasis added, footnote omitted). See Bennett L. Gershman, “Witness Coaching by Prosecutors”, 23. Cardozo L. Rev. 829 (2002).