Confronting the ethics of witness familiarisation: the elephant in the room


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“You prepare witnesses for cross examination?" she says. "Really?" Her elevated right eyebrow denotes the subtext; but for good measure, her friends adds, “what? You mean like witness coaching? I thought you lawyers weren’t supposed to do that!”

It’s conversations like these, combined with my own hyper-sensitivity about any hint of ethical ambiguity, that have caused me to learn, more than most, about the dos and don’ts of witness preparation.


Years of running witness familiarisation training have also taught me a great deal about the dynamics of giving evidence, from the vantagepoint of the witnesses themselves.


I’ve learned things I didn’t know I didn’t know; and discovered that we lawyers often underestimate, or don’t manage effectively enough, the very real litigation risk of an underprepared, nervous witness.


And along the way, I have developed a training package for litigation lawyers, which imparts some of this knowledge.


Complimentary CPD training for litigation lawyers

This one-hour session is complimentary, can be delivered either online or in person (kanohi ki te kanohi) and usually fits nicely into an inhouse breakfast or lunchtime training slot.


We broadly cover the following topics:


Stress and the witness –

  • what your witness may not be telling you

  • how fight/flight/freeze stress triggers can manifest for a witness

  • how these triggers impact on the way their evidence is received/evaluated

  • strategies that can help

Ethics of witness preparation –

  • permissible vs impermissible based on case law and rules

  • contrasted with US “prepping” and the risk of “coaching”

  • international arbitration – hybrid situation

If this course sounds appealing to you and your litigation team, we would love to hear from you. In the interests of spam minimisation, we prefer not to advertise our email addresses online, but we will get in touch with you directly if you fill out our online form here:


Contact Legal Empowerment


Yes, yes, yes, but what about the elephant?

Oh, and in case you’re wondering how we answer questions like those posed at the beginning of the article, here’s a potted summary:


Is Witness Familiarisation ethical?

The English Court of Appeal[1] has endorsed "witness familiarisation" – even in criminal proceedings – provided there is no witness coaching and those conducting the session do not have personal knowledge of the material issues in the case. These rules have been followed in other cases in the United Kingdom and are consistent with the position in Australia and New Zealand.


Lawyers are not allowed to influence witnesses as to what they should say or attempt to persuade the witness into changing their evidence. That is known as witness coaching and is unethical.


Witness familiarisation on the other hand is to be encouraged. Witnesses should be put at ease as much as possible before giving evidence. Witnesses should not be disadvantaged by the ignorance of the process or taken by surprise at the way in which the hearing works.


But won't it still look like coaching?

This perception risk is more acute when it's the lawyers running the litigation who prepare the witnesses. You've lived with the case, possibly for years, you know the law, facts and evidence intimately, you can probably recite the case theory in your sleep - and the witnesses are in the habit of discussing the content of their evidence with you.


Legal Empowerment, on the other hand, is wholly independent of the case that is going to trial. While our trainers are experienced litigators, we ensure that the assigned trainer has no more than a peripheral understanding of the evidence and issues in dispute. We also have strict rules around what may or may not be discussed by witnesses during the sessions. This allows witnesses to enhance their learning by working in groups, without contaminating their actual evidence.


And cross examination?

Witness familiarisation can include mock cross examination so long as the material used does not resemble the real-life proceeding and those conducting the session are not involved in the proceeding.


During our witness familiarisation sessions, witnesses are cross-examined in a mock hearing using hypothetical case studies. The witnesses still get the advantage of experiencing what it is like to be cross examined but are not “rehearsed” on their actual evidence. They also receive feedback that helps them communicate clearly under challenging circumstances, but is not itself suggestive of any answers they might give at trial.

 

[1] R v Momodou [2005] EWCA Crim 177 – the court also coined the term “witness familiarisation” cf “witness coaching” as a way of differentiating between the permissible and impermissible forms of witness preparation.



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