Practising the dark arts? The US approach to witness preparation





In 2006, US Federal prosecutor, Carla Martin was accused of “witness tampering” in the trial of 911 terrorist, Zacarias Moussaoui, after it was disclosed at sentencing that she had -


· emailed trial transcripts to witnesses, with instructions on how they should testify

· prepared witnesses together, rather than apart

· prevented witnesses from speaking to the defence


The Judge was rightly furious: the prosecutor’s actions had directly violated a witness exclusion order and they almost caused a retrial. In the end, the witnesses were precluded from testifying at sentence and Moussaoui received a life sentence rather than the death penalty. Carla Martin herself was the subject of widespread opprobrium from the US legal profession.


But was there just a hint of humbug in the umbrage from her peers? And, when measured against common standards, was Carla Martin’s biggest blunder simply being caught?


Former public defender, David Feige, thought so. In Tamper Proof, an article written at the time, he described Martin’s actions as “not rare, just sloppy”, saying:[i]


There is no question that this sort of behavior violates the spirit of fairness that is supposed to guide our criminal justice system. There is also no question that what Martin did happens all the time – just not via e-mail.

Witness-coaching isn’t just commonplace, it’s endemic. Every single day, in state and federal courts across the country, prosecutors and defense lawyers summon their witnesses and coach (most would prefer the term “prepare”) their testimony. This preparation is not only permissible but important, and it routinely includes a discussion of the questions to be asked, and even helpful hints on improving the testimony. It is not at all uncommon to prod a witness’s memory, dredging up old police reports, grand jury testimony, or prior conversations to get a witness to say what a prosecutor wants them to say, and in the way a prosecutor believes will be most effective. In the dozens of prosecutorial prep sessions I’ve witnessed over the years, I’ve seen prosecutors threaten, cajole, and remind witnesses in no uncertain terms of what they want said on the stand, often by referring to other evidence in the case and even the statements of other witnesses. “Don’t worry about it, I have X to say Y” is as common a refrain in these sessions as, “What happened next?”

Strictly speaking, witness coaching is prohibited in the US, at least in its most pejorative sense - “conduct by a lawyer that alters a witness’ story about the events in question”.[ii] As New York jurist, Judge Francis Finch put it back in 1880:[iii]

While a discreet and prudent attorney may very properly ascertain from witnesses in advance of the trial what they in fact do know and the extent and limitations of their memory, as guide for his own examinations, he has no right legal or moral, to go further. His 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.

The boundaries become less clearcut when put into practice because US lawyers are also ethically and professionally obliged to “prep” or “proof” witnesses.[iv] Even criminal prosecutors are expected to interview witnesses early, help them to refresh their memories and challenge any inconsistencies or conflicts in the evidence.[v]


One commentator has said of these seemingly inconsonant ethical standards:[vi]


Witness proofing occupies an ‘awkward position’ in the US system, being caught in a conflict within the adversary system itself between partisanship and zealous representation, on the one hand, and the duty of candour towards the court, commitment to truth and the integrity of adjudicatory system, on the other hand. The tension between these procedural values results in competing commitments and renders the open-textured ethical standards even more inconclusive for those who are required to abide by them. Under these circumstances, the risk of the preparation session being turned into an opportunity for reshaping of evidence in a traceless manner is not one that can be easily discarded.

It is also commonplace in the US for witness preparation to include extensive rehearsals of testimony, under both direct and cross examination. This practice is not without controversy, particularly because of concerns that rehearsed cross examination may influence or even contaminate a witness’ evidence.[vii] It is for this reason that one critic called-out “witness coaching” as being the “dark, dirty secret” of the US adversary system.[viii]


The absence of sufficient bright line tests to establish when lines have been crossed and the tendency of leaving the issue for courts to regulate on a trial-by-trial basis have also been criticised. According to Brittany Cohen:[ix]


[the courts] prohibit only the most egregious conduct, such as directing witnesses to give perjured testimony or providing witness testimony that the prosecutor knows to be perjured.

She also points out that, even when detected, there is little in the way of remedy, as cross examination alone is perceived to be a sufficient defence to unethical witness preparation.[x] That there is cause for Cohen's concern is corroborated by Feige:[xi]


What guides such coaching sessions is not some abstract ideal of the independent witness, but rather the question of how any coaching could play later, on cross-examination. A good prep session, in other words, will effectively shape a witness’s testimony to maximize its impact while minimizing the danger that cross-examination will pull back the curtain on what is actually happening. You coach just well enough to diminish the appearance of coaching.

Seen from an outside's vantage point then, the practice of witness preparation in the US may be less about eliciting the best evidence than about mastery of a dark art.


Endnotes


[i] D Feige, Tamper Proof, Slate Magazine, 16 March 2006 https://slate.com/news-and-politics/2006/03/tamper-proof.html [ii] Richard C Wydick The Ethics of Witness Coaching 17 Cardozo L. Rev. 1. [iii] Re Eldridge 82 N.Y. 161 (N.Y. 1880). [iv] Brittany R Cohen Whose Line is it Anyway?: Reducing Witness Coaching by Prosecutors 18 N.Y.U. J. Legisl. & Pub. Policy 985 (2015) at pp 989 and 1009, citing Nixon v United States, 703 F. Supp. 538, 563 (SD Miss, 1988); State v Earp, 571, A.2d 1227, 1234 (md.1990). [v] Cohen (note 4) at 988-989. [vi] S.V.Vasiliev (2011). From liberal extremity to safe mainstream? The comparative controversies of witness preparation in the United States. International Commentary on Evidence, 9(2), 5. https://doi.org/10.2202/1554 at p. 52. [vii] See for instance: Richard C. Wydick, The Ethics of Witness Coaching, 17 Cardozo L. Rev. 1 (1995); Joseph D. Piorkowski, Jr., Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of ‘Coaching,’ 1 Geo. J. of Legal Ethics 389 (1987); Bennett L. Gershman, Witness Coaching by Prosecutors, 23 Cardozo L. Rev. 829 (2002); Hal R. Lieberman, Be Aware of Ethical Witness Preparation Rules, New York Law Journal (25 May 2000); S.V.Vasiliev (2011). From liberal extremity to safe mainstream? The comparative controversies of witness preparation in the United States. International Commentary on Evidence, 9(2), 5. https://doi.org/10.2202/1554; Harold K Gordon, Crossing the Line on Witness Coaching New York Law Journal (8 July 2005); Roberta K. Flowers, Witness Preparation: Regulating the Profession's Dirty Little Secret, 38 Hastings Const. L.Q. 1007 (2018). [viii] Roberta K. Flowers, What You See Is What You Get. Applying the Appearance of Impropriety Standard to Prosecutors, 63 Mo. L. REV. 699, 740 (1998). [ix] BR Cohen (note 4) at p 1011. [x] BR Cohen (note 4) at p 1013. [xi] D Feige (note 1).

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