Legal and ethical issues in witness preparation

1. John P. Kelly
Fort Lauderdale, Florida

3.  Fundamental human problem of recalling events from the past; no
one has accurate ―instant recall‖;
 Frailties in human perception;
 Help the witness tell the story that you are trying to put together for
trial by fitting his or her testimony into the story line that is best for
your client;
 Build the confidence of the witness;
 Improve the credibility of the witness;
 Avoid ―traps‖ in opposing counsel’s cross-examination, i.e., ―tricky
questions‖

4.  Polished witnesses speed up the process;
 Comfort witnesses to an uncomfortable
process;
 Polished witnesses are unlikely to fumble on
the stand;
 Smoother trial and less work for the judge

5.  Breath and scope of questioning at depositions
 Wide-open discovery
 Up to 98% of cases settle
 No judge present

6.  : ― … attorneys are well-advised to heed the
sage advice . . .[to] ―exercise the utmost care to
extract and not to inject information, . . .‖ State
v. Earp, 571 A.2d 1227,1234 (Md. 1990)

7. ZEALOUS REPRESENTATION VS. CANDOR TO THE COURT
 Lawyer’s duty to zealously
represent a client
 Model Rules of Professional
Conduct 1.3-‖a lawyer should
act with ―reasonable diligence‖
in representing a client
 MR 1.29(d) a ―lawyer shall not
counsel a client to engage, or
assists a client, in conduct that
the lawyer knows is criminal
or fraudulent‖
 MR 3.4 (b):a lawyer shall not .
. assist a witness to testify
falsely
 MCPR: lawyer cannot
participate in the creation or
preservation of evidence when
he knows, or is obvious, that
the evidence is false

8.  Witness Preparation has been called the ―Dark
Secret‖ of the legal profession:
 Not taught in law school;
 Not directly regulated or directly covered in most
Professional Codes;
 Rarely litigated and scant case law on the subject;
 Not a huge topic in scholarly literature;
 Only exception is subornation of perjury, which is a
criminal violation.

9.  18 USC § 1622, defines Subornation of Perjury as a crime wherein:
―Whoever procures another to commit any perjury is guilty of
subornation of perjury, and shall be fined $2,000 and sentenced to
up to five years. Subornation of perjury occurs when anyone —
not just a lawyer — encourages a witness to perjure her/himself.
Violators can face a maximum of five years in prison.‖
 Moreover, an attorney who actively encourages a witness to give
false testimony is suborning perjury, which is a crime punished
with formal disciplinary action, disbarment, or jail.
 Hence, in the professional conduct of an attorney at law, there is a
fine delineation between assisting a witness to recall occurred
events and encouraging him or her to give materially false
testimony.

10.  The Model Rules of Professional Conduct, Rule 3.4(b) states
that a lawyer must not counsel or assist a witness to testify
falsely. Many courts also impose a knowledge requirement.
Restatement of the Law Third, The Law Governing Lawyers
' 120(1) (lawyer may not A knowingly counsel or assist a
witness to testify falsely as to material issue of fact). Under
the MRPC Terminology section, A knowledge means A
actual knowledge, but such knowledge may be inferred from
circumstances.
 The MRPC’s definition of A knowledge" suggests that a
lawyer may be found to have the requisite state of mind
under MRPC 3.4(b) when the evidence shows the lawyer
actually knew or must have known that his witness
preparation would assist a witness in testifying falsely.

11. The term "woodshedding" refers to impermissibly
coaching a witness or unfairly prejudicing a
witness during ex parte communications. In re
Yasmin & Yaz (Drospirenone) Mktg., Sales Practices
and Products Liability Litig., 2011 U.S. Dist. LEXIS
21973 (D. Ill. 2011).

12. Georgetown Legal Ethics Professor David Luban
has observed:
"The interviewing and preparation of witnesses ...
is a practice that, more than almost anything else
gives trial lawyers their reputation as purveyors
of falsehoods."

13.  Rule 4-3.4 : ―A lawyer shall not‖:
unlawfully obstruct another party’s access to
evidence; . . .
fabricate evidence, counsel or assist a
witness to testify falsely, or offer an
inducement to a witness; . . .
request a party to refrain from voluntarily
giving relevant evidence to another party
unless a client, relative, employee, or other
agent of client

14.  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

15.  Some courts suggest that improper witness
coaching is not of great concern because it can
be flushed out by cross-examination.
 What if witness denies being woodshedded or
gives a response, ―I was told to tell the truth‖
 What if attorneys’ ―suggestions‖ have been
unfairly and permanently planted in the
memory of the witness

16.  ―If you tell the truth, you have nothing to fear
and the other side will not be able to shake
you. I am hear to help you tell the truth
confidently and clearly.‖

17.  ―He told me to tell the truth, and …..
get a good night’s sleep‖

18.  In Ibarra v. Baker, 338 Fed Appx. 457 (2009), the Fifth Circuit
Court of Appeals considered the issue of how far is too far when it
comes to overly woodshedding witnesses.
 The court upheld an award of sanctions against attorneys
representing law enforcement officers in a Section 1983
action, where the defense asserted it had a reasonable suspicion
for detainment of the plaintiff. The lower court had found the
attorneys improperly instructed their expert witness, Albert
Rodriguez, a commander with the Texas Department of Safety, to
improperly alter the law officers’ substantive testimony. The
district court found the attorneys had essentially planted two new
―terms of art‖ into the litigation via their preparation of
Rodriguez: ―retaliation‖ and ―high crime area.‖ The witnesses all
began using these terms as part of their testimony late in the
litigation, after the attorneys met with Rodriguez and
subsequently with the other officers.

19.  Delmonico v. Traynor, 50 So. 3d 4 (Fla. 4th DCA
2010): attorney’s alleged statements to potential
witnesses, before their appearance at deposition or
in the courtroom in underlying action, were
covered by the absolute immunity conferred by the
litigation privilege.
 Dissent: ―An attorney has absolute immunity for
events occurring during a judicial proceeding.
However, where, as it is alleged here, an attorney
makes defamatory statements which injure a
person outside of those ―judicial proceedings,‖ the
attorney should be entitled only to qualified
immunity.‖

20.  Simultaneous Interviews: simultaneous
interviews of potential witnesses do not violate
any rule of professional responsibility, but as a
practical matter they should be avoided
because it reinforces the appearance of
collusion.
 One witness’s recollection may be suppressed
by proposed testimony of that recollection by
another witness.

21. One of the oldest witness preparation practices is called the lecture. While
frequently used in connection with the initial interview of a criminal
defendant-client, it is also sometimes used when interviewing witnesses. As
practiced, before hearing the client or witness’s version of what occurred, the
lawyer explains the law relating to the charged offense or the law relating to a
possible defense and frequently the law relating to both and then asks the
client or witness to tell him her version of the events.
The lecture is frequently criticized by legal academics as violating Model Rule
of Professional Conduct 3.4(b) which prohibits a lawyer from falsifying
evidence or counseling or assisting a witness to testify falsely or at least as
bordering on such a violation because, it is argued, it encourages a defendant
or witness to falsely tailor her testimony to the applicable law. Despite those
criticisms, the practice of explaining the law before hearing the client or
witness’s version of the events has been approved by courts and ethics
committees of bar associations.

22.  The “Lecture" is an a tried and true 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.

23. The Lecture as practiced usually involves three elements:
the law, the words, the focus.
1. The Law. 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 ' 116,
Comment b; State v McCormick, 259 SE 2d 880 (NC Sup.Ct. 1979); Nassau County (N.Y.)
Ethics Opinion 94-6 (1994) (lawyer may inform client about law before getting client’s
version of facts as long as lawyer in good faith does not believe that he or she is
participating in creation of false evidence).
2. The Words. "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. See District of Columbia Ethics Op. 79 (1979).
3. The Subjects of Focus. A lawyer probably can suggest subject matters to focus on in
responding to questions at a deposition or trial. See EEOC v. Mitsubishi Motor Mtg. of
America, Inc., No. 96-1192 (D.C Ill. Oct. 23, 1997). The judge characterized as
"somewhat disingenuous" the contention that the EEOC's letter to its witnesses with
“memory joggers" of items to recall in testimony would taint the truth-finding process..

26.  Scripted performances based on Q&A
 ―Oh, I left my questions and answers in my
car‖

27.  Wydick, The Ethics of Witness Coaching, 17
Cardozo L. Rev. 1 (1995):
 Grade One Coaching: knowingly and overtly
coaching a witness to testify to something the
lawyer knows is false
 Grade Two Coaching: Sending a witness a
masked message between the lines;
 Grade Three Coaching (OK): know knowing
inducement , but the coaching nonetheless
alters the witness’s story

28.  Goldman and Winegardners, 59 Cath U.L. Rev. 1 (2009)
 Lawyer must distinguish sharply between testimony
that is inaccurate because of human error and
testimony that is inaccurate as a result of lawyer
deception
 Distinction between ―testimony about historical
record‖ and ―testimony about present understandings‖
 ―a lawyer may not deceptively offer or permit a
witness to offer inaccurate testimony to improve the
record to benefit the client‖

29. Multi-cultural and politically
divisive
Less verbally articulate
Multimedia Influence
More prone to confabulated
memories

30.  In protracted litigation, ‖confabulated memory‖ – filling in
the blanks and recreating memories – is common, and
research has documented the tendency.
 Confabulation is defined as the spontaneous production of
false memories: either memories for events which never
occurred, or memories of actual events which are displaced
in space or time. Confusion of imagination with recollection
 Repetitive suggestive questioning tends to plant the seeds of
memory.
 What is more problematic is that it is possible to reach a
point where ―if you believe it, then it isn’t a lie.‖

31.  Behavioral Psychologists say report that the quality
of witness testimony, whether it is from a fact
witness or expert witness, is probably the single
most determining factor in a trial's
outcome, particularly in complex litigation. This is
because as basic facts of a trial get more
complex, jurors memories are more impacted by how a
witness performed on the stand rather than the content.
 Stated another way, jurors are often more
persuaded by form than substance, which is hardly
an unusual phenomenon and is seen in many other
decision-making fields—indeed that is a central
tenet of marketing and political campaigns

32.  Research evidence has uniformly shown that perception of
a witness influences jurors’ beliefs about the witnesses
accuracy and honesty.
 People regard as persuasive those communicators who are:
1. Extroverted,
2. Involved,
3. Positive
4. Moderately Relaxed.
Good witnesses tend to use a
1. Great deal of eye contact,
2. Speak in clear steady tones and
3. Appear confident

33.  Eye Contact
 Positive appearance
 Extroverted mannerisms
 Moderately Relaxed
 Speak in clear and steady tones

34.  Prior witnesses’ testimony on Ipad;
 Use of behavioral consultants to ―train’ the
witness;
 Showing the witness a ―how to be a great
witness video demonstration‖;

35.  Telling the witness to make sure she takes her
valium or xanax, or perhaps an extra dose;
 Telling the witness to have a yoga or mediation
session before coming to court;
 Scripted dry-runs or rehearsals with instant
―live‖ feedback;
 Telling the witness exactly what to wear or to
alter his or her appearance;
 Use of actors to read depositions

36. Get a haircut and go to the dentist
How about a pair of fake glasses?
I know a great tailor
By any chance, will you be out of the country when this case goes to
trial?

37. ?????????

38. LAWYER WITNESS