In this week’s
blog post, we are going to take a brief look at ethical issues associated with
preparing a witness for a deposition or to testify at trial. Most attorneys
would agree that it is permissible to meet with a witness before the witness’s
deposition to discuss what to expect. On the other hand, there is no question
that advising a witness to provide false testimony would be improper. But what
about the area in between those two extremes? For instance, can an attorney
suggest to a witness how to phrase answers to anticipated questions that, while
true, might not be the way the witness would have answered the question absent
the attorney’s coaching?
A little over
a year ago, the American Bar Association Standing Committee on Ethics and
Professional Responsibility issued ABA Formal Opinion 508: The Ethics of
Witness Preparation. The opinion provides certain examples of things that are
and are not permissible in preparing a witness for a deposition or trial.
According to
the opinion, it is ethical for a lawyer preparing a witness for trial or
deposition to:
- Emphasize the importance of telling
the truth
- Explain that a truthful answer can
include “I do not recall”
- Inquire into the witness’s probable
testimony and recollection
- Identify other testimony that is
expected and explore the witness’s version of events in light of that
testimony
- Use documents with the witness,
including using documents to refresh the witness’s recollection
- Identify potential lines of
questioning
- Suggest choices of words that might be
employed to make the witness’s meaning clearer
- Instruct the witness to testify only
about what they know and remember and not to guess
- Familiarize the witness with the idea
of focusing on answering the question that was asked and not volunteering
information
The opinion also gives certain examples of improper witness preparation
that include:
- Counseling a witness to give false
testimony
- Advising a witness to disobey a court
order
- Offering an unlawful inducement to a
witness
- Procuring a witness’s absence from a
proceeding
Similarly,
the Restatement (Third) of the Law Governing Lawyers § 116 (2000) provides
that in preparing a witness to testify, a lawyer may:
- Invite the witness to provide
truthful testimony favorable to the lawyer's client
- Discuss the witness's recollection
and probable testimony
- Discuss other testimony or evidence
that will be presented and ask the witness to reconsider the witness's
recollection or recounting of events in that light
- Discuss probable lines of hostile
cross-examination that the witness should be prepared to meet
- Rehearse testimony
- Suggest choices of words that might
be employed to make the witness's meaning clear
The opinion
and the restatement would certainly suggest that a certain amount of “coaching”
on how the witness might answer questions is acceptable. However, opinions
addressing the issue seem to take a limited view of what is permissible.
In U.S.
Welton, CR 09-00153 MMM, 2009 WL 2390848, at *1 (C.D. Cal. Aug. 1,
2009), the district court addressed a case in which an assistant U.S.
attorney advised an FBI agent, in advance of a hearing on a motion to
suppress a confession, not to describe the conversation she had with the
defendant as “softening him up” before reading him his Miranda rights.
The court noted that there were no cases definitively delineating the
boundaries of permissible witness preparation for trial. However, the court did
state that “directing a witness to use (or avoid using) particular words
when phrasing an answer is unacceptable conduct, particularly for a prosecutor
. . .” The opinion seemed to suggest there was a somewhat higher standard for a
prosecutor than there was for lawyers representing private parties.
Nonetheless, despite finding the coaching to be improper, the court did not
find the coaching to constitute the type of outrageous governmental misconduct
that would warrant dismissal of the indictment.
In In
re Brooke P. Halesy, 02-10195 (State Bar of Calif. Hearing Dep’t
2006), a deputy district attorney was suspended from the practice of law for,
among other things, working with a witness to an extent that tampered with the
heart of the witness’s testimony. The underlying case was a murder prosecution. The prosecution’s case turned on
the testimony of the pathologist who performed the autopsy of the victim. The
opinion described the pathologist as incompetent with a history of having been
terminated for inadequate work performance and poor courtroom demeanor. After
the problems with the pathologist’s work history became apparent, arrangements
were made for the pathologist to work with a speech pathologist to improve his
courtroom presence.
The speech
pathologist met with the witness 40 times prior to trial. The speech
pathologist not only worked with the witness on his demeanor, but also on
how to gloss over the problems with his employment history, as well as how to
answer questions on direct and cross-examination. The deputy district attorney
also provided the speech pathologist with a set of written answers to questions
regarding the pathologists’ background and prior employment. The witness was
also provided with audio tapes with anticipated questions and prepared answers
to those questions.
The opinion
found: “as this training progressed, it went beyond its original purpose
to improve Dr. Gill’s courtroom presence — it tampered with the heart of Dr.
Gill’s testimony to rehabilitate his credibility.” There is nothing in the
opinion that suggested that the deputy district attorney directed the witness
to testify falsely, but the opinion suggests that the deputy district attorney
did not confirm the truthfulness of certain suggested answers.
In In
re Meltzer, 136 A.D.3d 14,
15–16; 21 N.Y.S.3d 63 (2015), the respondent resigned from the practice
of law following a disciplinary investigation alleging that in preparing a
witness for his client's criminal trial, the respondent suborned the witness’s
perjury and false trial testimony. Investigators claimed the respondent
instructed the witness to “downplay” the number of times he met with the
respondent to prepare for trial in the event that he was asked such a question
on cross-examination. It does bear noting that at trial, the witness gave
factually incorrect testimony about the number of times he had met with the
respondent, and the respondent did nothing to correct the false testimony.
Based on the
forgoing authorities, it seems reasonably clear that in preparing a witness for
deposition or trial, it is permissible to advise the witness to focus on
answering the question that was asked and not volunteering information. It is
also permissible to rehearse testimony during witness preparation and to
suggest choices of words that might be employed to make the witness’s meaning
clearer. However, “directing a witness to use (or avoid using) particular
words when phrasing an answer” may well cross an ethical line.
If you are interested in a more detailed discussion of depositions, deposition preparation, and fact discovery, please plan to join us for the practicum on Mastering Fact Discovery on January 15, 2025, at the ABA Forum on Construction Law Midwinter Meeting in Tampa.
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