Preparing Witnesses
| Author | Peter Lyons |
| Pages | 89-97 |
This is a vexed subject. In some countries, lawyers hold expensive full-scale dress rehearsals of upcoming trials: complete with mock juries and judges.
In other places, witnesses are prepared for trial by videoing and voice coaching.
But in countries such as England and Wales the ability to prepare witnesses for trial is strictly controlled.
I remember the first time I briefed an English barrister. About an hour before court began I asked him if he wanted to meet our witnesses. He recoiled in horror. He wasn’t allowed to. I compounded the faux pas by saying ‘Don’t you want to see what they look like? One might have a facial tic. It might throw you if the witness box was the first time you saw him twitch.’
Nowadays the rules are more relaxed. In the Guidance Notes to the English Bar Standards Board’s Code of Conduct it says that a barrister is:
‘entitled and it may often be appropriate to draw to the witness’s attention other evidence which appears to conflict with what the witness is saying and [the barrister] is entitled to indicate that a court may find a particular piece of evidence difficult to accept. But if the witness maintains that the evidence is true, it should be recorded in the witness statement and [the barrister] will not be misleading the court if [he or she calls] the witness to confirm their witness statement.’
1 Encouraging false evidence
The rule in England for barristers is that they ‘must not encourage a witness to give evidence which is misleading or untruthful’.
It goes further in Australia. ‘A barrister must not advise or suggest to a witness that false or misleading evidence should be given; nor condone another person doing so ...’.
In the United States, under the title of Candor Toward the Tribunal, the rule is that ‘a lawyer shall not knowingly offer evidence that the lawyer knows
90 Advocacy: A Practical Guide
to be false. If a lawyer ... has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures’.
Look at the loopholes: ‘knowingly’; ‘he (the lawyer) knows to be false’; ‘material evidence’.
2 Coaching
The English rule is stark. A barrister must ‘not rehearse, practise with or coach a witness in respect of their evidence’.
The original Middle English definition of the word ‘rehearse’ means to repeat aloud and we all know what it means to rehearse for a play. The word ‘practise’ means to perform (an activity) or exercise (a skill) repeatedly or regularly in order to acquire, improve or maintain proficiency in it. To ‘coach’ means to train or instruct.
In Australia, a barrister ‘must not coach a witness by advising what answers the witness should give to questions which might be asked’.
To the English and Australian positions, there are certain qualifications.
2.1 England
You must not knowingly or recklessly mislead or attempt to mislead anyone.
You must not draft any statement of case, witness statement, affidavit or other document containing:
‘a. any statement of fact or contention which is not supported by your client or by your instructions;
b. any contention which you do not consider to be properly arguable;
...
d. any statement of fact other than the evidence which you reasonably believe the witness would give if the witness were giving evidence orally.’
You must not ask questions which suggest facts to witnesses which you know, or are instructed, are untrue or misleading.
2.2 Australia
A barrister:
‘does not breach the main rule by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not...
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