The Fine Line of Ethical Witness Preparation

The Ethics of Witness Preparation:

The Fine Line of Ethical Witness Preparation

At its basis the role of a witness is simple – to tell the court the truth about what you observed (in the case of a lay witness) or to provide your professional opinion (in the case of an expert).

This is easy to say, but in practice it can be very difficult to do. Witnesses are at an inherent disadvantage when giving evidence: the formal and unfamiliar setting, the stress and pressure, the need to speak in public, the unusual way of questioning and the unnatural way witness evidence is adduced in court. Add to this an opposing counsel’s professional training to cross examine witnesses, their familiarity and experience in this environment, and preparation for the cross examination itself, and the role of the witness becomes increasingly tough.

It is true that some of these disadvantages can be ameliorated by effective witness preparation. A poorly prepared witness may undermine an otherwise robust case, and the evidence of such a witness may reflect poorly not only on the witness, but also on their organisation, including its structure, management and training syllabus. Conversely a well prepared, well presented witness can strengthen a case, while improving the perception and reputation of their organisation or department.

However, there are very strict rules around this preparation, and for good reason. Indeed, an improperly (and unethically) prepared witness may itself result in a worse outcome in proceedings, as well as worse outcomes for the witness themselves, and their employer. This of course begs the question: where are the lines of ethical witness preparation drawn?

Unsurprisingly, this has been the subject of some judicial consideration, often arising (unfortunately) from cases where witness preparation has been undertaken in an ethically questionable manner. To quote Justice John Griffiths in speech delivered on 5 March 2014:

“There is a fine line between legitimate witness preparation and unethical coaching of a witness. Despite the difficulty of drawing that line, the courts insist upon its maintenance. Whether or not preparation amounts to unethical coaching is necessarily fact specific and involves matters of degree.” ¹

Some Definitions and Concepts

Before we turn to determine where this “fine line” of ethical witness preparation is drawn, it is necessary to consider and define various relevant concepts and activities.

Witness Proofing

Witness proofing is effectively obtaining a written summary of what the witness will say in testimony. It will often form the basis of their affidavit/witness statement and should be kept as a record of this. It is best practice for lawyers to do so as not only does it allow the legal practitioner to fully understand the evidence on which the case is founded, it can serve as a record in the event of any allegations of impropriety in the preparation of a witness. Witness proofs should be undertaken separately for different witnesses, so there can be no suggestion of collusion between witnesses.

As noted by Sheller JA, “It has long been regarded as proper practice for legal practitioners to take proofs of evidence from lay witnesses separately”².

Witness Preparation

Witness preparation is a general term used in respect of the preparation of a witness for cross examination at trial. It often involves a discussion of the witness’ evidence with the legal team in the lead up to trial and may include proofing and types of (ethical) training.

The preparation of witnesses has been considered by the relevant solicitors’ regulatory authorities and can (and perhaps indeed should) include: “Questioning and testing in conference the version of evidence to be given by a prospective witness” and “Drawing the witness’ attention to inconsistencies or other difficulties with the evidence…”³ Similar wording can be found in the various Australian barristers’ rules.

Witness training

Witness training is difficult to define. It is often used as a general term for witness preparation, witness familiarisation⁴, and has been used to describe unethical witness coaching. It can include teaching of a witness techniques and strategies to give effective evidence and to deal with cross examination techniques. It is not unethical per se – indeed in some cases it can be very beneficial to both the witnesses, and the Court receiving evidence. Its ethics, and its efficacy, is a question of circumstance and degree.

Witness training was considered by Lord Justice Judge in R v Momodou and it was found that training to give comprehensible evidence and to develop the ability to resist the inevitable pressure of going further in evidence is allowed. It was stated that “The critical feature of training of this kind is that it should not be arranged in the context of law related to any forthcoming trial, and can therefore have no impact whatsoever on it.”⁵

Witness Coaching

Witness coaching is unethical and rightly prohibited. It is the rehearsal or influencing a witness’ evidence or responses, or “the orchestration of the evidence to be given”⁶. Coaching will occur “when the witness’ true recollection of events is supplanted by another version suggested by the interviewer or other party, whether by repetitive reading of a statement to the point where their testimony is mere regurgitation or by otherwise influencing the witness”⁷.

This common law position is reflected in the professional rules governing Australian legal practitioners. The Australian Solicitors’ Conduct Rules 2015 – Rule 24 (Integrity of Evidence) provides a prohibition on the “coaching” of witnesses⁸, as do the relevant barristers’ regulations⁹.

However, the precise determination of whether witness preparation amounts to coaching is not a simple exercise. It is a matter of degree and will depend on the facts and actions of parties, their respective knowledge and their conduct¹⁰.

Case Law

Having established the legal and ethical framework under which witness preparation must be conducted in the Australian courts (and legal system more generally) it is pertinent to turn to some cases to see what is (and what is not) allowed – to see where the fine ethical line was crossed, and the consequences of doing so.

Australia – Civil Proceeding

The first case we look at is the NSW Civil Case Day v Perisher Blue Pty Ltd [2005] NSWCA 110¹¹. In this case, solicitors were defending a personal injuries action by a ski lift operator who was struck by a wayward skier. The solicitors prepared a letter to one of the witnesses:

• Setting out questions that that witness and other witnesses may be asked and the types of things they should say in response.
• Telling the witnesses to satisfy themselves that certain things were the case, in particular, things like:
  • • The number of guests skiing that day.
    • The signage.
    • The distance to the stop button ‘because we intend to adduce evidence that it wasn’t too far…’
    • The general conditions at the ski lift that day.
• Telling that witness to tell another witness to familiarise himself with things which he doesn’t know anything about.
• Asking that witness to pass the letter on to the other relevant witnesses¹².

Unsurprisingly, this was found to be witness coaching. It influenced the evidence to be given, and a new trial was ordered. The Defendant’s solicitors were asked to show cause as to why the matter shouldn’t be referred to the Legal Services Commissioner, and the matter was subsequently referred to the Commissioner¹³.

Australia – Criminal Proceeding

A further relevant case is Majinski -v- The State of Western Australia [2013] WASCA 10¹⁴. This was a West Australian criminal case regarding sexual offences against a child. The identity of the defendant was likely to be an issue in the proceedings.

The complainant child had met with the prosecutor during which a “wide-ranging and comprehensive” discussion was had. The prosecutor:

• Showed the complainant an earlier interview with the complainant;
• Invited complainant to comment or respond to questions upon aspects of the evidence; and
• Showed the complainant a photo of the accused and asked him to identify him.

At the trial, the appropriateness of the prosecutor’s conduct was called into question. It was found that:

• Showing the complainant a video of his previous evidence and speaking with him about his evidence and what he might be asked about did not cross the boundary of propriety¹⁵.
• Showing photograph of the defendant when the issue of the defendant’s identity was likely to be an issue was more problematic. It was inappropriate in the circumstances. However, there was found not to be any coaching because there was no prejudice to the evidence itself, primarily because the complainant stuck to his oral evidence regarding identification and was not influenced by the prosecutor’s conduct¹⁶.

It was held that the “boundary of impropriety is only crossed if the course taken by the prosecutor has the effect of suggesting to the witness the evidence that should be given, either expressly or implicitly.”¹⁷ Thus, despite the inappropriate conduct by the prosecutor, witness coaching was avoided because the inappropriate conduct did not affect the evidence given.

English Case Law

Prosecution conduct was also in issue in the case of R v Momodou [2005] EWCA Crim 177¹⁸, an English criminal case. This involved a riot by inmates at an immigration detention facility in UK. As part of the resulting criminal trial, various guards took sessions with a third-party witness trainer. This training was one of the grounds for appeal of the conviction.

As part of the training, the guards were set into groups of eight and given a “hypothetical” scenario to discuss. The “hypothetical” scenario was a riot at a fictious immigration detention facility where they were also guards – effectively the same set of substantive facts. They also conducted “debriefing” sessions between groups of the guards on the actual evidence.

It was held that the training offered was “wholly inappropriate and improper”¹⁹. Of particular issue with the similarity of the case study and the fact that evidence was discussed in groups. However, in this case the improper training did not undermine the safety of the conviction because the jury was aware of the training programme conducted and the trial judge gave a strong warning to the jury of the evidentiary dangers involved with it²⁰.

Finally, we look to another English criminal case, R v Salisbury [2005] EWCA Crim 3107²¹. This was a murder trial in which one of the prosecution witnesses had attended a “witness familiarisation” training course provided by an independent third party witness training provider. One ground of appeal by the defendant was that the evidence provided by this witness was inadmissible on account of the familiarisation training course²².

The course itself was delivered by a member of the Bar who was well aware of the ethical obligations surrounding witness preparation. The witness on the course was told of the possible consequences of collusion and was forbidden to discuss their actual evidence. The training was not conducted in respect to facts of the case, nor anything remotely resembling them, rather the witness underwent a process of familiarisation with the pitfalls of giving evidence and was instructed how best to prepare for the ordeal of giving evidence under cross examination²³.

The court held that it “was an exercise any witness would be entitled to enjoy were it available.” What the witness received was merely a knowledge of process involved which enabled the witness to give a sequential and coherent account. This was different from the objectionable coaching of witnesses²⁴.

Witness Training as part of Witness Preparation

While considering the ethical standards which must be met in the preparation of witnesses, these cases also look at the role of formalised witness training in the context of witness preparation. The rise of such training organisations is a relatively new innovation in Australia, however is common (and indeed best practice) in England and Wales where such training was developed.

Typically this training (like in R v Salisbury – above) is conducted by third party training organisations separately and independently of any underlying legal proceedings. Crucially, this training is not proofing or witness preparation by the witnesses’ legal team or their department or organisation. Witness training is a separate service which complements this preparation, rather than replaces it²⁵.

Such training must of course adhere to strict requirements to ensure it complies with the ethical obligations demanded of practitioners and by the law more generally. Crucially this training is conducted independently. It is conducted by independent third party organisations with no knowledge of the underlying proceedings, using independent materials prepared prior to and with no knowledge of the underlying proceedings. This material is chosen by the independent third party. The instructor is an independent barrister – not only independent of any proceedings, but also governed by the relevant ethical conduct rules²⁶.

This strict focus on independence ensures that there can be no risk of coaching as there can be no risk of influencing the actual evidence to be delivered. Furthermore, it does not involve any discussion of underlying evidence itself by participants. This is strictly prohibited and discussion relates solely to the independent, hypothetical scenarios posed.

Such training, when done properly, will allow for an enhanced and improved level of witness preparation, beyond what the legal representatives and other stakeholders can provide, and in this way can help improve witness confidence and understanding. This allows the witness to present their own evidence to the court in a more coherent, confident and effective manner. This in turn benefits the court, which will be provided with an improved quality of evidence. It avoids the risk of legal team or other related party or organisation doing themselves and thus avoids any risk of real or perceived impropriety. In this way both the witness and their organisation can be assured that the witness will present in the best way possible.

This process “may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness’ own uncontaminated evidence.”²⁷

Some Common Themes

Some common themes arise from the above cases. At the outset we see the importance of witness preparation as part of any trial. It is essential that the witness is properly prepared and legal representatives and organisations go to great lengths to do so.

However, such preparation must not amount to witness coaching – it must not influence the evidence to be given. It (obviously) cannot tell the witness how to answer a question directly, but also cannot implicitly suggest this, such as through the provision of other relevant information, or constant rehearsal of responses. The witnesses cannot discuss their evidence between themselves, and care must be taken by their representatives and organisation to ensure this.

We can also see the wider effects of witness preparation – on the underlying proceedings and the relevant stakeholders. Unethical witness preparation will be censured. It may result in the loss of the proceedings, an appeal (and potentially acquittal or re-trial) and may even result in criticism of the witness, their representatives or organisation.

Conversely, we can also see how independent third party training providers can potentially benefit and assist legal representatives and organisations with training for individuals who will be giving, or likely to be giving evidence. There are specific requirements to ensure that this training is conducted within the ethical requirements (including in particular the requirement for independence) and when conducted properly they can be of great benefit to witnesses and stakeholders.

Conclusions

While there are many considerations in the preparation of witnesses for trial, it is essential that such preparation is done, it is done well, and that it is done ethically. A failure to properly prepare witnesses for trial may result in a nervous and incoherent witness, unable to effectively articulate their evidence to a court, and thus may appear unimpressive, unconvincing, or even evasive.

Conversely, a well prepared witness will be able to present their own evidence to the court in a more composed, coherent and effective manner, to the benefit of the court and the judicial process. Such a well prepared and confident witness will also reflect positively on their organisation or department, who can be reassured that their witness will present in the best way possible.

However, in preparing a witness it is essential that strict ethical boundaries are rigorously observed. Such preparation of witnesses can (and ideally should) involve proofing the witness. It can also involve discussing with witnesses (individually) the strengths and weaknesses with their evidence, and the evidence of opposing witnesses. However, it cannot amount to the suggestion to a witness of how to answer a question – any influencing of the evidence to be given. This is coaching. It is prohibited, and to engage in such conduct will result in censure of the witness, their legal team and potentially even their organisation, as well as adversely impact any proceedings they are involved in.

Additionally, third party witness training organisations exist to facilitate the training of individuals likely to be giving evidence in an ethical and effective manner. Crucially, these training providers and their trainers are independent – both of any underlying proceedings and of the witness’ organisation itself. As such there can be no suggestion of coaching and the fine ethical line of witness preparation can be ensured.

About the author:

Tom Nevin is a practising solicitor and director at Loquitur, Australia’s leading witness training provider. Tom is dual qualified in both Australia (Queensland) and England & Wales, and has practiced extensively across both jurisdictions. He has an expertise in litigation – primarily commercial litigation – and has worked in both private practice, in-house and in Government departments.

The original article can be viewed here.

¹ Speech by Justice John Griffiths, 5 March 2014:  “Some Ethical Issues for Legal Practitioners” at para 17 (https://www.fedcourt.gov.au/digital-law-library/judges-speeches/justice-griffiths/griffiths-j-20140304)

² Sheller JA, in Day v Perisher Blue Pty Ltd [2005] NSWCA 110 at para 30.

³ Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015, Rules 24.2.2 and 24.2.3:  https://legislation.nsw.gov.au/view/html/inforce/current/sl-2015-0244#sec.24

⁴ See below, and also https://loquitur.com.au/about/what-is-witness-familiarisation/

⁵ [2005] EWCA Crim 177 at 62:  https://www.bailii.org/ew/cases/EWCA/Crim/2005/177.html

⁶R v Salisbury [2005] EWCA Crim 3107 at 60 (quoting paragraph 27 of the original unreported judgement):  https://www.bailii.org/ew/cases/EWCA/Crim/2005/3107.html

⁷ Majinski -v- The State of Western Australia [2013] WASCA 10 at 32 citing Momodou (below)

⁸ Australian Solicitors’ Conduct Rules 2015 – Rule 24.

⁹ Legal Profession Uniform Conduct (Barristers) Rules 2015 – Rules 69 and 70.

¹⁰ Majinski at para 30 .

¹¹http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/nsw/NSWCA/2005/110.html

¹² Day v Perisher Blue Pty Ltd [2005] NSWCA 110 at para 22.

¹³Day v Perisher Blue Pty Ltd [2005] NSWCA 110 at paras 35 and 36.

¹⁴ https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/wa/WASCA/2013/10.html

¹⁵ Majinksi at para 40.

¹⁶ Majinksi at para 41.

¹⁷ Majinksi at para 40.

¹⁸ https://www.bailii.org/ew/cases/EWCA/Crim/2005/177.html

¹⁹ Momodou at para 45.

²⁰ Momodou at para 67.

²¹ https://www.bailii.org/ew/cases/EWCA/Crim/2005/3107.html

²² Momodou at para 55 onwards.

²³ At 60, citing paras 27 to 29 of the original unreported judgement.

²⁴ At 60, citing paras 27 to 29 of the original unreported judgement.

²⁵ https://loquitur.com.au/witness-skills/witness-skills-benefits/.

²⁶ See, for example https://loquitur.com.au/faqs/.

²⁷ Lord Justice Judge, in Momodou at para 62.