The Ethics of Witness Coaching

This Article focuses on the ethics of coaching cooperative lay witnesses (not adversary witnesses or expert witnesses). It discusses mostly United States law, but the problems it discusses exist also in England and other nations that use the common law adversary system. As used here, "witness coaching" means conduct by a lawyer that alters a witness's story about the events in question. Usually witness coaching occurs when a lawyer is interviewing a witness in the course of investigating the facts of the case or when a lawyer is preparing a witness to testify at a deposition or trial.

Interviewing a witness to find out what happened is obviously different from preparing a witness to testify about what happened, but the two tasks blend together in practice. In the typical case, the lawyer initially is mainly investigating and only incidentally preparing the witness to testify; later in the case, however, the converse is true. Sometimes the lawyer has only one chance to talk to the witness before the witness testifies, so the lawyer must do both tasks at once. The ethical concerns are the same for the two tasks, and this Article therefore discusses them together.