Witness Preparation: Regulating the Profession's Dirty Little Secret

Although all attorneys understand that coaching a witness to testify falsely is unethical, additional ethical restraints surrounding witness preparation in criminal cases are not clearly defined by case law, rules of professional conduct or even the newly drafted Criminal Justice Standards for Prosecutors and Defense Attorneys. Many have suggested that the line between proper witness preparation and improper witness coaching is not clear. This article explores some of the gray areas of the practice of witness preparation and why criminal attorneys from both sides of the aisle need guidance on permissible and impermissible conduct in this routine practice of criminal law. The article investigates the practice of interviewing witness together; preparing witness after a sequestration order and divulging information to witnesses about the factual and legal issues in the case.

All of these practices have acceptable uses and unacceptable abuses. The author suggests that the New Standards should incorporate standards that address these issues in witness preparation in order to guide the practitioner to prepare witnesses properly instead of coaching them improperly.