35 Pages Posted: 3 Nov 2008
Date Written: 2002
Witness coaching has been described as the "dark" - some have even called it dirty - secret of the U.S. adversary system. It is a practice, some claim, that more than anything else has given trial lawyers a reputation as purveyors of falsehood. Witnesses are prepared by lawyers in private, no records are kept, and the participants do not openly discuss the encounter. If false or misleading testimony results, the only persons who know about it are the participants themselves. And the capacity of cross examination to expose improper coaching is extremely limited.
Given its controversial nature, one would expect the practice and ethics of witness coaching to have attracted close scrutiny by courts and commentators. Interestingly, however, the subject has received relatively modest attention. A handful of judicial and ethics opinions have discussed superficially the subject of witness preparation and coaching. Practitioner manuals typically offer general guidance on how to prepare witnesses, and occasionally address tactical and ethical issues involved in coaching. Scholarly commentary has examined the ethical limits of witness preparation, particularly by differentiating acceptable techniques from improper techniques, which promote false or misleading testimony. In addition, popular culture occasionally has dramatized the subject. However, despite a discrete body of literature devoted to witness preparation generally, there has been very little discussion by courts and commentators on witness preparation and coaching by prosecutor.
Suggested Citation: Suggested Citation
Gershman, Bennett L., Witness Coaching by Prosecutors (2002). Cardozo Law Review, Vol. 23, 2002. Available at SSRN: https://ssrn.com/abstract=1292918