22 Pages Posted: 14 Apr 2012
Date Written: 2011
Witness preparation is considered by most criminal attorneys to be an essential part of trial advocacy. This paper addresses the ethical restraints on this common practice. It looks at whether the ABA Model Rules of Professional Conduct and/or the proposed ABA Criminal Justice Standards give sufficient regulation and guidance. It then suggests several factual scenarios where the current standards and rules give very little guidance. This paper suggests that the American Bar Association’s Criminal Justice Standards should include guidelines that direct the criminal attorney to avoid conduct that may not be intended to influence the witness to testify falsely, but which by its nature may have the potential to create false testimony. Additionally, the standard should contain a list of attorney conduct that could unintentionally produce false testimony. Finally, this paper proposes two standards that might provide some guidance in this important area of trial preparation that is routinely practiced, hidden from view, and many times difficult to expose.
Keywords: Witness preparation, criminal attorney, standards
Suggested Citation: Suggested Citation
Flowers, Roberta Kemp, Witness Preparation: Regulating the Profession's 'Dirty Little Secret' (2011). Hastings Constitutional Law Quarterly, Vol. 38, No. 4, p. 1007, 2011; Stetson University College of Law Research Paper No. 2012-9. Available at SSRN: https://ssrn.com/abstract=2039480