Coaxing, Coaching, and Coercing: Witness Preparation by Prosecutors Revisited
34 Pages Posted: 24 Jul 2018
Date Written: July 24, 2018
Witness preparation is a staple of good trial practice for prosecutors. A single ineffective or unprepared witness might imperil an otherwise airtight case. Yet there is a line between readying witnesses for trial and “coaching” them in a way that perverts their testimony. As the Supreme Court proclaimed more than 40 years ago, “[a]n attorney must respect the important ethical distinction between discussing testimony and seeking improperly to influence it.” The line between proper discussion and improper influence can be hard to discern. And for prosecutors, the most powerful players in our criminal justice system, the inability to toe this line can lead to the conviction of innocent defendants.
Bennett Gershman has thought deeply about these issues, as is his wont. Using his 2002 article on the topic of witness coaching as a launching pad, this Article will take a renewed look at the ethics of witness preparation by prosecutors.
Keywords: criminal law, criminal procedure, wrongful convictions, prosecutorial ethics, professional responsibility, trial advocacy, witness preparation
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