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07 Sep 2015

Preparing witnesses: victim support or obstructing justice?

Where should the law draw the line between making sure a witness is adequately prepared to give of their best in court and ‘coaching’ them to give prepared answers? Where does a distinction emerge between preparing a proof of evidence for a witness, itself normal practice, and telling them what evidence they should give? A recent case from the USA may provide an interesting perspective on this question.

Two Chicago defense attorneys, Beau Brindley and Michael Thompson, were recently charged with, and this week acquitted of, encouraging witnesses to lie under oath and obstruct the course of justice. The attorneys were accused of coaching witnesses in five criminal trials to lie before a jury, with the prosecution relying on a series of scripted question-and-answer documents for its evidence, as well as an e-mail from Brindley in which he told an associate that he “bolded a few important questions and answers I think he should give.

Certainly, Brindley was under no impression that his conduct could be considered anything other than legal and proper. The idea of putting together a paper Q&A, he claimed, was one had borrowed from prosecutors, and as his own lawyer at trial, Cynthia Giachetti, had told the court, the fact of witnesses appearing to change their stories was inconclusive since “the fact of the matter is people lie to their lawyers.

In deciding to acquit the pair, US District Judge Harry Leinenweber seems to have agreed. The typed answers from the Q&A documents were found not to have been false. However, to a practitioner in England and Wales, the idea that a lawyer could provide his witnesses with a set of questions and answers, with a few crucial ones highlighted for good measure in advance of a trial, would in all likelihood look distinctly dubious.

Most lawyers would not, presumably, find the idea of treating a witness courteously and with patience to be very controversial, both in court and outside of it. If nothing else, it is possible to alienate a judge or jury by being needlessly belligerent with a particularly shaken witness who is obviously finding their situation stressful. Indeed, both barristers and solicitors have codes of conduct which remind them of their obligations to treat witnesses in this fashion, whilst also providing strict instructions to avoid anything which might give the appearance of ‘coaching’ a witness.

The principles set out by Judge LJ in R v Momodou (Henry) [2005] EWCA Crim 177 make a very clear distinction between familiarisation and coaching; between accommodation of a witness and trespassing on the actual substance of their testimony. The appeal sprang from a criminal trial following a disturbance at Yarl’s Wood immigration detention centre in February 2002. Several of the officers who gave evidence for the prosecution had been given ‘witness training’ involving discussion of their statements prior to the trial. The Judge at first instance had directed the jury that this practice was improper, and severely undermined the creditworthiness of those who had undertaken it. In the subsequent appeal His Lordship said that:

The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so… This principle does not preclude pre-trial arrangements to familiarise the witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants… None of this however involves discussions about proposed or intended evidence. ’

This guidance exists in parallel with a growing appreciation of the principle that certain witnesses may also require careful handling if the manner of their cross-examination is not to undermine the fairness of their trial. Particularly in cases involving child witnesses, there has been a recognition that certain aspects of what might be called the ‘dark arts’ of advocacy, such as the frequent use of tag questions or double negatives, take unfair advantage of the fact that a child or a trauma victim may be uniquely poorly equipped to deal with such questions, regardless of the merits or otherwise of their case.

This has been addressed extensively in the work of, for example, the Advocacy Training Council Vulnerable Witness Training Group, which prepares barristers for the task of handling such witnesses sensitively. The Youth Justice and Criminal Evidence Act 1999 gives the court the ability to deploy special measures to protect those witnesses identified as vulnerable, such as a witness speaking from behind a screen or in a less formal courtroom setting. It cannot be denied that the courts now appear to take the task of witness familiarisation very seriously. Its attitude to coaching, however, remains uncompromising.

Recently proposed Draft CPS Guidance on Speaking to Witnesses at Court, a consultation on which was launched by Alison Saunders, the Director of Public Prosecutions, in January this year, aimed to provide clarification on this area so as to better balance these two vital components of a fair trial. It provided guidance on, among other things, meeting a witness at court and assisting them with various aspects of court procedure. However, it also included the not-uncontroversial proposition that prosecutors should also inform their witnesses of, for example, the general nature of the defence case (where it is known), or the fact that some piece of third party material has been disclosed which may undermine their case. The Draft guidelines do contain provisions stating that the prosecutor should be careful to avoid any discussion of the factual basis of the case, but one could make the argument that it is unclear from the guidelines how such a distinction would be observed.

In an issue of ‘Counsel’ published in March, Saunders was offered space to clarify her position, along with having them contested by Tony Cross QC, representing the Criminal Bar Association.  Cross outlined a number of practical objections to the workability of the proposals; what happens if there are twenty witnesses of fact in a long and complex case, all of whom need to be prepared, or if a number of defendants decide to run a ‘cut-throat’ defence against one another? But his primary objection was that:

‘This attacks a fundamental principle of our adversarial system. The Crown brings the case and they must prove it. It is no part of the task of anyone connected with the prosecution of the case to warn a witness as to the likely defence.’

Cross argues that the focus of any attempt to ensure witnesses give better evidence should be directed at the reporting and policing stage of a criminal investigation, rather than at trial. It seems obvious, for the time being at least, that this kind of extensive preparation of witnesses before trial runs somewhat too close to the danger of ‘coaching’ to be comfortable to many legal professionals in England and Wales. If Brindley and Thompson were faced with similar charges in this jurisdiction, they may well have found that the courts would not have been so understanding.

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