Witness Preparation for Prosecutors: Pitfalls and Best Practices

Authored by Howard J. Zlotnick

Abstract

In describing witness preparation, the nineteenth century novelist James Fenimore Cooper coined the term “Horse-shedding the witness,” referring to the carriage sheds near the courthouse where lawyers prepared their witnesses.  The expression carries a seedy flavor of lawyers engaging in unethical conduct to coach testimony rather than professionally preparing witnesses to testify properly.

Despite the connotation, American jurisprudence recognizes that competent trial preparation involves interviewing and preparing witnesses before they testify.  Indeed, it is legitimate and ethical for counsel to confer with witnesses before they give testimony in a trial.  Witness preparation is a standard practice associated with diligent preparation and zealous representation.

Unlike American trial lawyers, British barristers are prohibited from speaking to witnesses—except their clients, experts, and some character witnesses—before their trial testimony.  The justification is to ensure the witness’s testimony is “of the witness and not the result of the advocate’s interrogation of the witness in circumstances in which the witness is liable to seek to adopt the advocate’s perception of the events rather than his own recollection of those events.”  In England, the solicitor—not the barrister—interviews witnesses and prepares them for trial.

However, preparing a witness to testify is well ingrained in the United States and a crucial skill for prosecutors. Indeed, the presentation of complex criminal cases often involve numerous criminal transactions occurring in many locations over a long period.  Frequently, numerous witnesses are interviewed and prepared to testify—they run the gamut from victims, eyewitnesses, law enforcement, experts, and include unsavory accomplices, testifying under plea agreements, informants, and immunized witnesses.

Some commentators complain that prosecutor’s witness preparation practices encourage misleading testimony.  These individuals assert the prosecutor’s failure to document these coaching sessions eliminates inconsistencies and embarrassing details that prosecutors should have provided to opposing counsel.  One commentator alleged this improper conduct goes undetected because the witness preparation sessions are private.  This Article will further demonstrate that a skeptical view is incompatible with the accepted practices of professional prosecutors who are not ordinary litigants but ministers of justice.  Although some prosecutors fall below the “minister of justice” standard, they are the rare exception.

The Supreme Court recognized the ethical line between a lawyer discussing testimony and improperly influencing a witness’s testimony.  Experienced prosecutors realize the difference between legitimate witness preparation and improper witness manipulation, called “coaching.”  In 1880, Judge Francis Finch clearly explained the distinctions between permissible and unethical witness preparation by a lawyer:  “His duty is to extract the facts from the witness, not to pour them into him, to learn what the witness does know, not to teach him what he ought to know.”

Proper preparation of a witness rejects the improper coaching and pouring facts pitfalls flagged by Judge Finch.  As highlighted by this Article, solid witness preparation is critical for a clear and accurate case presentation before a judge or jury.  Placing the witness on the stand without preparing yourself and the witness will damage the overall case.  All too frequently, police officers and detectives complain that state court prosecutors have them testify without any preparation for the hearing or trial.  The same can be said for critical witnesses and victims who have often never testified in court.  Presenting any unprepared witnesses can hurt an otherwise compelling case and violate the duty of competence required of an attorney.  Prosecutors should never delegate witness preparation to a case agent or paralegal; instead, the lawyer handling the witness must do it.

With this backdrop, this Article covers the fundamentals of proper witness preparation, within ethical boundaries.  Part I describes the fundamental goals of witness preparation.  Part II discusses the steps a prosecutor should undertake before the pre-trial interview.  Part III covers the topics to discuss with the witness.  It also identifies pitfalls prosecutors should avoid, preventing bending or wrongfully influencing a witness’s testimony.  Finally, Part IV outlines best practices for preparing specific witnesses: experts, eyewitnesses, and accomplices.