This came up in a discussion.
I think anyone who has participated in a moot or watched questioning in court will know that it’s very difficult to have a pre-thought-out answer for every answer that is given to you – you often have to answer/reason/mull over on the spot. That said, it seems to me that the line between what is and what isn’t coaching is a bit fuzzy. Obviously we should never tell a witness to say something which we know is false – that would be breaching a whole bunch of duties lawyers owe, as well as be facing possible criminal sanctions. But is it okay to, for example, advise a witness to use one word over another?
In Preparing witnesses: a practical guide for lawyers and their clients by Daniel I. Small, it states: ‘Witness coaching takes place when a lawyer makes suggestions that modify witness’s story and/or create a deviation from the truth.’ Presumably then, using the word ‘hit’ instead of ‘smash’ isn’t witness coaching (as Small gives as an example). I guess the best guideline we have is to remind the witness that he/she should tell the truth no matter what, and to not give or suggest answers to possible questions, or to give the exact questions which you will ask. Also it will discredit the witnesses’ reliability and it is illegal under the WA evidence rules and probably a good way to be facing the Legal Practice Board which is about as fun as a smack in the head.
Thursday, October 22, 2009
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