Witness Coaching by Prosecutors\u00a0 \u00a0> See full article in > Pace Law Faculty Publications.<\/p>\n
((The below is copied from a news article and some errors were created by the software.))
\nBennett L. Gershman*
\nWitness coaching has been described as the ”dark”l-some
\nhave even called it “dirty secret of the U.S. adversary system.”
\nIt is a practice, some claim, that more than anything else has given
\ntrial lawyers a reputation as purveyors of falsehood^.^ Witnesses
\nare prepared by lawyers in private, no records are kept, and the
\nparticipants do not openly discuss the encounter. Of false or<\/p>\n
misleading testimony results, the only persons who know about it
\nare the participants themsel~es.~ And the capacity of crossexamination
\nto expose improper coaching is extremely limited?
\nGiven its controversial nature, one would expect the practice
\nand ethics of witness coaching to have attracted close scrutiny by
\ncourts and commentators. Interestingly, however, the subject has
\nreceived relatively modest attenti~n.A~ handful of judicialg and
\nethics opinionsI0 have discussed superficially the subject of witness<\/p>\n
preparation and coaching. Practitioner manuals typically offer
\ngeneral guidance on how to prepare witnesses,]’ and occasionally
\naddress tactical and ethical issues involved in coaching.12 Scholarly
\ncommentary has examined the ethical limits of witness
\npreparation, particularly by differentiating acceptable techniques
\nfrom improper techniques, which promote false or misleading
\ntestimony.13 In addition, popular culture occasionally has
\ndramatized the subject.I4 However, despite a discrete body of
\nliterature devoted to witness preparation generally, there has been
\nvery little discussion by courts and commentators on witness
\npreparation and coaching by prosecutor^.’^
\nThe absence of critical examination of witness coaching by
\nprosecutors is puzzling for two reasons. First, there is an
\nincreasing concern among courts, lawmakers, and commentators
\nthat some prosecutors use the adversary system not to serve truth,
\nbut for self-serving purposes.16 According to thls view, the conduct<\/p>\n
of some prosecutors in investigating cases and preparing witnesses
\nto give testimony is undertaken not to ascertain, present, and
\nprotect the truth, but rather to manipulate the truth in order to
\nsecure a conviction.
\nSecond, there is an increasing concern-amply documented
\nby recent reports of wrongful convictions-that the criminal justice
\nsystem is seriously prone to error.” Critics contend that these
\nerrors are attributable to defects in the adversarial trial process,
\nmostly from incompetent representation by defense lawyers and
\ntrial errors by prosecutor^.^^ However, recent disclosures suggest
\nthat the origin of many, perhaps most, of these miscarriages of
\njustice occurs before the cases actually reach the courtroom for<\/p>\n
trial. Indeed, the inability of criminal trials to produce accurate
\nresults may be attributable in many cases to techniques used by
\nprosecutors to prepare, shape, and polish the testimony of their
\nwitnesses.
\nAbsent any contemporaneous record of a prosecutor’s pretrial
\ninteraction with witnesses,19 it is exceedingly difficult for observers
\nto investigate the preparation process to ascertain the extent to
\nwhich prosecutors or police may have improperly influenced
\nwitnesses overtly, covertly, or even unwittingly to give false or
\nmisleading testimony.20 Moreover, the difficulty of analyzing the
\nwitness-preparation process is compounded by the failure of courts
\nand prosecutors to recognize or appreciate how cognitive factors
\nsuch as memory, languages, and suggestion can affect the
\naccuracy and truth of a witness’s testimony.
\nGiven the secrecy surrounding the prosecutor’s preparation of
\nher witnesses and the inability to review the process meaningfully,
\nit is virtually impossible to ascertain whether and to what extent
\nwitnesses have been coached by prosecutors and police to give
\nfalse or misleading testimony. Nevertheless, inferences can be
\ndrawn from cases, commentary, and empirical evidence to
\nilluminate this murky process. First, it is indisputable that some
\nprosecutors coach witnesses with the deliberate objective of
\npromoting false or misleading testimony. Prosecutors do this
\nprimarily to (1) eliminate inconsistencies between a witness’s
\nearlier statements and her present testimony, (2) avoid details that<\/p>\n
might embarrass the witness and weaken her testimony, and (3)
\nconceal information that might reveal that the prosecutor has
\nsuppressed evidence.
\nAdditionally, prosecutors have the ability, consciously or
\nunconsciously, to strengthen the case by questions and suggestions
\nthat cause the witness to fill gaps in memory, eliminate ambiguities
\nor contradictions, sharpen language, create emphasis, and alter
\ndemeanor. Some witnesses, moreover, are vulnerable to
\nprosecutorial suggestions, or receptive to prosecutorial cues.
\nIndeed, the prosecutor’s interaction with the cooperating witness is
\na paradigmatic example of the dangers and abuses of coaching.
\nFinally, the absence of any contemporaneous record of the
\nprosecutor’s preparation of witnesses encourages improper
\ncoaching by hiding the process from meaningful oversight by
\ncourts or defense counsel. Without some basis to believe that
\ncoaching occurred, a court would not invoke prophylactic
\nsafeguards to detect or prevent coaching. And absent any
\ndocumentation of the witness-preparation process, the defense
\nlawyer has no basis to challenge the witness’s testimony as the
\nproduct of improper conduct by the prosecution.
\nA. Incentives for Coaching
\n1. Eliminate Discrepancies
\nA prosecutor bent on obtaining a conviction may attempt to
\neliminate any significant inconsistencies in a witness’s testimony.
\nSome prosecutors overtly influence their witness to alter
\nmaterially an earlier, inconsistent version. In Kyles v. Whitle~a, ~~
\ncapital murder case, the prosecutor elicited testimony from Isaac
\nSmallwood, a key eyewitness who gave an extremely detailed
\ndescription of the killing. Smallwood claimed he saw Kyles
\nstruggle with the victim, produce a small, black .32 caliber gun
\nfrom his right pocket, shoot the victim, and then drive off in the
\nvictim’s LTD.25 The prosecutor argued to the jury: “Isaac
\nSmallwood, have you ever seen a better witness[?]”26
\nHowever, in a statement Smallwood made to the police
\nshortly after the killing, which the prosecutor did not disclose to
\nthe defense, Smallwood gave a vastly different account of the
\ncrime. He told the police that he did not see the actual killing, did<\/p>\n
not see the assailant outside the victim’s vehicle, and saw the
\nassailant for the first time driving toward him in a Th~nderbird.~’
\nThe U.S. Supreme Court reversed the conviction because the
\nprosecutor violated his constitutional obligation to disclose this
\ninformation to the defense.28 The majority opinion, however,
\nnoted how Smallwood’s original story apparently had been
\n“adjust[ed]” by the prosecutor by the time of the Disclosure
\nof the earlier statements, the majority observed, not only would
\nhave “destroyed confidence in Smallwood’s story,” but also would
\nhave “rais[ed] a substantial implication that the prosecutor had
\ncoached him to give it.”30
\nA major incentive for prosecutors to use cooperating
\nwitnesses is to support an uncertain but consistent version of the
\nfacts, rather than to confirm an inconsistent version of the facts
\nthat may represent more of the truth.” As an example, one writer
\ndescribes a proffer session in which a cooperating witness has
\nidentified several people as being present at a meeting to
\ndistribute The witness fails to identify a particular
\nindividual as being present. The prosecutor, however, firmly
\nbelieves from other evidence that this person was present at the
\nmeeting. When asked specifically whether this person was present,<\/p>\n
the witness repeats that he was not present. The witness is asked:
\n“Are you telling me that [he] was not there?” The witness now
\nknows what the prosecutor wants to hear. After a break, when the
\nwitness is asked again, he now remembers that this individual was
\nthere.
\n2. Avoid Embarrassing Details
\nSome prosecutors attempt to influence the testimony of
\nwitnesses to conceal information that might embarrass the witness
\nand weaken the prosecutor’s case. As a consequence, the witness
\nmay be coached to give testimony that may be literally true but
\ncreates a false or misleading impression, while allowing the
\nprosecutor to avoid a charge of outright solicitation of perjury.
\nOne method of evasion is to instruct the witness to claim a lack of
\nmemory or knowledge about a question that may be embarrassing
\nor otherwise harmful.” A prosecutor might reinforce this subtle
\nmessage by reassuring the witness that while he has a duty to
\nanswer every question truthfully, an answer such as “I don’t know”
\nor “I don’t remember” is a perfectly acceptable response when the
\nwitness is not absolutely certain of the answer.34
\nAnother strategy of concealment is to instruct the witness to
\nanswer only the question asked, and not to volunteer
\ninformati~n.~A~n example is Alcorta v. Texas,3Yn which the
\nSupreme Court reversed the defendant’s murder conviction for
\nstabbing his wife to death. The defendant admitted the killing but
\nclaimed it occurred in a fit of passion after discovering his wife,<\/p>\n
whom he had already suspected of marital infidelity, kissing one
\nCastelleja late at night in a parked car. Castelleja, the only
\neyewitness to the killing, testified that his relationship with the
\ndeceased had been nothing more than a casual friend~hip;~an d
\nthat he had driven her home from work on the night she was
\nkilled.
\nHowever, during pretrial preparation, the witness told the
\nprosecutor that he had had sexual intercourse with the defendant’s
\nwife on five or six occasions shortly before her death. This fact, if
\nknown or believed by the defendant, would have provided the
\ndefendant with a powerful motive for the killing. The prosecutor
\nadvised the witness that he should not volunteer any information
\nabout sexual intercourse but if specifically asked about it, to
\nanswer truthf~lly.T~h~e prosecutor’s questions at trial, as reflected
\nin one significant colloquy, were obviously designed to allow the
\nwitness to give literally truthful answers about his relationship with
\nthe deceased while carefully avoiding the subject of his sexual
\nconduct with the de~eased.~’
\n3. Conceal Suppressed Evidence
\nA prosecutor may be motivated to engage in improper
\ncoaching to prevent the revelation of material information that the
\nprosecutor did not disclose to the defense as required by due
\nprocess.”O Needless to say, a prosecutor who is predisposed to
\nviolate his constitutional and ethical obligation to disclose
\nfavorable evidence to a defendant is also capable of molding her
\nwitness’s testimony to protect the nondisclosure from being<\/p>\n
discovered.” Indeed, it is arguable that every case in which a
\nprosecutor deliberately conceals exculpatory evidence from the
\ndefense may also involve an effort by the prosecutor to coach the
\nwitness’s testimony to hide the suppression.
\nIn Walker v. City of New Y~rkf,o~r e~x ample, a prosecutor
\nalmost certainly coached a cooperating witness to give false
\ntestimony to conceal from the defense information that would
\nhave undermined the witness’s credibility. Walker describes a
\nprosecutor’s debriefing and preparation of a cooperating witness
\nin an investigation of the robbery of an armored truck and murder
\nof the truck driver. At the initial proffer session, the witness
\nidentified two individuals as having participated in the crime. The
\nprosecutor subsequently learned, however, that one of these
\nalleged accomplices could not have committed the crime because
\nhe was in prison on the date of the robbery. Undeterred, the
\nprosecutor elicited testimony from the cooperator in the grand
\njury and at trial that did not mention a second accomplice. The
\ndecision by the Second Circuit condemned the prosecutor’s failure
\nto disclose the inconsistency. The court did not discuss the reason
\nfor the witness’s failure to mention the existence of a second
\nperpetrator, an omission that undoubtedly resulted from careful
\ncoaching by the prosec~tor.~~
\nB. Cognitive Factors Facilitating Coaching
\n1. Memory
\nAn extensive body of scientific literature holds that memory is
\nhighly fallible, and the process of memory retrieval and
\nreconstruction extremely fragile.44 The perception of an event<\/p>\n
typically does not leave a single, clear image; it is heavily
\ninfluenced by a variety of factors, including the manner in which
\nthe memory is sought to be retrie~ed.M~~an y studies describe the
\ndistorting effects of suggestive q~estioning.~W~h ereas witness
\npreparation certainly can assist a witness in remembering and
\nretrieving a truthful recollection, preparation also can distort a
\nwitness’s underlying memory and produce a false rec~llection.~~
\nAnd because of the complex nature of memory, it may be difficult
\nfor the witness himself to distinguish between a genuine
\nrecollection of a previously unrecalled fact, and an imagined
\nrecollection based on suggestions from the inter~iewer.~~
\nMany prosecutors do not appreciate the dangers associated
\nwith retrieving a memory of an event.49 A prosecutor, through the
\nuse of questions and suggestions has the ability to influence a
\nwitness to remember facts and fill gaps that may be inaccurate, but
\nwhich the witness may come to believe is the truth.50 In addition,
\nbecause of the prosecutor’s unique status as the attorney for the
\ngovernment, she ordinarily is viewed by the witness as a highly<\/p>\n
knowledgeable official who can be trusted to use the facts
\nre~ponsibly.~’ Indeed, because of the prosecutor’s power and
\nprestige, the witness may try to conform his recollection of the
\nevent to what the witness believes the prosecutor wants to hear.52
\nExperts and courts recognize that facts are slippery, and the
\nprocess of memory retrieval can be treachero~s.~”~ Justice
\nStevens noted in Nix v. White~ide;~ “facts” often are highly
\nambiguous and uncertain. To an appellate court after a case has
\nbeen tried and the evidence sifted by others,
\na particular fact may be as clear and certain as a piece of
\ncrystal or a small diamond. A trial lawyer, however, must
\noften deal with mixtures of clay and sand. Even a pebble
\nthat seems clear enough at first glance may take on a
\ndifferent hue in a handful of graveless
\nAnd to experts who have studied the psychology of human
\nmemory, a witness’s recollection of an event is a delicate amalgam
\nthat is retrieved, reconstructed, or imagined from this combination
\nof clay, sand, and gra~el.~”
\nThe potential for witness coaching by prosecutors and police
\nto alter memory is powerfully illustrated in the Supreme Court’s
\ndecision in Strickler v. Greene.57 In Strickler, a capital murder trial,
\na key prosecution witness, Anne Stolzfus, initially told police that
\nshe had only “muddled memories” about a kidnapping in a mall,
\nand could not identify the perpetrators, the victim, or the<\/p>\n
automobile.~A~t trial, however, Stolzfus gave astonishingly
\ndetailed testimony about the event.5y She gave a detailed
\ndescription of all three perpetrators? the victim:’ and even
\nremembered the license plate number of the van.62 Denying the
\nsuggestion that she had learned these details from news reports,
\nshe answered, “I have an exceptionally good memory.”63
\n‘The process by which Stolzfus’ memory improved so
\nremarkably, however, was revealed in a series of documents
\nprepared by a police detective, which were never disclosed to the<\/p>\n
defense.@ These documents were based on interviews between
\nDetective Claytor and Stolzfus in which her memory continued to
\nexpand over time because, she claimed, of “the associations that
\n[Detective Claytor] helped me make.”65 The Supreme Court
\naddressed whether the prosecutor violated his constitutional duty
\nby not disclosing these statements to the defense. The Court
\nfound no violation.66 The Court never discussed the other
\nimportant question, i.e., whether the prosecutor and police
\nencouraged Stolzfus to reconstruct her memory to accord with the
\ngovernment’s theory of
\n2. Language and Communication
\nProsecutors may attempt to fill gaps by asking questions,
\nmaking statements, or displaying evidence that highlights specific
\nfacts.” Indeed, several former prosecutors found it “disturbing”
\nand “dangerous” that so many prosecutors gave facts to
\ncooperating witnesses in the course of eliciting information from
\nthem.69 Moreover, the language used by a prosecutor in
\ncommunicating those facts to the witness may significantly
\ninfluence the witness’s responses. Experts have shown that using
\nspecific words in a question can distort a witness’s recollection or
\nrecounting of an event.70 For example, asking a witness whether<\/p>\n
he saw “a” car is much less suggestive than asking the witness
\nwhether he saw “the” car.7′ Similarly, asking the witness whether a
\nperson “smashed” another’s face may produce a decidedly
\ndifferent response than asking the witness whether a person “hit”
\nthe other person.72
\nProsecutors have the ability by their choice of language to
\ntelegraph to the witness specific facts that the prosecutor wants the
\nwitness to say. For example, when a witness initially is uncertain
\nof the identity of persons who were present at a critical meeting, a
\nprosecutor could properly try to refresh the witness’s recollection
\nby asking him whether a named person was present.73 However, if
\nthe witness continues to express doubt, a prosecutor who focuses
\nrepeatedly on whether that person was present is ultimately going
\nto convey to the witness the prosecutor’s expectations and the
\nwitness eventually will get the message and say it.74
\nMany prosecutors appear to be unaware of the extent to
\nwhich they express verbally or non-verbally a genuine interest in
\ncertain facts, or communicate disappointment when the witness
\ndoes not know particular facts, and thereby tip off the witness to
\nwhat they want him to say.75 Some prosecutors are not subtle
\nabout this type of communicative message. A prosecutor, for
\nexample, might signal to a cooperating witness, either explicitly or
\nimplicitly, that he is not helping himself by omitting certain details.
\nAccording to several former prosecutors, the witness “somehow
\nnow for the first time . . . finds information that helps the
\ngovernment .”76
\nPresuppositions or assumptions in questions also can create a
\nfalse recollection. For example, after being intensively questioned
\nby the prosecutor about whether the target of an investigation
\ndisplayed a gun, the witness might acknowledge that he
\nremembers a gun because the story has become implanted in his
\nmind as a fact, either because he heard about it from others rather
\nthan observing it firsthand, or because the prosecutor strongly<\/p>\n
suggested the fact.77 Asking a witness to retell an event over and
\nover may convince the witness that his story is true.78
\nThere are several communicative techniques that interviewers
\nuse to shape a witness’s testimony.79 Among the most common are
\nasking leading questions,80 showing a witness a document to
\nrefresh her recollection,R1 informing a witness of what another
\nwitness has said about the incident,x2 and giving the witness a
\nlecture on the consequences of saying one thing or another.83
\nC. Dangerous Witnesses
\nSome witnesses are especially vulnerable to coercive or
\nsuggestive interviewing techniques. The most susceptible of these
\nwitnesses are (1) children, because of their immaturity and
\nimpressionability; (2) identification witnesses, because of the
\ninherent unreliability of eyewitness testimony; and (3) cooperating
\nwitnesses, because of their enormous incentives to falsify or
\nembellish.
\n1. Children
\nSome witnesses are especially vulnerable to suggestive
\ninterviewing techniques. A familiar and frequently cited example
\nis the testimony of young children in sexual abuse cases. Many
\ninstances of wrongful convictions are attributable to the testimony
\nof child witnessesx4 Courts have increasingly scrutinized the
\nreliability of the testimony of young children for coercive or<\/p>\n
suggestive pretrial interviewing techniq~es.~F~o r example, in
\nIdaho v. the Supreme Court found that a child’s
\naccusation of sexual abuse was based on suggestive and leading
\nquestioning by an interrogator who had a preconceived idea of
\nwhat the child should be disclo~ing.~A~d ditionally, courts have
\nalso focused on the absence of spontaneous recall, the bias of the
\ninterviewer, the use of leading questions, multiple interviews,
\nincessant questioning, vilification of the defendant, ongoing
\ncontact with peers and references to their statements, and the use
\nof threats, bribes, and cajoling.88 Courts have also noted the failure
\nto videotape or otherwise document the initial interview ses~ion.~”
\n2. Identification Witnesses
\nIdentification witnesses are among the most unreliable
\nwitnesse~.~A s noted above,gl these witnesses may adapt their
\ntestimony to what they believe accords with the prosecutor’s<\/p>\n
expectations. Prosecutors may also attempt to “adjust” the
\ntestimony of these witnesses to strengthen the probative impact of
\ntheir identifi~ation.~T~h ese witnesses may add facts to their
\nmemory that appear to the witness to be an accurate reproduction
\nof what the witness originally perceived. This process of “memory
\nadjustment” is exemplified by the testimony of Ann Stolzfus in
\nStrickler v. G1-eene,9a~n d Isaac Smallwood in Kyles v. Whitle~.~~
\nThis adjustment often involves the testimony of identifying
\nwitnesses that the prosecutor knows is factually weak or
\nunreliable, but is presented to the jury with an aura of certainty
\nand confiden~e.~~
\nThe testimony of several eyewitnesses in the murder trial of
\nRandall Dale Adams, memorialized in the film documentary The
\nThin Blue Line,” offers a dramatic commentary on the dangers of
\ntestimony of identification witnesses. Three rebuttal witnesses-
\nEmily Miller, her husband R.L. Miller, and Michael Randalloffered
\ncritical testimony identifying Adams as the killer.97 The<\/p>\n
testimony was given confidently, with some bravado. However, as depicted in the film, these witnesses appeared to have given
\ncontrived testimony that probably was the product of coaching by
\nthe prose~utor.In~d~e ed, these witnesses’ subsequent narrations of
\ntheir accounts of the incident for the camera-a starkly revealing
\nportrait that captures their venality and deception-is a
\ndevastating commentary of the artificiality of courtroom testimony
\nand how a prosecutor’s apparent coaching produced a terrible
\nmiscarriage of justice.
\n3. Cooperating Witnesses
\nThe cooperating witness is probably the most dangerous
\nprosecution witness of all. No other witness has such an
\nextraordinary incentive to lie. Furthermore, no other witness has
\nthe capacity to manipulate, mislead, and deceive his investigative
\nand prosecutorial handlers. For the prosecutor, the cooperating
\nwitness provides the most damaging evidence against a defendant,
\nis capable of lying convincingly, and typically is believed by the
\njury.<\/p>\n
The prosecutor’s pretrial coaching of cooperating witnesses is
\nvulnerable to many of the potential abuses noted above. The
\ncooperating witness is (1) easily manipulated by coercive and
\nsuggestive interviewing techniques; (2) readily capable of giving
\nfalse and embellished testimony with the prosecutor’s knowledge,
\nacquiescence, indifference, or ignorance; (3) readily capable of
\ncreating false impressions by omissions or memory alterations that
\nin the absence of any recordation or documentation eludes
\ndisclosure and impeachment; and (4) able to present his testimony
\nto the jury in a truthful and convincing manner, which because of
\nthe nature of the cooperation process is difficult to impeach
\nthrough cross-examination.I0O
\nA prosecutor has a powerful incentive to accept a
\ncooperator’s account uncritically.lOl Many prosecutors, if they are
\ncandid, will admit that in some cases they really do not know
\nwhether the cooperator is being truthful or dishonest. This is
\nparticularly the case when a prosecutor lacks evidence to
\ncorroborate the cooperator’s account. Moreover, some
\nprosecutors have a predetermined view of the facts of a case that
\nconstrains their ability or willingness to assess the cooperator’s
\ncredibility objectively. They may have a theory of the case that
\nthey developed from other evidence or from reliance on the
\nopinion of the case agent. These prosecutors believe that theory
\nto be true, and to the extent that the cooperator’s version is
\ninconsistent with this theory, the prosecutor may conclude that the
\ncooperator is lying or withholding information.
\nCooperators are manipulative, and some prosecutors can be
\neasily manipulated. Some prosecutors trust their cooperators too<\/p>\n
much–one former prosecutor described the relationship as
\n“falling in love with your ratv-and this mindset skews the
\nprosecutor’s ability to evaluate the cooperator’s credibility
\nobjectively. These prosecutors may neglect to probe the
\ncooperator’s story or background intensively to uncover
\ninconsistencies or outright lies. A recent illustration is United
\nStates v. W~llachi,n~ w~h~ic h a key cooperating witness, Anthony
\nGuariglia, gave perjured testimony about his gambling habits that
\nthe prosecutors could easily have checked but did not.Io3
\nMoreover, some prosecutors have a cramped view of their
\nethical duty as ministers of justice. They believe that serving
\njustice means getting convictions and putting bad people in jail.lW
\nThis mindset may be particularly noticeable with younger
\nprosecutors, whose experience is confined to administering the
\nfederal sentencing guidelines. These prosecutors have been
\ndescribed as “Guidelines babies.”lo5 They often exhibit a
\n“mechanistic” and “hardened” view of justice.Io6 They perceive
\nthemselves as cops, and exude a “macho” persona wherein “[tlhey
\ndon’t ask what’s the right thing to do. They just want the right
\nresult.”107
\nCooperators appreciate that their value depends on giving the
\nprosecutor “what they want to hear.”los This message is “drummed
\ninto defendants at the MCC (Metropolitan Correction Center)
\nthat you have got to have good information for the go~ernment.”‘~~
\nMany professional participants in federal criminal practice believe
\nthat the Federal Sentencing Guidelines, particularly by their ability
\nto confer unprecedented and enormous rewards on cooperators
\nwho provide law enforcement with “substantial assistance,” create<\/p>\n
a powerful incentive for cooperators to exaggerate and falsify
\ninformation.’I0
\nMoreover, some cooperators may not even appreciate the
\ndifference between truth and untruth. Cooperators frequently
\ncome from alien environments of crime and deceit that produce a
\nmindset, according to some prosecutors, that “[tlruth equals what I
\nknow or what I can be caught at.””‘ Cooperators do not share the
\nprosecutor’s “obsession with exact facts.”112T hey use language in
\na loose, non-literal fashion that allows them to make false or
\nexaggerated assertions that they might believe to be true. They
\nmight assume, for example, that if they have knowledge of certain
\ninformation, it is immaterial how they came to learn it, whether
\nthrough personal observation or based on what they may have
\nheard.ll”<\/p>\n
Detecting coachmg is difficult for two reasons. First, there
\ntypically is no verbatim record or other significant documentation
\nof the interview session. What occurs in this private encounter is
\nknown only to the prosecutor and witness. Second, crossexamination
\nhas a very limited capacity to expose improprieties in
\nthe preparation process. Preventing coaching typically rests on the
\nintegrity and sense of fairness of the individual prosecutor.
\nPreparation of witnesses, when done properly, is an essential
\nmeans of readying the prosecutor and witness for adversarial
\ntesting. By working closely with the witness, the prosecutor is able
\n(1) to ascertain the truth fully, fairly, and objectively, (2) present
\nthe truth, as she honestly ‘understands it, in an accurate, fair, and
\neffective manner, and (3) protect the truth from being discredited
\nand distorted by adversarial attack. These truth-serving goals,
\nwhile applicable to all lawyers, would seem to be most clearly
\napplicable to prosecutors who are unique among lawyers in their
\nethical obligation to seek justice rather than merely gain a partisan
\nadvantage.Il4
\nHowever, for those prosecutors who do not view their role as
\nministers of justice, prophylactic procedures may be necessary to
\nprotect the fact-finding process from improper influences. These
\nprocedures might include: (1) a pretrial taint hearing to expose
\nwitness contamination; (2) expert testimony on memory and
\nsuggestive interviewing techniques; and (3) recording interview
\nsessions for in camera judicial inspection.
\nA. Documentation
\nWitness preparation is done in private. Since there are no
\naudio or video recordings of the interview process, there is
\nvirtually no way of learning precisely what transpired during the
\npreparation session. Neither the. witness, the police, nor the
\nprosecutor will readily acknowledge improper coaching. Nor is it
\nthe practice of prosecutors or police to prepare extensive written<\/p>\n
or recorded evidence of the interview that might shed light on
\nwhether the witness was coached.I1To be sure, documentation of
\nthe preparation process, if available, might reveal overt attempts
\nto shape the witness’s testimony. However, documentation would
\nnot expose subtle cues that might produce false or misleading
\ntestimony that are attributable to a witness’s own “suggestibility,”
\n“confabulation,” and “memory hardening.”Il6
\nA prosecutor is legally required to disclose to the defense, for
\nimpeachment purposes, pretrial statements that a government
\nwitness made to the prosecutor, police, or other government
\nagent.”‘ However, the prosecutor is able to limit the availability of
\nsuch statements by a variety of tactics. First, neither the police nor
\nthe prosecutor has any legal obligation to take notes.118 Some
\nagents as a matter of policy do not take notes specifically to avoid
\ncreating contradicting evidence.lIy Some prosecutors do not<\/p>\n
encourage note-taking, and occasionally even forbid government
\nagents from taking notes.Iz0 According to one former prosecutor,
\n“[t]hereYsa certain unconscious arrogation of power about it
\nAnother former prosecutor stated: “[Tlhe office lore is don’t take
\ntoo many notes or figure out how to take notes so that they are
\nmeaningful to you and no one else. You don’t want a complete set
\nof materials that you have to disclose.”lZ2 Prosecutors and their
\nagents typically do not prepare extensive notes, and when they do
\ntake notes, they try to do it in a safe way that avoids discl~sure.’~~
\nThus, notes of significant comments, contradictions, and
\ninconsistencies by a government witness are exempt from
\ndisclosure unless the notes are “a substantially verbatim recital of
\nan oral statement made by said witness to an agent of the
\ngovernment and recorded contemporaneously with their making
\nof such oral statement.”124 These notes may be withheld from the
\ndefense even if they contain significant impeachment evidence
\nwhen it is shown that the notes are selections, summaries, or
\ninterpretations by the government agent.125
\nAlso, it is not uncommon for a government witness to be
\ninterviewed by a prosecutor after the witness has been intensively
\ndebriefed by the police. If the police do not take notes, or if they
\ndo not disclose their notes to the prosecutor, the prosecutor may
\nnever know what the witness initially told the police, whether the
\nwitness’s initial account changed, or the extent to which the story
\nwas shaped or polished by police during the initial interview
\nsession. If the police employed the kinds of suggestive or coercive
\ntechniques described above, and absent any available record to
\ndocument such conduct, it is unlikely that a prosecutor’s<\/p>\n
subsequent probing could effectively recreate the circumstances to
\ndemonstrate any improper influence on the witness’s subsequent
\ntestimony. Moreover, as noted above, the witness herself may be
\nunaware of the subtle techniques that may have influenced her
\ntestimony.Iz6
\nB. Cross- Examination
\nCross-examination is assumed to be the most important
\nadversarial safeguard to discovering the truth.lz7 However, there is
\nno empirical basis for this assumption.128 In Ceders v. United
\nStates,Iz9 the Supreme Court observed that skillful crossexamination
\nis a vital safeguard to uncovering improper
\npreparation and coaching of witnesses. The Court assumed that
\nthe line between ethical pretrial preparation and unethical
\ncoaching is easily defined,I3O and that interrogation of the witness
\nby opposing counsel could disclose improper influences. However,
\ngiven the subtle ways that a witness’s testimony can be
\nmanipulated, it is highly unlikely that cross-examination will
\ndisclose ~0aching.l~~
\nFirst, one of the cardinal precepts of cross-examination is to
\navoid asking questions of which the examiner does not know the
\nanswer.’32 Thus, lacking a factual basis to believe that a witness’s
\nmemory has been manipulated, that an “I don’t remember” is false
\nor misleading, or that a failure to mention an incriminating fact is
\nthe product of improper coaching, it is unlikely that a crossexaminer
\nwould focus on the discrepancy, or be able to prepare an
\neffective impeaching strategy about something of which he is<\/p>\n
ignorant.133 Moreover, even if a witness’s testimony has been
\nimproperly influenced during the coaching session, the opposing
\ncounsel would have no basis to believe that the witness’s clear and
\nconvincing testimony is the product of an altered memory.
\nIndeed, as noted above, it may often be the case that the witness
\nherself is unaware of any improper infl~ence.’~~
\nAdditionally, although it is commonly recognized that the
\ntestimony of a cooperating witness is inherently suspect, and that
\nthe process of preparing and coaching the cooperating witness can
\nimpair the integrity of the truth-finding process, cross-examination
\nis made even more difficult when the cooperating witness has been
\ncarefully coached to testify that any benefit is speculative,
\nuncertain, and contingent upon his giving truthful testimony in
\naccordance with his cooperation agreement.’35
\nC. Protocol for Witness Preparation
\nThere is nothing wrong with a prosecutor assisting a witness
\nto give testimony truthfully and effectively. However, under their
\nobligation to serve justice, prosecutors should be able to regulate
\ntheir own conduct to insure that witnesses are not exposed to
\nsuggestive questioning that may create false or misleading
\ntestimony. Prosecutors should be trained and supervised in
\ninterviewing protocols, the vulnerabilities of certain witnesses, and
\nthe psychological literature relating to memory, language, and
\ncomm~nication.’~~
\nThe following is a protocol for witness preparation by
\nprosecutors. It is based largely on this writer’s experience as a
\nprosecutor. It differs in several important respects from advice
\ncontained in practitioner-oriented publications typically addressed<\/p>\n
to civil litigation attorneys.i37 In preparing a witness for testifying
\nat trial, a prosecutor should:
\n1. Demand Truth
\nAdvise the witness to tell only the truth as he knows it, not
\nwhat he thinks he knows, or what someone else knows.’38 Advise
\nthe witness not to embellish facts, or fill in gaps of memory, and
\nthat if he does not remember something, to say
\n2. Be Objective
\nEvaluate the witness’s story objectively to determine its
\naccuracy and believability. Ask open-ended questions initially,
\nand use more specific questions after the witness has given a
\ncomplete account of the event.I4O Never put words in the witness’s
\nmouth or suggest answers.I4′ Know as much as possible about the
\nwitness’s background and any interest the witness might have to
\nfalsify, and probe these areas carefully without suggesting any
\ndesired response.<\/p>\n
Explain courtroom procedures, where the witness will sit, and
\nthe order of q~esti0ning.lD~o~ not advise an identification witness
\nwhere the defendant will be sitting.'” Advise the witness to speak
\nin a loud, clear voice so the jurors can hear what is being said, and
\nto make eye contact with the jury when appr~priate.’A~d~v ise the
\nwitness to sit straight, avoid distracting body language, and dress
\nappr0priate1y.l~~
\n4. Rehearse Direct Examination
\nWrite out direct examination questions ahead of time and
\nrehearse specific questions with the witness.'” The witness should
\nbe encouraged to use his own words whenever possible, and not to
\nuse slang or offensive expressions.14′ Control the witness’s answers
\nto the extent of preventing the witness from giving long, rambling
\nnarratives, and ensure that the witness does not violate rules of<\/p>\n
evidence. If tangible evidence is being introduced, show the
\nevidence to the witness and go through the process of laying the
\nfoundation. Have the witness do whatever demonstration he will
\nbe asked to do in the courtroom.
\n5. Reconcile Inconsistencies
\nCautiously try to reconcile the witness’s testimony with other
\nevidence. This may include prodding the witness’s recollection
\nwith prior statements that the witness made, or referring to other
\nfacts in the case, including the testimony of other witnesses.14s
\nNever suggest what a witness should say, or telegraph what the
\nwitness should say, by revealing inconsistencies or weaknesses in
\nthe witness’s te~tim0ny.I~R~ev iew the witness’s prior testimony
\nwith the witness, but do not allow the witness to read any prior
\ntestimony unless absolutely necessary.150
\n6. Prepare Cross-Examination
\nPrepare for cross-examination by going through all
\ndiscrepancies in the witness’s prior testimony or other
\nstatements.I5l Try to ensure that the witness can correct or explain<\/p>\n
each discrepancy. Go through a witness’s criminal background
\nand any interest the witness may have in testifying. Make sure that
\nthe witness acknowledges prior convictions and bad acts. A
\nwitness should be encouraged not to volunteer information, to
\nlimit answers as much as possible to “yes” or “no,” not to guess or
\nembellish an answer, to make an effort to remember, and not to be
\nafraid to acknowledge a mistake.152T he witness should be told not
\nto look at the prosecutor during cross-examination, not to answer
\na question when the prosecutor stands up to object, and to answer
\nin a positive tone if he is asked whether he spoke to the police or
\nprosecutor about the case. A prosecutor should do a mock crossexamination
\nwith the witness to anticipate what defense counsel
\nwill likely ask.153
\nD. Remedies
\n1. Pretrial Taint Hearing
\nA pretrial “taint” hearing should be required when there is
\nsome basis to believe that a witness’s testimony has been
\nimproperly influenced by suggestive or coercive interviewing
\ntechniques. Such a hearing is not unusual. It has been authorized
\nin many instances in whlch police or prosecutorial conduct has
\nplaced the integrity of the fact-finding process into question and
\nthere is a need for the procedural protection of a pretrial hearing
\nto exclude from a potential prosecution the prejudicial effects of
\ntainted evidence. Thus, pretrial hearings have been employed to
\ndetermine the admissibility of in-court identification testimony
\nbecause of pretrial suggestivene~s,s~ta~t~em ents of children in
\nsexual abuse cases,Is5 hypnotically-recalled in-court testimony,lS6<\/p>\n
breathalyzer evidence because of prior falsified police breathalyzer
\nreports,ls7 and evidence following police investigatory
\nmisconduct .Isx
\nA pretrial taint hearing into the reliability of a witness’s
\ntestimony based on pretrial suggestiveness should consider all
\nrelevant circumstances, including any inconsistency between a
\nwitness’s statements, the interest or motivation of a witness to
\nfalsify, the presence or absence of corroboration, the nature of the
\ncorroboration, the inherent believability of the statements, the
\nexistence of any documentation of the debriefing and preparation
\nsessions, the rewards and other inducements to testify, the scope of
\npunishment to which a cooperating witness may be exposed in the
\nabsence of cooperation, the manner and form of the questioning,
\nthe number of interview sessions, and the person or persons
\npresent when the statements were made.
\nDefense counsel, in order to obtain a pretrial hearing, would
\nhave the burden initially of making some factual showing that a
\nwitness has been subjected to improper conduct by the prosecution
\nthat has caused the witness to adjust his testimony. In making its
\ndetermination, a court should consider whether, under all the
\ncircumstances, the interview and preparation sessions give rise to a
\nsubstantial likelihood of false, inaccurate, or misleading testimony.
\n2. Expert Testimony
\nGiven the capacity of the witness-preparation process to
\nproduce false or distorted testimony, courts should allow experts
\nin cognitive psychology to testify how memory, language, and
\ncommunication can produce false, inaccurate, or misleading
\ntestimony.Is’ Rule 702 of the Federal Rules of Evidence authorizes<\/p>\n
the use of scientific testimony by an expert to assist the jury in
\nunderstanding the extent to which suggestive influences in the
\ndebriefing and coaching of witnesses may produce false or
\ninaccurate testimony.160 AS now occurs with eyewitness
\nte~tirnony,’t~h~e expert could identify the factors that influence
\nperception and memory, the extent to which witnesses are
\nsusceptible to suggestive influences, and how pretrial interviewing
\ntechniques are likely to produce false, inaccurate, or embellished
\nte~tirn0ny.lC~~on trary to the belief of many jurors, an expert could
\ntestify that there is no necessary correlation between a witness’s
\nconfidence and the accuracy of her te~tim0ny.l~E~xp erts could
\nalso counter a belief held by some jurors that witnesses have a
\nbetter memory for dramatic events.16″
\n3. Recording
\nTo enable the defendant to challenge the veracity of the
\nwitness effectively, and a jury to assess his credibility, all
\ninterviews with potential trial witnesses should be electronically
\nrecorded either by audio or videotaping. Videotaping would be
\npreferable to sound recording as it would depict the physical
\ninteraction and body language of the participants. The use of such
\na procedural safeguard is unusual, but hardly novel. Videotaping
\nof interview sessions with child witnesses is not
\nMoreover, videotaping has been used when it is important to
\ndocument whether the government used unfair tactics to produce
\nevidence, such as a defendant’s confession,16o6r for interrogations
\nconducted before and after hypnosis.I6′<\/p>\n
Recording the interview session is essential to disclose the
\npresence or extent of the different types of suggestive influences
\ndiscussed above. Taping would reveal overt attempts to influence
\nthe witness’s testimony by use of leading questions or other cues
\nthat alert the witness to the expected answer. Whereas recording
\nof the sessions would not necessarily reveal whether a witness’s
\nstory was a fabrication from the start, it might demonstrate
\nwhether the witness embellished his story to please the
\ngovernment or filled in details to make the story more complete or
\npersuasive, and the extent to which his story crystallized and
\nbecame more confident over several interview sessions.
\nIt may be that courts should have the authority to conduct an
\nin camera inspection of the recording, and preclude the use of any
\nportions that contain embarrassing or sensitive material. To be
\nsure, a prosecutor could properly seek to preclude from disclosure
\nstatements by a cooperating witness that might compromise an
\nongoing investigation. A court also could limit the use of the
\nrecorded interview session to those portions that reveal that a
\nwitness is trying to please the interviewer, confabulating the story
\nby appearing to fill in details to make the story more coherent and
\ncomplete, or demonstrating memory “hardening” by appearing to
\nsuddenly and confidently remember new details.
\nThe preparation of witnesses for testimony at trial is a
\nnecessary and acceptable part of the prosecutor’s function.
\nHowever, some prosecutors engage in conduct that goes beyond
\npermissible trial preparation. These prosecutors either overtly,
\ncovertly or even inadvertently, cause witnesses to give testimony
\nthat is false, inaccurate, or misleading. And given that witnesscoaching
\nis done in private, there is usually no evidence of
\nimproper conduct. Therefore, the ability of cross-examination to
\nreveal such improper conduct is extremely limited.
\nCoaching typically is accomplished through memory
\nreconstruction, suggestions that improve testimony, and cues that
\nalter testimonial language. Some witnesses such as children,
\nidentification witnesses, and cooperating witnesses are highly
\nsusceptible to coaching. These witnesses are capable of adjusting
\ntheir testimony based on leading, suggestive, coercive or
\nintimidating questions or statements. Furthermore, the prestige<\/p>\n
and power of the prosecutor enhances her ability to influence the
\nwitness’s testimony improperly.
\nGiven the potential of witness coaching to skew the factfinding
\nprocess, this Article offers several suggestions to expose
\nimproper influences and prevent false or inaccurate testimony.
\nThese include a pretrial taint hearing when there is some basis to
\nbelieve that a witness has been improperly influenced, expert
\ntestimony to assist the jury in understanding the vulnerability of
\nmemory and the dangers to accurate testimony from certain types
\nof interviewing techniques, and electronically recording witnesspreparation
\nsessions. Any or all of these recommendations, if
\nadopted, would protect the fact-finding from overzealous conduct.<\/p>\n","protected":false},"excerpt":{"rendered":"
Witness Coaching by Prosecutors\u00a0 \u00a0> See full article in > Pace Law Faculty Publications. ((The below is copied from a news article and some errors were created by the software.)) Bennett L. Gershman* Witness coaching has been described as the … Continue reading