Ethical Witness Preparation
In preparing a witness to testify, a lawyer is permitted to invite
the witness to provide truthful testimony that is favorable to the
lawyer's client, as long as the lawyer does not encourage the witness
to deviate from the truth. Both the witness and the lawyer share
a responsibility for ensuring the truth of the witness's testimony.
This means that the witness should never testify to something he
or she does not believe to be true. Additionally, as a lawyer, you
should never permit the witness to testify to what you, as the lawyer,
believe to be false.
The Restatement of the Law Governing Lawyers provides that as
long as it does not elicit false or misleading testimony, preparation
consistent with a lawyer's duties to a client and to the court may
include:
- Discussing the role of the witness and effective courtroom
demeanor
- Discussing the witness's recollection and probable testimony
- Revealing to the witness other testimony or evidence that will
be presented and asking the witness to reconsider the witness's
recollection of events in that light
- Discussing the applicability of law to the events at issue
- Reviewing the factual context into which the witness's observations
or opinions will fit
- Reviewing documents or other physical evidence that may be
introduced
- Discussing probable lines of hostile cross examination that
the witness should be prepared to meet
- Rehearsing the witness's testimony and suggesting choice of
words
Find out more Preparing
Witnesses: A Practical Guide for Lawyers and Their Clients, Second
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