Witness Training – Ethical Preparation or Unethical Coaching?

Introduction

My over-arching answer to the question posed by the title of this article is the occasional unsatisfactory barrister’s response:  “That depends!” 

Formal pre-trial witness familiarisation training has long been de rigueur in the United States, and has made some inroads into the United Kingdom in the last two decades.  Such services are now available in  Australia.

In the US – where jury trials are the norm – retained attorneys or external providers set up mock court rooms, with witnesses being cross-examined by attorneys before a faux judge, and on the very evidence they are going to give at trial.  On any view – under Australian and UK ethical principles – this is impermissible “coaching”.

In contrast, what of an approach – afforded in-house or externally – whereby a witness is the subject of general familiarisation training as to court processes, including how questions commonly are asked, and little more?  So much, in general terms, it is submitted, is permissible, and probably little different from the way in which witnesses are prepared for trial conventionally in the Australian legal system.

The question is where the line is to be drawn between these two positions.  So much is addressed in this article.

In sum, in my view, barristers ought be cautious when advising on, or in condoning the drawing of that metaphorical line.  So much obtains in criminal and civil (including family) law spheres.

“There is an important difference between exploration and rehearsal.”

The Queensland Ethical Rules

The Barristers Rule 2011 (Qld), relevantly, provides:

Integrity of Evidence

68. A barrister must not:

a. advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or

b. coach a witness by advising what answers the witness should give to questions which might be asked.

69. A barrister will not have breached Rule 68 by expressing a general admonition to tell the truth, or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not encourage the witness to give evidence different from the evidence which the witness believes to be true.

70. A barrister must not confer with, or condone another legal practitioner conferring with, more than one lay witness including a party or client at the same time:

a. about any issue which there are reasonable grounds for the barrister to believe may be contentious at a hearing, and

b. where such conferral could affect evidence to be given by any of those witnesses,

unless the barrister believes on reasonable grounds that special circumstances require such a conference.

71. A barrister will not have breached Rule 70 by conferring with, or condoning another legal practitioner conferring with, more than one client about undertakings to a court, admissions or concessions of fact, amendments of pleadings or compromise.

72. A barrister must not confer with any witness including a party or client called by the barrister on any matter related to the proceedings while that witness remains under cross-examination, unless:

a. the cross-examiner has consented beforehand to the barrister doing so; or

b. the barrister –

i. believes on reasonable grounds that special circumstances (including the need for instructions on a proposed compromise) require such a conference;

ii. has, if possible, informed the cross-examiner beforehand of the barrister’s intention to do so; and  

iii. otherwise does inform the cross-examiner as soon as possible of the barrister having done so.

73. A barrister must not take any step to prevent or discourage prospective witnesses from conferring with an opponent or being interviewed by or on behalf of any other person involved in the proceedings.

74. A barrister will not have breached Rule 73 simply by telling a prospective witness or a witness that he or she need not agree to confer or to be interviewed or by advising about relevant obligations of confidentiality.

(emphasis added)

In my view, a proven allegation of any breach of Rules 68 and 69, in most instances, would result in a finding of professional misconduct (cf unprofessional conduct) against the offending barrister.  Moreover, if still in practice, such barrister would lose any trust of a court before whom they appear.

Character of Services Available

In an article appearing in “Proctor” – the online magazine of the Queensland Law Society – published 10 March 2021, the following helpful description of the services available was afforded by an external provider of witness familiarisation training:

Witness familiarisation is part of the process of preparing a witness who is to provide testimony in court, or in other legal and quasi-legal settings, usually under cross examination.

Witness familiarisation is an educational process which helps a witness provide their evidence most effectively. It does this by providing theoretical and practical training in the provision of evidence. It seeks to help a witness overcome the nerves, stress and pressure of cross examination, and to deal with the nuances and hurdles frequently faced by those providing evidence.

The witness familiarisation process has a particular emphasis on practical methods of witness preparation through rigorous mock cross examination sessions. These are conducted by independent practising barristers based on a hypothetical sets of facts, completely independent of the actual facts and issues in any underlying proceedings. This gives witnesses the opportunity to practise and apply the fundamental skills learnt in a simulated, but realistic, environment.

…

Witness familiarisation is available for both expert and factual witnesses, and courses are designed for such witnesses to properly account for the differences in the type of evidence to be given. Typically, a course is for one day, structured as follows:

1. Morning session – Foundations
   – Introduction to the court/trial process
   – Role of a witness
   – The giving of evidence
   – Cross examination techniques
   – Strategies to deliver evidence effectively
2. Afternoon session – Practical
   – Mock cross examination session
   – Videoed for witness, reviewed and analysed
   – Repeat.

Courses are usually undertaken at the instructing firm’s offices. Sessions are generally conducted individually for witnesses in order to ensure ethical obligations prohibiting witness collusion are strictly observed. In some limited circumstances, group sessions can be arranged, such as for sessions to professional bodies, where no attendees are witnesses in the same proceeding.

“Whilst it may be permissible to provide very general reassurance (ie ‘you may be asked about ‘x’ incident and why you think ‘y’ should happen’) counsel should not set out in detail the issues likely to arise in cross-examination.”

Unethical witness coaching is wholly separate and distinct from witness familiarisation training.

Witness coaching is influencing a witness’s evidence – telling a witness what to say, or how to answer a question put. In other words, it is “the orchestration of the evidence given” as the court said in R v Salisbury [2005] EWCA Crim 3107.

Conversely, witness familiarisation training is conducted wholly independently of the evidence to be given and thus falls safely within the ethical boundaries demanded of practitioners. This is achieved through several crucial mechanisms:

All courses are taught by independent local barristers, who are fully aware of, and subject to, the relevant regulatory and ethical obligations.

All course materials are hypothetical, prepared completely independently of the underlying legal proceedings.

All training sessions are conducted strictly without reference to the underlying proceedings. Training organisations and the instructors do not, and cannot, know details of these proceedings.

(emphasis added)

The cost of such services is unknown to me.

UK – R v Momodou:

In R v Momodou [2005] 2 All ER 571; [2005] WLR 3442, the Court of Appeal in England and Wales considered a case in which a training provider had created practice case studies for the witnesses – in a forthcoming criminal trial – to be cross-examined on a case that – importantly – although hypothetical, had similarities with the facts of the actual case.  The witnesses were trained together and not separately.

The Court of Appeal held that this type of training crossed the boundary from mere familiarisation into coaching.  Judge LJ – later Judge CJ, and now Lord Judge – wrote for the court (at [61]-[65]):

[61] There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of the well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness: see R v Richardson [1971] 2 QB 484, R v Arif The Times, 22 June 1993, R v Skinner (1993) 99 Cr App R 212 and R v Shaw [2002] EWCA Crim 3004. 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. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be “improved”. These dangers are present in one-to-one witness training. Where however the witness is jointly trained with other 3454 witnesses to the same events, the dangers dramatically increase. Recollections change. Memories are contaminated. Witnesses may bring their respective accounts into what they believe to be better alignment with others. They may be encouraged to do so, consciously or unconsciously. They may collude deliberately. They may be inadvertently contaminated. Whether deliberately or inadvertently, the evidence may no longer be their own. Although none of this is inevitable, the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited.

[62] This principle does not preclude pre-trial arrangements to familiarise witnesses 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. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness’s own uncontaminated evidence. Equally, the principle does not prohibit training of expert and similar witnesses in, for example, the technique of giving comprehensive evidence of a specialist kind to a jury, both during evidence-in-chief and in cross-examination, and, another example, developing the ability to resist the inevitable pressure of going further in evidence than matters covered by the witnesses’ specific expertise. The critical feature of training of this kind is that it should not be arranged in the context of nor related to any forthcoming trial, and it can therefore have no impact whatever on it.

[63] In the context of an anticipated criminal trial, if arrangements are made for witness familiarisation by outside agencies, not, for example, that routinely performed by or through the Witness Service, the following broad guidance should be followed. In relation to prosecution witnesses, the Crown Prosecution Service should be informed in advance of any proposal for familiarisation. If appropriate after obtaining police input, the Crown Prosecution Service should be invited to comment in advance on the proposals. If relevant information comes to the police, the police should inform the Crown Prosecution Service. The proposals for the intended familiarisation programme should be reduced into writing, rather than left to informal conversations. If, having examined them, the Crown Prosecution Service suggests that the programme may be breaching the permitted limits, it should be amended. If the defence engages in the process, it would in our judgment be extremely wise for counsel’s advice to be sought, again in advance, and again with written information about the nature and extent of the training. In any event, it is in our judgment a matter of professional duty on counsel and solicitors to ensure that the trial judge is informed of any familiarisation process organised by the defence using outside agencies, and it will follow that the Crown Prosecution Service will be made aware of what has happened.

[64] This familiarisation process should normally be supervised or conducted by a solicitor or barrister, or someone who is responsible to a solicitor or barrister with experience of the criminal justice process, and preferably by an organisation accredited for the purpose by the Bar Council and Law Society. None of those involved should have any personal knowledge of the matters in issue. Records should be maintained of all those present and the identity of those responsible for the familiarisation process, whenever it takes place. The programme should be retained, together with all the written material (or appropriate copies) used during the familiarisation sessions. None of the material should bear any similarity whatever to the issues in the criminal proceedings to be attended by the witnesses, and nothing in it should play on or trigger the witness’s recollection of events. As already indicated, the document quoted in para 41, if used, would have been utterly flawed. If discussion of the instant criminal proceedings begins, as it almost inevitably will, it must be stopped. And advice given about precisely why it is impermissible, with a warning against the danger of evidence contamination and the risk that the course of justice may be perverted. Note should be made if and when any such warning is given.

[65] All documents used in the process should be retained, and if relevant to prosecution witnesses, handed to the Crown Prosecution Service as a matter of course, and in relation to defence witnesses, produced to the court. None should be destroyed. It should be a matter of professional obligation for barristers and solicitors involved in these processes, or indeed the trial itself, to see that this guidance is followed.

(emphasis added)

“Questioning of a witness moves beyond “proofing” to impermissible “coaching” when the witness’ true recollection of events is supplanted by another version …”

UK Bar Commentary

In an article in “Counsel” – the online magazine of the Bar Council of England and Wales – published in November 2017, and written by Nicholas Goodwin KC, the following was said about amended guidelines then recently adopted:

Revised guidance

In August 2017 the Bar Council Ethics Committee published a revised guidance document on witness preparation. In practice, unheralded issues relating to witnesses are, we have found, more likely to arise in criminal or family cases. However, the document is divided into three sections – civil, crime and family – to make it more readily accessible by all practitioners facing ethical dilemmas at court.

This new guidance confronts head on the ethical line drawn between, on one hand, the need to provide support to one’s client before giving evidence and, on the other, the need to ensure that their evidence remains, uninfluenced, their own. All counsel will seek to put their client at ease in advance of a case, particularly at the door of the court. Some witnesses will be vulnerable, have a learning difficulty, be victims of a crime or will be participating in proceedings in a foreign court in a foreign language. Some will be just plain nervous. There are, of course, no difficulties with seeking to reassure and inform such witnesses about their likely experience in court.

Staying the right side of the line

Conduct that falls the right side of the line is, principally, emotional support and encouragement designed to help the witness give their best evidence. The ethics become more complex when the witness seeks guidance in advance about cross-examination. The main rule governing counsel’s conduct is Rule C9.4 in the BSB Handbook: ‘you must not rehearse, practise with or coach a witness in respect of their evidence’. This is a subset of Core Duty 3 – the duty to act with honesty and integrity. Whilst it may be permissible to provide very general reassurance (ie ‘you may be asked about ‘x’ incident and why you think ‘y’ should happen’) counsel should not set out in detail the issues likely to arise in cross-examination. The guidance is not, of course, intended to operate as a restriction on counsel exploring in conference with a client all aspects of the case in detail, including his/her response to assertions made by other parties that may well be put in cross-examination. There is an important difference between exploration and rehearsal.

There are other rules referred to in the document which, in combination, set out the framework under which these ethical decisions should be made. For example, under Rule C9.3 counsel is prohibited from encouraging a witness to give evidence which is misleading or untruthful. Under Rule C9.2(d) counsel cannot draft any statement or affidavit containing a statement of fact other than the evidence which one reasonably believes the witness would give in oral evidence.

Momodou: coaching v familiarisation

The guidance considers again the criminal case of Momodou [2005] EWCA Crim 177, in which the Court of Appeal emphasised that witness coaching is impermissible. Witness familiarisation is, however, a slightly different beast – encompassing showing a witness the layout of the court, telling them about the likely sequence of events and giving a balanced appraisal of the participants’ different responsibilities. Although there is no specific authority on these matters in civil or family proceedings, it would be wise to apply the guidance in Momodou to all litigation and to all witnesses, whether lay or expert. There are also separate sections on expert evidence in each field of law.

In Momodou, the Court of Appeal also dealt directly with witness familiarisation and expert training programmes offered by outside agencies. Where such a programme has been organised by one side or another in the litigation, the trial judge will need to be informed and all legal representatives will be under a professional duty to ensure the Court of Appeal guidance is followed. Any ‘mock’ cross-examinations should not be based on the facts of a pending or current trial where any participant is likely to be a witness. Whilst in the field of family law I have encountered counsel being asked to provide generic training to social workers who have never given evidence before, I have not seen, in the last 22 years, any training programme specific to a case. As such, Momodou will be fairly unfamiliar territory for many family practitioners and may remain so.

Civil focus: witness statements

One focus of the civil section of the document is the proper approach to the settling of witness statements with which counsel is often instructed to assist. The courts have repeatedly emphasised that statements must, as far as possible, be in the witness’ own words – see Aquarius Financial Enterprises Inc v Certain Underwriters at Lloyds [2001] 2 Lloyd’s Rep 542 – and, in turn, the Chancery, Commercial and Admiralty and Technology and Construction Court Guides.

The Chancery Guide 2016, para 19.6 notes that ‘a professional adviser may be under an obligation to check, where practicable, the truth of facts stated in a witness statement if you are put on enquiry as to their truth’. What should counsel do if another witness’ evidence contradicts that of the witness whose statement one is drafting? First, ‘it is not for you to decide whether your client’s case is to be believed’ (see gC6 in the BSB Handbook). Second, gC7 provides that you may draw to a witness’ attention other conflicting evidence and may point out that the court might find a particular piece of evidence difficult to accept. If the witness confirms his/her own evidence is true then you will not be misleading the court if you include it. Indeed, you might well fall the wrong side of the line if you do not include it.

(emphasis added)

Australian Authority

The judicial commentary in Australia has not been extensive but, unsurprisingly, has been helpful.

The relevant authorities were collected, usefully, by the Court of Appeal of the Supreme Court of Western Australia in Majinski v Western Australia (2013) 226 A Crim R 552;  [2013] WASCA 10. Martin CJ (Buss and Mazza JJA agreeing) wrote:

(emphasis added)

The Result

I reiterate that Barristers Rules 68 and 69 proscribe a barrister proceeding to:

… advise or suggest to a witness that false or misleading evidence should be given nor condone another person doing so; or … coach a witness by advising what answers the witness should give to questions which might be asked.

Witness familiarisation in the form of mock trial involving the specific evidence of the dispute in question – essentially constituting witness training – inexorably entails breach of the rule by a barrister advising or acceding to such course.

If a barrister comes to know that such training has occurred – whether by another barrister or solicitor on the team, or externally – but continues to act without disclosure of same to the other party and the court, so much constitutes a contravention of Rule 68 on account of that entailing the barrister having “condoned” same.

The same outcome ensues if such training is based on evidence with distinct similarities to that dispute.

What of familiarisation training which is wholly divorced from the facts of the dispute, but involves training as to cross-examination techniques and how such techniques may be responded to by the witness? 

In respect of this great care must be taken by counsel.  If it is to ensue,  or has ensued, the barrister will need to elicit – and, indeed, be informed of in writing –  the precise metes and bounds of such training.  If refused, the barrister ought cease to act.

If such training ensues – whether or not undertaken externally from the briefing solicitor – at the least it need be so undertaken:

• one on one, not with witnesses collectively;
• under the over-arching supervision of the retained briefing solicitor;
• wholly recorded, so there is no doubt as to what has transpired (including inquiries by the witness on any issue the importance of which may not be known by the trainer who is not informed as to the underlying dispute facts);
• in addressing cross-examination techniques, be bereft of a scintilla of suggestion as to a particular answer a witness ought or may give to a generic cross-examination question.

This training content – for each witness – need be studied by counsel briefed for that party.  Such training must not transcend the various facets of proper witness preparation referred to by Justice Peter Young in the last extract above in Majinski.

Professional external service providers – including that referred to in the above Proctor article – are endeavouring, no doubt assiduously, to abide the relevant ethical touchstones.  Any innovation which may assist efficient adducing of court testimony – but, necessarily, untainted and unembroided in character – is to be commended.   In the view of the writer, however – given the risks involved for a barrister briefed – “the game is not worth the candle!”.   I summarise below my reasons.

First, I reiterate that barristers need harbour close understanding of what is entailed in the training, the barrister not being party to such training.  So much will be challenging.

Second, efficient and comprehensive preparation of a witness for trial is best undertaken, solely, by the lawyers (solicitor and barrister) engaged in the carriage of the litigation in the court or tribunal in question.  Some may characterise that view as unduly conservative, but such matters are too important to the administration of justice to be left to chance.

Third, pragmatically, if it were revealed that such formal familiarisation has ensued, so much is likely to pique a judicial response entailing (at the least) greater scrutiny of the evidence of that witness.  Perhaps, over time, such response will diminish.

Fourth, despite any permissible formal witness familiarisation training undertaken, counsel ought still engage in relevant pre-hearing preparation of the witnesses in the conventional way.  It need ensue in any event, so why not spend the time, and available litigation funds, on that endeavour.

Invariably, I request my briefing solicitor – when dealing with witnesses unfamiliar in that role, and after conferring with counsel – take each witness (separately) to the court complex for a short time so such witness can see how a trial operates, and the locations occupied in the court by the various persons who participate in a trial.  Experience dictates that settles their (initial) nerves concerning giving evidence, irrespective of their sophistication and education, by exposing them to the court environment.

I commend to the barrister reader the content of the lastmentioned extract from Majinski for the germane ethical touchstones.  Strict compliance therewith will see counsel clear of any suggestion of contravention of the “coaching” rule.