THE ETHICS OF WITNESS
PREPARATION: A Peek Inside the
Woodshed
by
FRED MOSS
PROF. EMERITUS
SMU DEDMAN SCHOOL OF LAW
THE ETHICS OF WITNESS PREPARATION
3/15/2016
2
The English Position
U. K. Bar Standards Board Code of
Conduct. A barrister must not:
 rehearse, practise or coach a witness in
relation to his evidence;
 you must not encourage a witness to
give evidence which is misleading or
untruthful;
 [rC9, .3, .4]
3/15/2016
3
THE AMERICAN POSITION
A lawyer has an “ethical duty
to prepare a witness.”
In re Stratosphere Corp.
Securities Litigation, 182 FRD 614
(D.Nev. 1998)
3/15/2016
4
THE AMERICAN POSITION
“[The witness] underwent intensive coaching
prior to trial,
 to freeze his testimony,
 to prevent unexpected responses, and
 to assure that he would provide critical
information . . . without the necessity of
tedious, repetitive pinpoint questioning.
 This is not improper, so long as the testimony
actually given is truthful.”

U.S. v. JOHNSON, 487 F.2d 1318 (5th Cir. 1973)
3/15/2016
5
THE AMERICAN POSITION
“It is the usual and legitimate practice
for ethical and diligent counsel to
confer with a witness whom he is about
to call prior to his giving testimony. . . .
There is no doubt that these practices
are often abused.”
HAMDI & IBRAHIM MANGO CO. v. FIRE ASSOC.
OF PHILA., 20 FRD 181 (SDNY 1957)
3/15/2016
6
PERMISSIBLE PREP TECHNIQUES
 Restatement
Of Law Governing
Lawyers, Section 116, comment b.
(2000):
(1) a lawyer may interview a
witness for the purpose of
preparing the witness to
testify.
3/15/2016
7
RESTATEMENT SEC. 116,
COMMENT b, CONT.
Permissible preparation includes:

“Discussing probable lines of hostile
cross-examination.”
 Suggesting
choice of words “to
make the witness’s meaning
clear.”
3/15/2016
8
“THE VERDICT” (1982)
James Mason represents a
hospital and an anesthesiologist
sued after a mother goes into a
coma during childbirth. Mason,
along with a few of his
associates, are preparing the
doctor for his testimony.
3/15/2016
9
“THE VERDICT” CLIP
3/15/2016
10
SUGGESTING WORDS
 He
manipulated the doctor’s
words and demeanor. Right?
 Did Mason change the
evidence? Or just make it more
forceful and persuasive?
 Where is “The Line” here?
3/15/2016
11
SUGGESTING WORDS:

Hayworth v. State, 840 P.2d 912 (Wisc. 1992) –
lawyer suggested defendant say he “cut”
rather than “stabbed” the victim. The court:
“ [A]dvising the witness about the most
credible way to present that content – and
rehearsing that presentation – have been
held not to raise any ethical problems.”
3/15/2016
12
RESTATEMENT SEC. 116

COMMENT b: “Preparation…may include:
“Discussing…effective courtroom
demeanor”: Can a lawyer…
 Tell client or witness what to wear (or not)?
 Jewelry? Lapel pins? Shave and
haircut? Cover tattoos?
 Buy clothing, jewelry, pins? Glasses?
 How to appear when in court? When to
cry?
3/15/2016
13
RESTATEMENT SEC. 116
B: “Preparation …
may include:
 Comment
 “Discussing
the witness’s
recollections and probable
testimony”;
3/15/2016
14
RESTATEMENT SEC. 116,
COMMENT b, CONT.
 Rehearsing
testimony is proper.
 “However,
a lawyer may not
assist the witness to testify
falsely as to a material fact.”
3/15/2016
15
ABA MODEL RULE 1.2(d)
(d) A lawyer shall not counsel a
client to engage, or assist a
client, in conduct that the
lawyer knows is criminal or
fraudulent . . . .
3/15/2016
ABA MODEL RULE 3.4(b)
FAIRNESS TO OPPOSING PARTY
AND COUNSEL
A lawyer shall not:
(b) falsify evidence, counsel or
assist a witness to testify falsely,
or offer an inducement to a
witness that is prohibited by law;
3/15/2016
17
RESTATEMENT OF LAW
GOVERNING LAWYERS § 120

COMMENT d:
 “False
testimony includes
testimony . . . from a witness
who the lawyer knows is only
guessing or reciting what the
witness has been instructed to
say.”
3/15/2016
18
ABA MODEL RULE 3.3
(Candor Toward The Tribunal)
(a) A lawyer shall not knowingly:
(3) offer evidence that the lawyer knows to
be false.
ABA MODEL RULE 1.0 (Terminology)
 f) "Knowingly," "known," or "knows" denotes
actual knowledge of the fact in question. A
person's knowledge may be inferred from
circumstances.
3/15/2016
19
LA Law (circa 1987)
© Twentieth Century Fox
Kusak,
defending a teacher
accused of murdering a
student, is preparing a
character witness, a
humanities professor, before
his testimony the next day.
3/15/2016
20
L.A. LAW EXCERPT
3/15/2016
21
“L. A. LAW” EXCERPT
 Did
Kusak “sandpaper” the witness’s
story too much? Or, just suggest more
accurate, forceful words?
 Would it be different if Kusak sent the
witness an affidavit Kusak had prepared
and asked him to edit it or sign it?
 Does Kusak know the witness is giving
false evidence?
3/15/2016
22
RESTATEMENT SEC. 116
 “[A
lawyer may] reveal[ ] other
testimony or evidence that will be
presented and ask[ ] the witness
to reconsider the witness’s
recollection or recounting of
events in that light”;
3/15/2016
23
PERMISSIBLE WITNESS PREP?
Can a lawyer ethically challenge
a witness’s testimony . . .
and try to change it?
3/15/2016
24
PERMISSIBLE WITNESS PREP?

RTC v. Bright, 6 F.3d 336 (5th Cir. 1993)
Gov’t lawyers challenge a bank VP’s story
and provide in her proposed affidavit “new
facts” learned from other witnesses. They
threaten the VP being named a codefendant if she does not tell the “whole
truth.” She agrees to some new facts but
denies others. When they are removed
from the affidavit, she signs it. Proper?
3/15/2016
25
RTC v. BRIGHT, 6 F.3d 336
(5TH Cir. 1993)
The Court: “Were [the witness] giving
testimony at a deposition or trial, the
attorneys for either side would not be
required to accept her initial testimony
at face value but would be able to
confront her with other information to
challenge her testimony or attempt to
persuade her to change it.”
3/15/2016
26
RTC. v. BRIGHT (CON’T.)
. . . “[I]n an arms-length interview
with a witness [it is proper] for an
attorney to attempt to persuade
her, even aggressively, that her
initial version of a certain fact
situation is not complete or
accurate [assuming a good faith
basis for believing so].”
3/15/2016
27
RTC. v. BRIGHT (CON’T.)
Resolution:
Because the gov’t lawyers
removed all the “new facts”
that the VP objected to before
she agreed to sign the
affidavit, the lawyers acted
properly.
3/15/2016
28
RESTATEMENT SEC. 116:
COMMENT b, CONT.
Prep
may include: Reviewing
documents & other physical
evidence that may be
introduced; and
Reviewing the context into
which the witness’s
observations or opinions will fit;
3/15/2016
29
ABA MODEL RULE 1.2(d)
[A] lawyer may discuss the legal
consequences of any proposed
course of conduct with a client and
may counsel or assist a client to
make a good faith effort to
determine the validity, scope,
meaning or application of the law.
3/15/2016
30
RESTATEMENT SEC. 116:
COMMENT b, CONT.
 Proper
witness preparation
includes:
 “Discussing
the applicability of
law to the events in issue”;
3/15/2016
31
“ANATOMY OF A MURDER” (1959)
Lieutenant Manion is charged with
murdering Barney Quill, a bar owner, in
front of several people. Manion’s wife
had told him earlier that evening that
Quill had raped her as he drove her
home from the bar.
 Jimmy Stewart is Manion’s lawyer and is
visiting him at the jail.

3/15/2016
32
“ANATOMY OF A MURDER” CLIP
3/15/2016
33
“ANATOMY OF A MURDER”
Did Attorney Beigler Go Too Far?
 Didn’t he just “explain a matter to the
extent reasonably necessary to permit the
client to make informed decisions” per
Rule 1.03???
 If not, when did he cross the line?

3/15/2016
34
“ANATOMY OF A MURDER”
Ethical questions to consider:
What was Beigler’s purpose in letting his
client know which was the only legally viable
defense BEFORE getting the pertinent facts?
 Didn’t Beigler, in effect, tell his client what his
story must be if he is to be found not guilty?
 Isn’t “timing” the key? May/should a lawyer tell
his client which factual scenario is the only
escape route before asking for the facts?
 Isn’t doing so knowingly facilitating perjury?

3/15/2016
35
“ANATOMY OF A MURDER”
ABA MODEL RULE 1.2, Comment [9]:
There is a critical distinction between
presenting an analysis of legal aspects of
questionable conduct and recommending
the means by which a crime or fraud might
be committed with impunity.
3/15/2016
36
PROPER WITNESS PREP?
The Baron & Budd Memo
3/15/2016
37
The Baron & Budd Memo
1.
“How well you know the name
of each product ... will
determine whether that
defendant will want to offer you
a settlement.”
“Remember to say you saw the
NAMES on the BAGS.”
3/15/2016
38
The Baron & Budd Memo
2.
3.
“It is important to emphasize that
you had NO IDEA ASBESTOS
WAS DANGEROUS.”
“It is important to maintain that you
NEVER saw any labels that said
WARNING or DANGER.”
3/15/2016
39
The Baron & Budd Memo
“Do not say you saw more of one brand
than another. . . . Be CONFIDENT that
you saw just as much of one brand as the
others.”
5. “You may be asked how you are able to
recall so many product names. The best
answer is that you recall seeing the
names on the containers or the product
itself. The more you thought about it
the more you remembered!”
4.
3/15/2016
40
The Baron & Budd Memo
6.
“If there is a MISTAKE on you
Work History Sheets, explain
that the ‘girl from Baron & Budd’
must have misunderstood what
you told her when she wrote it
down.”
3/15/2016
41
“THE PRACTICE”
 Defendant
is on trial for murdering
his wife. The defense: suicide.
The state’s case has not gone
well. Its final witness is the victim’s
brother who will testify the next
morning. In this scene, the
prosecutors meet with the witness
in their office.
3/15/2016
42
THE PRACTICE
3/15/2016
43
“THE PRACTICE” CLIP
 Unethical
coaching? If so, why?
 Does the D.A. know if the witness
will lie?
 Does it matter if the D.A. doesn’t
care as long as he is unsure?
 If unethical, how should he have
done it? (Get the facts first?)
3/15/2016
44
MOSS’ ETHICS TEST(S):
The Easy Ones:
1. If the lawyer knows the witness’s
testimony is -- intentionally or
unwittingly – false = unethical
2. If the lawyer intentionally attempts
to cause the witness to (knowingly
or unwittingly) mislead the factfinder
= unethical
3/15/2016
45
MOSS’ TEST(S):
3. If the lawyer knows, or is
aware of a substantial risk
that the witness will view the
lawyer’s conduct as an
invitation to testify falsely =
unethical.
3/15/2016
46
MOSS’ TEST(S):
THE HARDEST ONE:
4. The lawyer is willfully/
intentionally indifferent to whether
the prompted testimony is true or
false.
 (Are “tell the truth” admonitions
sufficient to stay “ethical”?)
3/15/2016
47
MOSS’ CHALLENGE
 Lawyers
know how to prep witnesses
so as to avoid facilitating perjury.
 Lawyers, as “officers of the court,”
have a duty not to encourage,
facilitate or allow false testimony.
 Otherwise, the lawyer becomes just
“a tool” of the client’s fraud and
forfeits the right to be called an
“independent professional.”
3/15/2016
48
MOSS’ CHALLENGE
OUT OF RESPECT FOR
YOURSELF,
YOUR PROFESSION, AND
THE JUSTICE SYSTEM:
Don’t Be A Tool.
3/15/2016
49