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 4/14/2017

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] 4/14/2017

A lawyer has an “ethical duty to prepare a witness.” 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) 4/14/2017

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) 4/14/2017

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) 4/14/2017

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. 4/14/2017

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.” 4/14/2017

“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. 4/14/2017

“THE VERDICT” CLIP 4/14/2017

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? 4/14/2017

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.” 4/14/2017

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? 4/14/2017

RESTATEMENT SEC. 116 Comment B: “Preparation … may include: “Discussing the witness’s recollections and probable testimony”; 4/14/2017

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.” 4/14/2017

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 . . . . It is the difference between, say, “tax avoidance,” and “tax evasion.” 4/14/2017

ABA MODEL RULE 3.4(b) A lawyer shall not: 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; 4/14/2017

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.” 4/14/2017

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. 4/14/2017

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. 4/14/2017

L.A. LAW EXCERPT 4/14/2017

“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? 4/14/2017

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”; 4/14/2017

PERMISSIBLE WITNESS PREP? Can a lawyer ethically challenge a witness’s testimony . . . and try to change it? 4/14/2017

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 co-defendant 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? 4/14/2017

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.” 4/14/2017

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].” 4/14/2017

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. 4/14/2017

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; 4/14/2017

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. 4/14/2017

RESTATEMENT SEC. 116: COMMENT b, CONT. Proper witness preparation includes: “Discussing the applicability of law to the events in issue”; 4/14/2017

“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. 4/14/2017

“ANATOMY OF A MURDER” CLIP 4/14/2017

“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? 4/14/2017

“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? 4/14/2017

“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. 4/14/2017

PROPER WITNESS PREP? The Baron & Budd Memo 4/14/2017

The Baron & Budd Memo “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.” 4/14/2017

The Baron & Budd Memo “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.” 4/14/2017

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.” “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!” 4/14/2017

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.” 4/14/2017

“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. 4/14/2017

THE PRACTICE 4/14/2017

“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?) 4/14/2017

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 4/14/2017

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. 4/14/2017

(Are “tell the truth” admonitions sufficient to stay “ethical”?) 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”?) 4/14/2017

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.” 4/14/2017

MOSS’ CHALLENGE OUT OF RESPECT FOR YOURSELF, YOUR PROFESSION, AND THE JUSTICE SYSTEM: Don’t Be A Tool. 4/14/2017