Coaching
Ever since I started trying cases, I have been concerned about witness coaching and about where the line is between "prepping" and "coaching." I've ultimately decided that, as long as I'm not suborning perjury, anything is fair game.
Now, when I say suborning perjury, I basically mean getting a witness to say something that they wouldn't have said unless I pointed out a legal advantage.
Today, I was reading another blog which pointed out that the problem with the Moussaui trial is not "coaching," but the fact that the Court's sequestration order was violated. Afterall, all lawyers talk with witnesses about what they saw and heard and remember. We try to test the memories and we probe and we look for ways in which the story is internally consistent.
The problem here was that the Judge had ordered the witnesses not to discuss their testimony with other witnesses. The point of a sequestration order is to keep witness testimony pure, if you will. Witnesses aren't supposed to talk about the case and unconsciously align their testimony.
Intrigued by the question "just what exactly is coaching," I did a quick search on Westlaw in my jurisdiction and didn't find anything particularly instructive. A google search did reveal an article that appeard in the Cardozo law review. The article is a little too empirical for my taste, breaking coaching into categories and such. But in it I saw another central interest of mine arise, and that is the fallibility of memory. Of the convictions that were set aside because of DNA, the majority involve inaccurate identifications by an eyewitness. I have been struggling for some time to find some way to deal with this issue at trial. Everybody can accept the proposition that "he saw it plain as day, so it must have happened." The problem is that memory is malleable and fallible. I'm still struggling with how to most effectively address the issue with juries. But a good step is a sequestration order, and kudos to Judge Brinkema for sanctioning the government for the violation of her order.
Now, when I say suborning perjury, I basically mean getting a witness to say something that they wouldn't have said unless I pointed out a legal advantage.
Today, I was reading another blog which pointed out that the problem with the Moussaui trial is not "coaching," but the fact that the Court's sequestration order was violated. Afterall, all lawyers talk with witnesses about what they saw and heard and remember. We try to test the memories and we probe and we look for ways in which the story is internally consistent.
The problem here was that the Judge had ordered the witnesses not to discuss their testimony with other witnesses. The point of a sequestration order is to keep witness testimony pure, if you will. Witnesses aren't supposed to talk about the case and unconsciously align their testimony.
Intrigued by the question "just what exactly is coaching," I did a quick search on Westlaw in my jurisdiction and didn't find anything particularly instructive. A google search did reveal an article that appeard in the Cardozo law review. The article is a little too empirical for my taste, breaking coaching into categories and such. But in it I saw another central interest of mine arise, and that is the fallibility of memory. Of the convictions that were set aside because of DNA, the majority involve inaccurate identifications by an eyewitness. I have been struggling for some time to find some way to deal with this issue at trial. Everybody can accept the proposition that "he saw it plain as day, so it must have happened." The problem is that memory is malleable and fallible. I'm still struggling with how to most effectively address the issue with juries. But a good step is a sequestration order, and kudos to Judge Brinkema for sanctioning the government for the violation of her order.
posted by swd at 11:12 PM
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