Witness Preparation: A Necessary but Ethically Hazy Issue

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As defined in the American Society of Trial Consultants (ASTC, 2016) Professional Code, witness preparation is the assistance trial consultants provide to attorneys or other clients to improve witnesses’ understanding and confidence in their testimony as well as witnesses’ ability to truthfully communicate their testimony in a clear and convincing manner. The goals of this process are to obtain information, clarify important points, resolve misperceptions, and organize the case presentation (LeGrande & Mierau, 2004). Early questioning of the witness allows for the opportunity to make judgments concerning witnesses’ credibility, certainty, and the accuracy of their recollection. For example, the testimony may be contaminated by external sources or the passage of time. Additionally, witness preparation can alert the attorney to inconsistencies in the witness’s testimony. Furthermore, t is important to ensure that witnesses understand the content of their testimony and that they are capable of persuasively communicating, as their testimony may potentially strongly influence others’ perceptions of the witnesses’ credibility (Cramer, DeCoster, Harris, Fletcher, & Brodsky, 2011). Such goals are achieved through the education of the witness and the attorney as well as modification of testimony delivery. Although the ASTC does not clarify how a trial consultant should accomplish these tasks, it does state that ASTC members should not attempt to alter or conceal the truth of witness testimony. Yet, due to this lack of clarification, ethical issues underlie many potential witness preparation activities.

Although those outside the court system may be wary of the fairness in using expensive trial consultants, such an argument does not necessarily apply when one considers other aspects of the legal system that are influenced by wealth, like the high costs of lawyers. In order to conceptualize perceived fairness in the legal system, one may use the theoretical framework of procedural justice (Stolle, Robbennolt, & Wiener, 1996). A procedure’s perceived fairness is directly related to the individual’s amount of control in the decision-making process. Someone’s perception of his or her level of control may be altered by his or her degree of self-efficacy. Self-efficacy is a perception about one’s ability to conduct a particular behavior (Cramer, Neal, & Brodsky, 2009). Self-confidence differs in that it functions as a degree of certainty about one’s judgment. Thus, witness self-efficacy can be defined as one’s perceived ability to effectively testify in court while witness confidence concerns one’s degree of certainty, typically after the fact, in the content of and statements made during one’s testimony. In order to improve the level of perceived fairness and degree of control, trial consultants can employ interventions that improve a witness’s beliefs about their ability to testify, or their level of self-efficacy. Such interventions may target the witness’s cognitive, emotional, and behavioral aspects of testifying.

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In order to increase the witness’s level of credibility, trial consultants may aim to reduce visible signs of anxiety and stress because many people associate nervous nonverbal behaviors as signs of deception. However, surveys have shown that witness preparation may be counterproductive if it is used to remove all manifestations of a criminal defendant’s nervousness because the survey respondents expect at least a small degree of nervous behavior when testifying (Boccaccini & Brodsky, 2002). If the outward signs of nervous behavior are erased, the witness’s believability actually decreases; instead, mild nervousness of criminal defendants while on the stand may actually enhance believability. When hiring expert witnesses, Boccaccini and Brodsky (2002) found that respondents generally preferred local clinical experts over those who were paid for their testimony or were academic experts. In addition, perceptions of an expert’s credibility are affected by their knowledge, level of confidence, trustworthiness, and degree of likability (Cramer et al., 2011). Research has shown that the highest ratings of an expert’s credibility were associated with only a moderate level of confidence as demonstrated through their behavioral testimony delivery ability. The results of these studies demonstrate that the practical experience of witnesses is highly valued and should be highlighted during a trial. Additionally, a mild amount of nervousness in criminal defendants and a moderate level of confidence in expert witnesses are likely to increase their persuasiveness and credibility.

Although there are numerous ways of preparing a witness to testify in court, there are also numerous ways in which ethical issues may arise in the application of these techniques. A major ethical issue is apparent in the lack of external and internal ethical controls on the trial consulting industry. The ASTC does not impose any minimum membership recruitments; therefore, there is no required level of education or licensure. Furthermore, the practice guidelines are both unenforceable and vague, meaning that they are incapable of guiding consistent ethical practice (LeGrande & Mierau, 2004). In the practice of witness preparation itself, there are a myriad of potential ethical issues. A trial consultant or attorney may, intentionally or inadvertently, alter a witness’s testimony through the preparation process by “refreshing” his or her recollection of the case. The witness’s original memory was likely filled with gaps that have now been filled with information he or she did not have previously. This is especially important to consider when interviewing children, eyewitnesses, and friendly witnesses because these groups are more susceptible to the interviewer’s influence. Consequently, the trial consultant must stay on the side of helping the witness to recall and avoid attempting to reconstruct events because doing so may constitute impermissible coaching.

When preparing witnesses by educating them on the laws applicable to the current case, the consultant must be attentive to the timing of any such explanations as they relate to specific facts and witnesses. Otherwise, the consultant may unintentionally provide advice on how to answer a question or provide a motive not to disclose the requested information (Salmi, 1999). Other methods of witness preparation that may lie on the cusp of the ethical border are abundant, including suggesting different word choices for the testimony and suggesting the witness alter his or her demeanor. When altering the word choice in the testimony, the trial consultant or attorney can affect the jury’s perception of the testimony as a whole by either increasing or decreasing the apparent severity of an event described. Additionally, changing a witness’s demeanor to appear more confident may mislead the jury because the confidence of the witness, rather the accuracy of his or her testimony, is the major determinant of juror belief. This is especially concerning if the witness is not confident in his or her given testimony. Another ethical issue may arise through the repeated rehearsal of upcoming testimony. The repetition of a story is extremely suggestive, making the witness appear more confident and convincing in his or her final testimony. Consequently, such rehearsal may mislead the jury about the accuracy of this testimony due to the witness’s apparent confidence. The jury may give more weight to the testimony than they would have given if the witness had not altered his or her demeanor or practiced as much. These preparation strategies could be enough to sway a case.

Although certain preparation tactics have the potential to become unethical, trial consultants and attorneys can avoid ethical problems by considering the potential effects of over-preparing their witnesses. Witness preparation can be integral in determining a witness’s credibility and confidence, as well as the accuracy of his or her memory. This allows consultants and attorneys to uncover possible inconsistencies in a witness’s testimony that could undermine their case. Yet, one must consider the impact of potentially obstructing the pursuit of justice by altering a witness’s testimony or demeanor so much that it no longer resembles the truth. Separating the ethical choice from the winning choice is not always easy, especially because the ASTC Professional Code is not clear on the topic. Yet, other ethical codes and research studies can guide attorneys and their trial consultants how to remain ethical while supporting their case.

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