Trial Law Question: Coaching of Witnesses

[Mike 03]

If you are either a defense attorney or a prosecutor, and there is apparent cause to believe that a witness for the opposing party has been coached, what--if anything--can you do about it? Furthermore, how could you impeach that witness without inferring wrongdoing against both the opposing attorney and the witness?

An example of "cause to believe" might be:

Out of the jury's presence, the attorney makes clear that he wants to get into evidence some bit of testimony that the Court rules is not admissible, yet this "miracle witness" comes onto the stand and by giving unresponsive answers to leading questions of very wide latitude manages to get on the record and before the jury the very "talking points" that the Court had ruled were not admissible, almost to the syllable in terms of how counsel phrased his argument when he was arguing to have it admitted in the first place.

The opposing party did not object because to object would have called undue attention to something that he did not want to bring attention to.

But I was trying to put myself in the shoes of the attorney opposite the one who had called this witness on direct and elicited these damaging and extraneous testimony points.

What would or can you do?

There's no objection, as far as I'm aware, as to "this witness has obviously been coached."

And the only thing I could think to do on cross would be to try to get the witness to confess to having been coached, but that is dangerous because the witness would almost surely deny it.

After this witness testified, and out of the hearing of the jury, the attorney was chastised for bringing into evidence information that had been barred, and he said, in essence, "Well, Your Honor, what on earth can I do if my witness just happens to conveniently blurt out something he was told not to, in exactly the words I would have hoped he would?" (I'm kidding a bit here.)

Interesting dilemma for the opposing party.

[Coyote_Bandit]

1. One of the fundamental teachings

in moot court is not to put a witness on unless you know what they are going to say. Coaching witnesses is quite common - and it is not unethical unless it results in false testimony. It is also true that attorneys cannot control what witnesses say and how they respond to questions. The opposing party ought to argue the case rather than fret about evidentiary technicalities and coached witnesses.

Perhaps you should suspend your reading of that evidence hornbook and read about some of the really great trial attorneys. Many of them were colorful characters. And many of them employed tactics that went well beyond the standard evidentiary techniques. Ever hear about Clarence Darrow's piano wire cigar?

[nichomachus]

3. Love the Clarence Darrow cigar story - too bad you can't smoke in court anymore

However, I did know of one lawyer who brought a busty young "colleague" to sit at the defense table during the prosecutor's closing arguments. Several of the male jurors were focusing more on her straining buttons than on the argument.

[Mike 03]

5. Thanks

It's true, I'm not an attorney, but I do take certain trials seriously.

I asked this question to learn, not to invent controversy.

But thank you for your opinion. It is most informative and most welcome.

[Mike 03]

9. By the way, I'm aware of that truism about "never asking a question of a witness you do not

know the answer to."

I can't even count the number of times I have seen that general principle blow up in front of a jury.

I don't know for a fact that every witness is prepared in advance by an attorney. I am sure that any statements they provide to investigators is a product of discovery.

Otherwise, witnesses would not forget what they told the investigators closer in time to the incident. After all, who would willingly want to go before a jury and make a bad error that could have been prevented had they been coached or urged to reread their testimony prior to court appearance?

[kanrok]

2. The purpose of a motion in limine

is to preclude inadmissible evidence from coming in at trial.

The judge may issue an order precluding the evidence, but it is the burden of the objecting party to properly and timely object to the evidence once it sees the light of day.

The penalty for not objecting to the inadmissible evidence when it is "blurted out" is to allow the evidence to come in, and to waive any appeal issues.

I loathe attorneys who violate motions in limine.

Unless the evidence is benign, I will object to it, ask the court for a sidebar, ask the court to admonish the witness and the lawyer in front of the jury and ask that the evidence be stricken.

IMHO juries do not like it when lawyers break the rules.

They look to the judge for guidance about how they should react, and they do not like it when attorneys piss off the judge.

If the attorney keeps up with that game I will ask for a mistrial.

I would make it a practice to object, object, object and object some more.

[Mike 03]

6. I very much appreciate your post. It is more on point than the prior answers.

The attorney was instructed, out of the jury's presence, that the evidence was inadmissable, so I don't think the jury even knows whether it is or is not, or its significance, and they were not given a limiting instruction or told to strike it.

But IMO it was a direct and obvious attempt to introduce evidence into the record, by one party, in spite of six hearings that instructed him to not introduce this evidence before the jury.

Also, it came out of the blue, by a witness not qualified, particularly, to testify on this issue of fact.

Thank you very much for your opinion on this matter. I have learned so much from the legal-eagles here on DU.

You people are awesome and informative.

[MichaelHarris]

4. All the world is

is a stage and the people merely actors. The same is true in a courtroom. An attorney would never put an "un-coached or unrehearsed" witness on the stand.

[Mike 03]

7. Interesting. I don't know how to respond, other than to say that I have

seen testimony where there was no doubt in my mind that the witness had never even seen a lawyer before, let alone been coached in his/her testimony.

If you are right, my hat is off the those coached witnesses who have no appearance of having been coached or told what to say. I know, if told what to say, I could never be that smoothe as some of them are.

[MichaelHarris]

8. coached

and being told what to say is different. A person could be coached just to relax, or to show passion.