Witness Preparation before Trial in Anglo-American Law: Aims, Dangers, and Remedies

Abstract

Witness preparation before trial constitutes one of the lawyers’ most important and fundamental tools in the practice of criminal law. It fulfills the lawyer's professional duties both towards their client and towards the court, and it also contributes to the effectiveness of the judicial process. Despite the centrality and importance of this practice, it creates ethical and evidentiary difficulties. Conducting such an interview is often accompanied by the fear that the interview will be abused and might serve as an improper means to guide and coach the witness out of court. The fears and dangers embodied in witness interviews highlight the need for an arrangement for both the ethical and evidentiary aspects involved. In this article, I discuss the purposes of witness preparation, the risks and difficulties that it entails, the regulation of this practice in Anglo-American law (the US, England, Israel, Canada, Australia and New Zealand), and I suggest a possible model arrangement that would, in my opinion, provide a comprehensive response to the concerns and difficulties this practice engenders and which can contribute to lawyers’ professionalism and promote the purposes of criminal procedure.