From liberal extremity to safe mainstream? The comparative controversies of witness preparation in the United States

This contribution examines the idea that partisan witness preparation in criminal trials inthe United States amounts to a comparative anomaly in the common law context. In Americanprocedure, parties are not constrained by straightforward rules and ethical canons in their choiceand deployment of preparation techniques, save for a prohibition on subornation and use of perjury.The lax regulation of pre-trial witness interviews in the US contrasts with the stricter rules onprofessional conduct of barristers and prosecutors in England and Wales and the cautious attitudetowards extensive witness preparation prevailing in Canada, Australia, and New Zealand. Thesedivisions mark deep-seated differences between these countries in what fact-finding arrangementsare deemed optimal in the criminal process and what importance is given to witness spontaneityas opposed to a leeway for parties to shape the evidence submitted for evaluation to the factfinder.Although comparative divergence alone does not render the US approach ‘anomalous’, thedifficulty of reconciling its liberal practice with the trial system’s quest for the truth in a sensejustifies this label. Some of the excesses of the current practice could be remedied and the truthfindingobjective given a more prominent place in the criminal process if a stricter approach weretaken towards the regulation of witness preparation in the US and legal and ethical norms werealigned more closely to establishing the truth. In distinguishing between ethical and unethicalconduct, the rules should consider not only the mental element of counsel but also the objectiveeffects of preparation on the authenticity and accuracy of witness recollection. While more researchinto such effects is needed, the article argues tentatively that the most suggestive and thereforeobjectionable techniques used in the US should be abandoned or subjected to more rigorousregulation.