Integrity of evidence (coaching of witness) Flashcards
Why are their barrister conduct rules regarding the integrity/protection of evidence? Hint 2
The rules regarding the protection of evidence are directed to:-
(1) ensure that evidence which is presented to the court is not dealt with in any way which will diminish it’s value to the proper administration of justice, and
(2) the improper treatment of evidence may effect the creditability of such evidence (i.e. collusion, direction, or fabrication) and potentially be detrimental to the client’s case.
Question: Your are instructed to appear in on civil hearing. Your instructing solicitor calls you and explains that she has on the phone call one of the client’s main witnesses. The witness explains the other sides lawyer has called her asking to provide a statement for them, however before replying she wanted to know whether she has to assist them or note.
Discuss.
I would explain that I would take no steps towards preventing or discouraging the witness discussing with the other side or being interviewed by the other side in the proceeding, and I would also explain to the witness that he or she does not need to confer or be interviewed by the other side it is their choice what to do…if asked why I would explain this is because I have a duty to the court to act with independence in the interests of the administration of justice…and by inhibiting a witness giving evidence for the proper other side my prejudice the administration of justice….
r 73 and r 74
What does rule 73 and rule 74 state? (hint integrity of evidence)
r 73 counsel must not take any step to prevent or discourage a prospective witness or witness conferring with an opponent or being interviewed by the or on behalf of any other person involved in the proceeding
r 74 this duty will not be breached by simply telling the witness that he or she need not agree to confer with the other side or be interviewed
What rules deal with coaching of witness?
r 68 and r 69
When preparing a witness to give evidence what can and can’t a barrister do?
State the rules, and rationale for why the rules exist.
r 68 a barrister must not when conferencing a witness (a) advise or suggest a witness that false or misleading evidence should be given or condone another person doing so AND
(b) coach a witness by advising what answers the witness should give to questions which might be asked
r 69 a barrister will not have breached r 69 by
(1) telling the witness to tell the truth;
(2) testing in conference the version of evidence to be given including drawing the witness’s attention to inconsistencies or other difficulties with their evidence…but must not tell witness to give a different version of the evidence which the witness believes to be true.
The rules around protection of evidence are designed to ensure that the evidence which is presented to the court is not dealt with in any way which would diminish it’s value to the administration of justice or effect the creditability of such evidence.
What is the benefit for preparing a witness to give evidence? (hint 2)
The benefit of preparing a witness to give evidence is that:-
(1) it allows a witness to become use to the forensic environment and
(2) enhance their ability to give evidence in a way which assists the court.
What rules deal with the joint conferencing with witnesses?
r 70-71
What is the rule against conferencing more than one lay witness?
r 70 a barrister must not confer with, or condone a legal practinoer, confering with more than one lay witness including apart of client at the same time about
(a) about any issue which there are reasonable grounds for the barrister to believe may contentious at hearing; and
(b) where conferral could effect evidence to be given by any of those witnesses,
unless the barrister believes there are special circumstances requiring such a conference
r 71 does permit such a conference where it only relates to a undertaking to the court, admissions, or concessions of fact, amendments of pleadings, or a settlement
The court in Day v Perisher Blue impugned the lawyers decision to conference multiple lay witnesses at once. What did the court say the impact of this was?
Sheller JA at [10] noted that the the only reasons someone would conference multiple lay witnesses at once and allow them to discuss their evidence among themselves is to ensure that they would speak with one voice about the events which occurred…this seriously undermines the the process by which evidence is taken. What was done was improper.
Summarise the facts, and relevant ethical principle from Day v Perisher Blue
Facts: Solicitor in preparing witnesses for trial organised a teleconference with the lay witness, and the lawyers then sent a letter providing written instruction as to what evidence they are expected to give. At the teleconference, all lay witnesses discussed their evidence and went through each of their statements. Each of the witnesses had been subject to pressure and suggestion from various persons as to the nature of their evidence.
The matter proceeded to hearing…and this eventually came out…
Appeal was allowed and a new hearing was re ordered, costs, and solicitor was required to show cause why no referral to LSC.
Ethical principles: The court remarked that this procedure casts very considerable doubt on the reliability of the witnesses evidence, taints their evidence, seriously undermines the process by which evidence is taken, and is improper.
what does r 72 state? (hint integrity of evidence related)
A barrister must not confer with any witness under cross examination unless…the cross examiner has consented before hand; or the barrister believes on reasonable grounds special circumstances (including instructions on comprise exist)…where this course is contemplated should have the cross examiners consent…preferable before but otherwise as soon as possible after such action has been taken.
Question: You are have been briefed to give legal advice on the prospects of a workplace accident matter. You have given preliminary advice, however you have suggested that the IS/client obtain witness statements regarding the incident so that further advice can be given regarding prospects. A few weeks later the instructing solicitor (who is very green) calls providing an update that 5 witnesses have been obtained and are willing to provide statements. The IS says that because he is so busy today he is going to take witness statements and conference the witnesses all at the same time so the witness statements are consistent, he doesn’t have to repeat himself, and everyone is ‘on the same page’. He noted that this would save considerable time and keep costs down for the client as the WIP is already high…and that once the statements were signed he would flick them through…and book in another conference.
Discuss.
I would explain to the solicitor that what his proposing is improper and I could not condone this process. I would explain that counsel and lawyers must not conference more than one lay witness including a party or client at the same time about any issue which there are reasonable grounds to believe will be a contentious issue at the hearing and that such a conferral could affect the evidence to be given by the witness (r 70). I would explain that this rule exist to protect the integrity of the evidence to not diminish its value to the administration of justice, and not affect the reliability of the evidence. I would note that the court in DAY v PERSIHER BLUE remarked that conferences such as the one proposed seriously undermines the process by which evidence is taken and is improper, it can also result in a mistrial, costs, and disciplinary action to the LSC. I would explain solicitor whilst there are some circumstances as per r 71 you can do it here that does not apply…and that the lawyer should take statements and conference witnesses separately
What rules regarding protecting the integrity of evidence? (Hint 4)
- No coaching witness (r 68 – r 69);
- Must not confer with multiple lay witnesses together (r 70 – r 71);
- Must not confer with witness under cross examination (r 72)
- No property in a witness (r 73 – r 74).
What is the rationale for the rule against conferencing more than one witness at time?
Counsel’s role in assisting the court in the administration of justice requires counsel to ensure the integrity of evidence.
The rule against conferencing more than one lay witnesses at a time reduces the risk of contamination of evidence and collusion between witnesses. If this occurs, it reduces the reliability, creditability, and integrity of the witness’s evidence. The evidence may be inadmissible or have reduced weight.
The benefit in efficiently conferencing more than one witness is outweighed by these considerations.
What is the rationale for the rules regarding of not coaching witnesses? (r 68- 69)
What is the rationale for this rule?
Counsel’s role in assisting the court in the administration of justice requires counsel to ensure the integrity of evidence.
Coaching of witness is contrary to the administration of justice because it is corrupting witnesses evidence in way which is favourable to the calling party and creates a risk of adversely affecting the accuracy of the witnesses evidence.
This may render the evidence inadmissible, or limited weight.
There is no ‘property’ in a witness.
Refer to any rule if applicable, the rationale of the rule, and the dangers to be aware of.
Discuss
r 73-74
The rational for the rule is that court has the right to hear from witnesses who can give admissible evdience and rule prevents parties from obstructing or hindering witness from doing so which would contrary to the proper administration of justice.
Parties should be aware however of the dangers of doing so namely (1) the possibility of witness tempering accusations which may reduce reliability of witness evidence and (2) impact credit of the interfering party.
Prudent to offer an interview to another sides witness in the presents of the other lawyer.
Where have you called a witness (or client) and they are getting cross examined are you allowed to communicate with that witness?
Is there an ethical rule? If so, what is it’s rationale? And what are the potential consequences for a breach.
Rule: r 72 a barrister must not confer with any witness called by the barrister on any manner unless permitted by the subsections of r 72.
Rationale:
Counsel has a duty to the administration of justice which includes the protecting of the integrity of evidence. Communicating with a witness during cross examination can be coaching or coaxing a witness.
This impacts the reliability, creditability, and integrity of the witnesses evidence. It can lead to a miscarriage of justice or professional misconduct.
Your have been instructed to appear on a criminal trial. Your client will need to give evidence.
During a conference, your client expresses he is nervous and has never given evidence before.
He asks if there is any tips or advice you could give him on what to say?
If also wants to know if when he is getting cross examined, you could give him a signal to know whether he should answer yes or no?
5 marks
Rule: r 72 a barrister must not confer with any witness including a client called by the matters on any matter related to the proceeding whilst that witness remains under cross examination unless (a) cross examiner has consented before hand ect (1 mark)
R 68-69: a barrister must not advise or suggest to a witness to give false or misleading evidence, and must not coach a witness by advise what answers to give to questions which might be asked. (1 mark)
Rationale: counsel has a duty to the administration of justice which requires the preservation of the integrity of evidence. Counsel is not permitted to communicate with a witness under cross because it could be consider coaching or coaxing a witness this then effects the reliability and creditability of the evidence which m ay lead to exclusion or reduced weight. It may also result in a miscarriage of justice…however you can prepare a witness to give evidence so they are familiar with the process of giving evidence. This assist the administration justice as a witness can more effectively assist the court in giving evidence and saves time. (2 marks)
Active role: I would explain to the client the above rules to my client. I would prepare him in accordance with r 69 BCR and would tell him that under no circumstances can I communicate with him during cross as it is unethical and would likely to more harm then good. (1 mark)
