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St. Mary's Journal on Legal Malpractice & Ethics

First Page

197

Date Created

5-8-2025

Publisher

St. Mary's University School of Law

Editor

Natalia Francesca Jasso

Last Page

220

Abstract

In preparing a witness, may a lawyer script the testimony by taking the witness through repeated rehearsals to fabricate a narrative in the form directed by the lawyer and to use words that the lawyer suggests are more favorable for the represented party? Suppose the lawyer believes a suggestion to the witness regarding the specific substance or word choice of testimony does not introduce a falsehood but rather produces a more favorable spin on the witness narrative. May the lawyer justify that shaping of testimonial content as legitimate zealous representation of a client?

Given that any such suggestion by the lawyer will deviate from the witness’s own story and choice of words in describing events, is it not inevitable that some element of deception has now been introduced into the testimony? Indeed, preparatory activities may overwhelm the witness’s autonomy, with the result that the testimony becomes that of the lawyer with the witness being only a mouthpiece.

Most importantly, the trier of fact should be permitted to learn about the extent of witness preparation, including possible scripting of witness testimony. Rather than invoking the disciplinary process, the use of ordinary tools of trial advocacy may serve us better.

By emphasizing the proper role of cross-examination in uncovering attempts, whether ethically indefensible or simply doubtful, we may achieve the greater good of allowing the trier of fact to evaluate the substance and credibility of the witness testimony. In addition, if the lawyer anticipates that witness preparation will be within the scope of rigorous cross-examination, the lawyer may be more careful not to indulge in means that appear designed to sway the witness from the straight path of genuine testimony.

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