23 Cardozo L. Rev. 829 Cardozo Law Review

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23 CDZLR 829


23 Cardozo L. Rev. 829

Cardozo Law Review

February, 2002

Bennett L. Gershman [FNa1]
Copyright (c) 2002 Yeshiva University; Bennett L. Gershman
      Witness coaching has been described as the “dark” [FN1]--some have even called it “dirty” [FN2]--secret of the U.S. adversary system. [FN3] It is a practice, some claim, that more than anything else has given trial lawyers a reputation as purveyors of falsehoods. [FN4] Witnesses are prepared by lawyers in private, no records are kept, and the participants do not openly discuss the encounter. [FN5] If false or *830 misleading testimony results, the only persons who know about it are the participants themselves. [FN6] And the capacity of cross-examination to expose improper coaching is extremely limited. [FN7]
      Given its controversial nature, one would expect the practice and ethics of witness coaching to have attracted close scrutiny by courts and commentators.  Interestingly, however, the subject has received relatively modest attention. [FN8] A handful of judicial [FN9] and ethics opinions [FN10] have discussed superficially the subject of witness *831 preparation and coaching. Practitioner manuals typically offer general guidance on how to prepare witnesses, [FN11] and occasionally address tactical and ethical issues involved in coaching. [FN12] Scholarly commentary has examined the ethical limits of witness preparation, particularly by differentiating acceptable techniques from improper techniques, which promote false or misleading testimony. [FN13] In addition, popular culture occasionally has dramatized the subject. [FN14] However, despite a discrete body of literature devoted to witness preparation generally, there has been very little discussion by courts and commentators on witness preparation and coaching by prosecutors. [FN15]
      The absence of critical examination of witness coaching by prosecutors is puzzling for two reasons.  First, there is an increasing concern among courts, lawmakers, and commentators that some prosecutors use the adversary system not to serve truth, but for self-serving purposes. [FN16] According to this view, the conduct *832 of some prosecutors in investigating cases and preparing witnesses to give testimony is undertaken not to ascertain, present, and protect the truth, but rather to manipulate the truth in order to secure a conviction.
      Second, there is an increasing concern--amply documented by recent reports of wrongful convictions--that the criminal justice system is seriously prone to error. [FN17] Critics contend that these errors are attributable to defects in the adversarial trial process, mostly from incompetent representation by defense lawyers and trial errors by prosecutors. [FN18] However, recent disclosures suggest that the origin of many, perhaps most, of these miscarriages of justice occurs before the cases actually reach the courtroom for *833 trial. Indeed, the inability of criminal trials to produce accurate results may be attributable in many cases to techniques used by prosecutors to prepare, shape, and polish the testimony of their witnesses.
      Absent any contemporaneous record of a prosecutor's pretrial interaction with witnesses, [FN19] it is exceedingly difficult for observers to investigate the preparation process to ascertain the extent to which prosecutors or police may have improperly influenced witnesses overtly, covertly, or even unwittingly to give false or misleading testimony. [FN20] Moreover, the difficulty of analyzing the witness-preparation process is compounded by the failure of courts and prosecutors to recognize or appreciate how cognitive factors such as memory, [FN21] language, [FN22] and suggestion [FN23] can affect the accuracy and truth of a witness's testimony.
I. Witness Coaching--The “Dark Secret” of Prosecutorial Conduct
      Given the secrecy surrounding the prosecutor's preparation of her witnesses and the inability to review the process meaningfully, it is virtually impossible to ascertain whether and to what extent witnesses have been coached by prosecutors and police to give false or misleading testimony.  Nevertheless, inferences can be drawn from cases, commentary, and empirical evidence to illuminate this murky process.  First, it is indisputable that some prosecutors coach witnesses with the deliberate objective of promoting false or misleading testimony.  Prosecutors do this primarily to (1) eliminate inconsistencies between a witness's earlier statements and her present testimony, (2) avoid details that *834 might embarrass the witness and weaken her testimony, and (3) conceal information that might reveal that the prosecutor has suppressed evidence.
      Additionally, prosecutors have the ability, consciously or unconsciously, to strengthen the case by questions and suggestions that cause the witness to fill gaps in memory, eliminate ambiguities or contradictions, sharpen language, create emphasis, and alter demeanor.  Some witnesses, moreover, are vulnerable to prosecutorial suggestions, or receptive to prosecutorial cues.  Indeed, the prosecutor's interaction with the cooperating witness is a paradigmatic example of the dangers and abuses of coaching.
      Finally, the absence of any contemporaneous record of the prosecutor's preparation of witnesses encourages improper coaching by hiding the process from meaningful oversight by courts or defense counsel.  Without some basis to believe that coaching occurred, a court would not invoke prophylactic safeguards to detect or prevent coaching.  And absent any documentation of the witness-preparation process, the defense lawyer has no basis to challenge the witness's testimony as the product of improper conduct by the prosecution.
A. Incentives for Coaching
1. Eliminate Discrepancies
      A prosecutor bent on obtaining a conviction may attempt to eliminate any significant inconsistencies in a witness's testimony.  Some prosecutors overtly influence their witness to alter materially an earlier, inconsistent version.  In Kyles v. Whitley, [FN24] a capital murder case, the prosecutor elicited testimony from Isaac Smallwood, a key eyewitness who gave an extremely detailed description of the killing. Smallwood claimed he saw Kyles struggle with the victim, produce a small, black .32 caliber gun from his right pocket, shoot the victim, and then drive off in the victim's LTD. [FN25] The prosecutor argued to the jury: “Isaac Smallwood, have you ever seen a better witness [?]” [FN26]
      However, in a statement Smallwood made to the police shortly after the killing, which the prosecutor did not disclose to the defense, Smallwood gave a vastly different account of the crime.  He told the police that he did not see the actual killing, did *835 not see the assailant outside the victim's vehicle, and saw the assailant for the first time driving toward him in a Thunderbird. [FN27]
      The U.S.  Supreme Court reversed the conviction because the prosecutor violated his constitutional obligation to disclose this information to the defense. [FN28] The majority opinion, however, noted how Smallwood's original story apparently had been “adjust[ed]” by the prosecutor by the time of the trial. [FN29] Disclosure of the earlier statements, the majority observed, not only would have “destroyed confidence in Smallwood's story,” but also would have “rais[ed] a substantial implication that the prosecutor had coached him to give it.” [FN30]
      A major incentive for prosecutors to use cooperating witnesses is to support an uncertain but consistent version of the facts, rather than to confirm an inconsistent version of the facts that may represent more of the truth. [FN31] As an example, one writer describes a proffer session in which a cooperating witness has identified several people as being present at a meeting to distribute drugs. [FN32] The witness fails to identify a particular individual as being present. The prosecutor, however, firmly believes from other evidence that this person was present at the meeting. When asked specifically whether this person was present, *836 the witness repeats that he was not present. The witness is asked: “Are you telling me that [he] was not there?” The witness now knows what the prosecutor wants to hear. After a break, when the witness is asked again, he now remembers that this individual was there.
2. Avoid Embarrassing Details
      Some prosecutors attempt to influence the testimony of witnesses to conceal information that might embarrass the witness and weaken the prosecutor's case.  As a consequence, the witness may be coached to give testimony that may be literally true but creates a false or misleading impression, while allowing the prosecutor to avoid a charge of outright solicitation of perjury.  One method of evasion is to instruct the witness to claim a lack of memory or knowledge about a question that may be embarrassing or otherwise harmful. [FN33] A prosecutor might reinforce this subtle message by reassuring the witness that while he has a duty to answer every question truthfully, an answer such as “I don't know” or “I don't remember” is a perfectly acceptable response when the witness is not absolutely certain of the answer. [FN34]
      Another strategy of concealment is to instruct the witness to answer only the question asked, and not to volunteer information. [FN35] An example is Alcorta v. Texas, [FN36] in which the Supreme Court reversed the defendant's murder conviction for stabbing his wife to death. The defendant admitted the killing but claimed it occurred in a fit of passion after discovering his wife, *837 whom he had already suspected of marital infidelity, kissing one Castelleja late at night in a parked car. Castelleja, the only eyewitness to the killing, testified that his relationship with the deceased had been nothing more than a casual friendship, [FN37] and that he had driven her home from work on the night she was killed.
      However, during pretrial preparation, the witness told the prosecutor that he had had sexual intercourse with the defendant's wife on five or six occasions shortly before her death.  This fact, if known or believed by the defendant, would have provided the defendant with a powerful motive for the killing.  The prosecutor advised the witness that he should not volunteer any information about sexual intercourse but if specifically asked about it, to answer truthfully. [FN38] The prosecutor's questions at trial, as reflected in one significant colloquy, were obviously designed to allow the witness to give literally truthful answers about his relationship with the deceased while carefully avoiding the subject of his sexual conduct with the deceased. [FN39]
3. Conceal Suppressed Evidence
      A prosecutor may be motivated to engage in improper coaching to prevent the revelation of material information that the prosecutor did not disclose to the defense as required by due process. [FN40] Needless to say, a prosecutor who is predisposed to violate his constitutional and ethical obligation to disclose favorable evidence to a defendant is also capable of molding her witness's testimony to protect the nondisclosure from being *838 discovered. [FN41] Indeed, it is arguable that every case in which a prosecutor deliberately conceals exculpatory evidence from the defense may also involve an effort by the prosecutor to coach the witness's testimony to hide the suppression.
      In Walker v. City of New York, [FN42] for example, a prosecutor almost certainly coached a cooperating witness to give false testimony to conceal from the defense information that would have undermined the witness's credibility. Walker describes a prosecutor's debriefing and preparation of a cooperating witness in an investigation of the robbery of an armored truck and murder of the truck driver. At the initial proffer session, the witness identified two individuals as having participated in the crime. The prosecutor subsequently learned, however, that one of these alleged accomplices could not have committed the crime because he was in prison on the date of the robbery. Undeterred, the prosecutor elicited testimony from the cooperator in the grand jury and at trial that did not mention a second accomplice. The decision by the Second Circuit condemned the prosecutor's failure to disclose the inconsistency. The court did not discuss the reason for the witness's failure to mention the existence of a second perpetrator, an omission that undoubtedly resulted from careful coaching by the prosecutor. [FN43]
B. Cognitive Factors Facilitating Coaching
1. Memory
      An extensive body of scientific literature holds that memory is highly fallible, and the process of memory retrieval and reconstruction extremely fragile. [FN44] The perception of an event *839 typically does not leave a single, clear image; it is heavily influenced by a variety of factors, including the manner in which the memory is sought to be retrieved. [FN45] Many studies describe the distorting effects of suggestive questioning. [FN46] Whereas witness preparation certainly can assist a witness in remembering and retrieving a truthful recollection, preparation also can distort a witness's underlying memory and produce a false recollection. [FN47] And because of the complex nature of memory, it may be difficult for the witness himself to distinguish between a genuine recollection of a previously unrecalled fact, and an imagined recollection based on suggestions from the interviewer. [FN48]
      Many prosecutors do not appreciate the dangers associated with retrieving a memory of an event. [FN49] A prosecutor, through the use of questions and suggestions has the ability to influence a witness to remember facts and fill gaps that may be inaccurate, but which the witness may come to believe is the truth. [FN50] In addition, because of the prosecutor's unique status as the attorney for the government, she ordinarily is viewed by the witness as a highly *840 knowledgeable official who can be trusted to use the facts responsibly. [FN51] Indeed, because of the prosecutor's power and prestige, the witness may try to conform his recollection of the event to what the witness believes the prosecutor wants to hear. [FN52]
      Experts and courts recognize that facts are slippery, and the process of memory retrieval can be treacherous. [FN53] As Justice Stevens noted in Nix v. Whiteside, [FN54] “facts” often are highly ambiguous and uncertain. To an appellate court after a case has been tried and the evidence sifted by others,
       a particular fact may be as clear and certain as a piece of crystal or a small diamond.  A trial lawyer, however, must often deal with mixtures of clay and sand.  Even a pebble that seems clear enough at first glance may take on a different hue in a handful of gravel. [FN55]

      And to experts who have studied the psychology of human memory, a witness's recollection of an event is a delicate amalgam that is retrieved, reconstructed, or imagined from this combination of clay, sand, and gravel. [FN56]

      The potential for witness coaching by prosecutors and police to alter memory is powerfully illustrated in the Supreme Court's decision in Strickler v. Greene. [FN57] In Strickler, a capital murder trial, a key prosecution witness, Anne Stolzfus, initially told police that she had only “muddled memories” about a kidnapping in a mall, and could not identify the perpetrators, the victim, or the *841 automobile. [FN58] At trial, however, Stolzfus gave astonishingly detailed testimony about the event. [FN59] She gave a detailed description of all three perpetrators, [FN60] the victim, [FN61] and even remembered the license plate number of the van. [FN62] Denying the suggestion that she had learned these details from news reports, she answered, “I have an exceptionally good memory.” [FN63]
      The process by which Stolzfus' memory improved so remarkably, however, was revealed in a series of documents prepared by a police detective, which were never disclosed to the *842 defense. [FN64] These documents were based on interviews between Detective Claytor and Stolzfus in which her memory continued to expand over time because, she claimed, of “the associations that [Detective Claytor] helped me make.” [FN65] The Supreme Court addressed whether the prosecutor violated his constitutional duty by not disclosing these statements to the defense. The Court found no violation. [FN66] The Court never discussed the other important question, i.e., whether the prosecutor and police encouraged Stolzfus to reconstruct her memory to accord with the government's theory of guilt. [FN67]
2. Language and Communication
      Prosecutors may attempt to fill gaps by asking questions, making statements, or displaying evidence that highlights specific facts. [FN68] Indeed, several former prosecutors found it “disturbing” and “dangerous” that so many prosecutors gave facts to cooperating witnesses in the course of eliciting information from them. [FN69] Moreover, the language used by a prosecutor in communicating those facts to the witness may significantly influence the witness's responses. Experts have shown that using specific words in a question can distort a witness's recollection or recounting of an event. [FN70] For example, asking a witness whether *843 he saw “a” car is much less suggestive than asking the witness whether he saw “the” car. [FN71] Similarly, asking the witness whether a person “smashed” another's face may produce a decidedly different response than asking the witness whether a person “hit” the other person. [FN72]
      Prosecutors have the ability by their choice of language to telegraph to the witness specific facts that the prosecutor wants the witness to say.  For example, when a witness initially is uncertain of the identity of persons who were present at a critical meeting, a prosecutor could properly try to refresh the witness's recollection by asking him whether a named person was present. [FN73] However, if the witness continues to express doubt, a prosecutor who focuses repeatedly on whether that person was present is ultimately going to convey to the witness the prosecutor's expectations and the witness eventually will get the message and say it. [FN74]
      Many prosecutors appear to be unaware of the extent to which they express verbally or non-verbally a genuine interest in certain facts, or communicate disappointment when the witness does not know particular facts, and thereby tip off the witness to what they want him to say. [FN75] Some prosecutors are not subtle about this type of communicative message. A prosecutor, for example, might signal to a cooperating witness, either explicitly or implicitly, that he is not helping himself by omitting certain details. According to several former prosecutors, the witness “somehow now for the first time . . . finds information that helps the government.” [FN76]
      Presuppositions or assumptions in questions also can create a false recollection.  For example, after being intensively questioned by the prosecutor about whether the target of an investigation displayed a gun, the witness might acknowledge that he remembers a gun because the story has become implanted in his mind as a fact, either because he heard about it from others rather than observing it firsthand, or because the prosecutor strongly *844 suggested the fact. [FN77] Asking a witness to retell an event over and over may convince the witness that his story is true. [FN78]
      There are several communicative techniques that interviewers use to shape a witness's testimony. [FN79] Among the most common are asking leading questions, [FN80] showing a witness a document to refresh her recollection, [FN81] informing a witness of what another witness has said about the incident, [FN82] and giving the witness a lecture on the consequences of saying one thing or another. [FN83]
C. Dangerous Witnesses
      Some witnesses are especially vulnerable to coercive or suggestive interviewing techniques.  The most susceptible of these witnesses are (1) children, because of their immaturity and impressionability; (2) identification witnesses, because of the inherent unreliability of eyewitness testimony; and (3) cooperating witnesses, because of their enormous incentives to falsify or embellish.
1. Children
      Some witnesses are especially vulnerable to suggestive interviewing techniques.  A familiar and frequently cited example is the testimony of young children in sexual abuse cases.  Many instances of wrongful convictions are attributable to the testimony of child witnesses. [FN84] Courts have increasingly scrutinized the reliability of the testimony of young children for coercive or *845 suggestive pretrial interviewing techniques. [FN85] For example, in Idaho v. Wright, [FN86] the Supreme Court found that a child's accusation of sexual abuse was based on suggestive and leading questioning by an interrogator who had a preconceived idea of what the child should be disclosing. [FN87] Additionally, courts have also focused on the absence of spontaneous recall, the bias of the interviewer, the use of leading questions, multiple interviews, incessant questioning, vilification of the defendant, ongoing contact with peers and references to their statements, and the use of threats, bribes, and cajoling. [FN88] Courts have also noted the failure to videotape or otherwise document the initial interview session. [FN89]
2. Identification Witnesses
      Identification witnesses are among the most unreliable witnesses. [FN90] As noted above, [FN91] these witnesses may adapt their testimony to what they believe accords with the prosecutor's *846 expectations. Prosecutors may also attempt to “adjust” the testimony of these witnesses to strengthen the probative impact of their identification. [FN92] These witnesses may add facts to their memory that appear to the witness to be an accurate reproduction of what the witness originally perceived. This process of “memory adjustment” is exemplified by the testimony of Ann Stolzfus in Strickler v. Greene, [FN93] and Isaac Smallwood in Kyles v. Whitley. [FN94] This adjustment often involves the testimony of identifying witnesses that the prosecutor knows is factually weak or unreliable, but is presented to the jury with an aura of certainty and confidence. [FN95]
      The testimony of several eyewitnesses in the murder trial of Randall Dale Adams, memorialized in the film documentary The Thin Blue Line, [FN96] offers a dramatic commentary on the dangers of testimony of identification witnesses. Three rebuttal witnesses--Emily Miller, her husband R.L. Miller, and Michael Randall--offered critical testimony identifying Adams as the killer. [FN97] The *847 testimony was given confidently, with some bravado. However, as depicted in the film, these witnesses appeared to have given contrived testimony that probably was the product of coaching by the prosecutor. [FN98] Indeed, these witnesses' subsequent narrations of their accounts of the incident for the camera--a starkly revealing portrait that captures their venality and deception--is a devastating commentary of the artificiality of courtroom testimony and how a prosecutor's apparent coaching produced a terrible miscarriage of justice.
3. Cooperating Witnesses
      The cooperating witness is probably the most dangerous prosecution witness of all.  No other witness has such an extraordinary incentive to lie.  Furthermore, no other witness has the capacity to manipulate, mislead, and deceive his investigative and prosecutorial handlers.  For the prosecutor, the cooperating witness provides the most damaging evidence against a defendant, is capable of lying convincingly, and typically is believed by the jury. [FN99]
       *848 The prosecutor's pretrial coaching of cooperating witnesses is vulnerable to many of the potential abuses noted above. The cooperating witness is (1) easily manipulated by coercive and suggestive interviewing techniques; (2) readily capable of giving false and embellished testimony with the prosecutor's knowledge, acquiescence, indifference, or ignorance; (3) readily capable of creating false impressions by omissions or memory alterations that in the absence of any recordation or documentation eludes disclosure and impeachment; and (4) able to present his testimony to the jury in a truthful and convincing manner, which because of the nature of the cooperation process is difficult to impeach through cross-examination. [FN100]
      A prosecutor has a powerful incentive to accept a cooperator's account uncritically. [FN101] Many prosecutors, if they are candid, will admit that in some cases they really do not know whether the cooperator is being truthful or dishonest. This is particularly the case when a prosecutor lacks evidence to corroborate the cooperator's account. Moreover, some prosecutors have a predetermined view of the facts of a case that constrains their ability or willingness to assess the cooperator's credibility objectively. They may have a theory of the case that they developed from other evidence or from reliance on the opinion of the case agent. These prosecutors believe that theory to be true, and to the extent that the cooperator's version is inconsistent with this theory, the prosecutor may conclude that the cooperator is lying or withholding information.
      Cooperators are manipulative, and some prosecutors can be easily manipulated.  Some prosecutors trust their cooperators too *849 much--one former prosecutor described the relationship as “falling in love with your rat”--and this mindset skews the prosecutor's ability to evaluate the cooperator's credibility objectively. These prosecutors may neglect to probe the cooperator's story or background intensively to uncover inconsistencies or outright lies. A recent illustration is United States v. Wallach, [FN102] in which a key cooperating witness, Anthony Guariglia, gave perjured testimony about his gambling habits that the prosecutors could easily have checked but did not. [FN103]
      Moreover, some prosecutors have a cramped view of their ethical duty as ministers of justice.  They believe that serving justice means getting convictions and putting bad people in jail. [FN104] This mindset may be particularly noticeable with younger prosecutors, whose experience is confined to administering the federal sentencing guidelines. These prosecutors have been described as “Guidelines babies.” [FN105] They often exhibit a “mechanistic” and “hardened” view of justice. [FN106] They perceive themselves as cops, and exude a “macho” persona wherein “[t]hey don't ask what's the right thing to do. They just want the right result.” [FN107]
      Cooperators appreciate that their value depends on giving the prosecutor “what they want to hear.” [FN108] This message is “drummed into defendants at the MCC (Metropolitan Correction Center) that you have got to have good information for the government.” [FN109] Many professional participants in federal criminal practice believe that the Federal Sentencing Guidelines, particularly by their ability to confer unprecedented and enormous rewards on cooperators who provide law enforcement with “substantial assistance,” create *850 a powerful incentive for cooperators to exaggerate and falsify information. [FN110]
      Moreover, some cooperators may not even appreciate the difference between truth and untruth.  Cooperators frequently come from alien environments of crime and deceit that produce a mindset, according to some prosecutors, that “[t]ruth equals what I know or what I can be caught at.” [FN111] Cooperators do not share the prosecutor's “obsession with exact facts.” [FN112] They use language in a loose, non-literal fashion that allows them to make false or exaggerated assertions that they might believe to be true. They might assume, for example, that if they have knowledge of certain information, it is immaterial how they came to learn it, whether through personal observation or based on what they may have heard. [FN113]
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