23 Cardozo L. Rev. 829 Cardozo Law Review



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[FN7]. See infra notes 127-35 and accompanying text.
[FN8]. See Applegate, supra note 1, at 279 (“Even though witness preparation occurs in practically every lawsuit, it is almost never taught in law school, not directly regulated, seldom discussed in scholarly literature, and rarely litigated.”).
[FN9]. See e.g., State v. McCormick, 259 S.E.2d 880 (N.C. 1979):

              It is not improper for an attorney to prepare his witness for trial, to explain the applicable law in any given situation and to go over before trial the attorney's questions and the witness' answers so that the witness will be ready for his appearance in court, will be more at ease because he knows what to expect, and will give his testimony in the most effective manner that he can.  Such preparation is the mark of a good trial lawyer.

Id at. 882-83; see also Earp, 571 A.2d at 1227:               The question of just how far an attorney may go in preparing a witness for trial is a difficult one.  It involves ethical considerations as well as the possibility of tainting a witness to the extent that due process and the necessity for reliable evidence may justify the exclusion of that witness's testimony.

Id. at 1234.

[FN10]. D.C. Bar Op. No. 79 (Dec. 18, 1979), reprinted in District of Columbia Bar, Code of Professional Responsibility and Opinions of the District of Columbia Bar Legal Ethics Committee 138, 139 (1991), stating:

              [A] lawyer may not prepare, or assist in preparing, testimony that he or she knows, or ought to know, is false or misleading.  So long as this prohibition is not transgressed, a lawyer may properly suggest language as well as the substance of testimony, and may--indeed, should--do whatever is feasible to prepare his or her witness for examination.


[FN11]. See, e.g., Jeffrey L. Kestler, Questioning Techniques And Tactics, §§ 9:01-9:85 (3d ed. 1999); Roberto Aron & Jonathan L. Rosner, How to Prepare Witnesses for Trial (2d ed. 1998); Daniel I. Small, Preparing Witnesses: A Practical Guide for Lawyers and Their Clients (1998); Ronald L. Carlson & Edward J. Imwinkelried, Dynamics of Trial Practice § 9.4, at 181-83 (2d ed. 1995).
[FN12]. See infra notes 136-53 and accompanying text.
[FN13]. See Fred C. Zacharias & Shaun Martin, Coaching Witnesses, 87 Ky. L.J. 1001 (1998-99); Wydick, supra note 5; Applegate, supra note 1; Joseph D. Piorkowski, Professional Conduct and the Preparation of Witnesses for Trial: Defining the Acceptable Limitations of ‘Coaching’, 1 Geo. J. Legal Ethics 389 (1987).
[FN14]. Probably the most famous dramatization of witness coaching is the “lecture” in the novel, Anatomy of a Murder. See Robert Travers, Anatomy of a Murder (1958) (depicting a defense attorney who outlines for his client four possible defenses to a charge of murder, rejects three of them as inapplicable, but suggests, hypothetically, that a legal excuse might be available for a killing committed in a blind rage. He then terminates the interview, instructing his client to think about the incident). For references to coaching in the film, The Verdict, and the television series, L.A. Law, see Zacharias & Martin, supra note 13, at 1002-03.
[FN15]. But see Flowers, supra note 2, at 739-66. A highly effective dramatization of prosecutorial coaching is depicted in the television series, The Practice. A defendant is being prosecuted for murdering his wife. His defense is suicide, and circumstantial evidence strongly supports the defense. During a pretrial interview with the brother of the deceased, who believes the defendant killed his sister, the prosecutor suggests that the witness can strengthen the prosecution's case, and then “lectures” the brother on the hearsay rule, and the admissibility of statements of a present state of mind. The brother picks up on the prosecutor's obvious cue, and subsequently testifies to several devastating statements that he claims his sister made shortly before her death, describing her strong will to live, and suggesting that if anything happens to her, her husband is the cause. See The Practice (ABC television broadcast, Oct. 8, 2000).
[FN16]. For recent decisions finding that prosecutors suborned perjury, see Boyette v. Lefevre, 246 F.3d 76 (2d Cir. 2001); Commonwealth of Northern Mariana v. Bowie, 243 F.3d 1109 (9th Cir. 2001); United States v. LaPage, 231 F.3d 488 (9th Cir. 2000). For Congressional actions imposing ethical and civil liabilities on prosecutors, see 28 U.S.C. § 530B (1994) (codifying the “Citizens Protection Act,” mandating that federal prosecutors comply with state rules of professional ethics); 18 U.S.C. § 3006A (1994) (codifying the “Hyde Amendment,” imposing monetary costs on federal prosecutors for bad faith conduct). For commentary in the media, see Robyn E. Blumner, Prosecutors Should Rethink Their Goals, St. Petersburg Times, May 6, 2001, at 1D; Ken Armstrong & Maurice Possley, Trial & Error: How Prosecutors Sacrifice Justice to Win, Chi. Trib., Jan. 10, 1999, at 3; Bill Moushey, Win at All Costs: Government Misconduct in the Name of Expedient Justice, Pittsburgh Post Gazette, Nov. 22, 1998, at 1.
[FN17]. See James Liebman et al., A Broken System: Error Rates in Capital Cases, 1973-1995, at 5 (2000) (discussing a massive study of every capital punishment case in the U.S. between 1973-1995 and documenting that the overall error rate in capital punishment system was 68 percent, and that 82 percent of all capital judgments reversed on appeal (247 out of 301) were replaced on retrial with a sentence less than death, or no sentence at all); Jim Dwyer et al., Actual Innocence (2000) (offering a compendium of anecdotal accounts, and legal and social science scholarship, of miscarriages of justice in American criminal trials); Death Penalty Information Center, The Death Penalty in 1999, Year End Report, at 1 (2000) (84 inmates on Death Row exonerated since 1973); Nat'l Inst. of Justice, U.S. Dep't of Justice, Recommendations for Handling Applications for Postconviction DNA Testing, at 7 (Feb. 1999) (draft report) (“[A]t least 55 convictions in the United states have been vacated on the basis of DNA results.”); Nat'l Inst. of Justice, U.S. Dep't of Justice, Convicted by Juries, Exonerated by Science: Case Studies in the Use of DNA Evidence to Establish Innocence After Trial (1996) (evaluating twenty-eight cases in which DNA evidence established post-trial innocence); Hugo Adam Bedau & Michael L. Radelet, Miscarriages of Justice in Potentially Capital Cases, 40 Stan. L. Rev. 21, 36, 71 (1987) (claiming that more than 350 people in this century have been erroneously convicted in the U.S. of crimes punishable by death; 116 of those were sentenced to death and 23 were actually executed); Alan Berlow, The Wrong Man, Atlantic Monthly, Nov. 1999, at 68 (“[S]urely the number of innocent people discovered and freed from prison is only a small fraction of those still incarcerated.”); Arye Rattner, Convicted but Innocent: Wrongful Conviction and the Criminal Justice System, 12 Law & Hum. Behav. 283, 289-92 (1988) (explaining that a study of more than 200 felony cases of wrongful conviction found misidentification to be the single largest source of error, accounting for more than half of cases that had one main cause); Marty I. Rosenbaum, Inevitable Error: Wrongful New York State Homicide Convictions, 1965-1988, 18 N.Y.U. Rev. L. & Soc. Change 807, 809 (1991) (claiming that New York State leads all states in executing the innocent, evidenced by the fact that eight New Yorkers have been executed in error).
[FN18]. See Liebman et al., supra note 17, at 5 (noting that incompetent defense lawyering accounted for 37 percent of the state post-conviction reversals of capital cases; prosecutorial misconduct accounted for 16-19 percent of all reversals).
[FN19]. See Frampton, supra note 5, at 33 (describing witness preparation by prosecutor and government witness as a one-on-one process with no records kept). Although this Article focuses primarily on the prosecutor's pretrial interaction with government witnesses, it is common knowledge that other law enforcement officials such as federal agents and state and local police officers play a critical role in influencing the witness's testimony through interviewing and debriefing the witness during the early stages of an investigation. Prosecutors have a constitutional duty to familiarize themselves with police encounters with witnesses, and to obtain from police all relevant information. See Kyles v. Whitley, 514 U.S. 419, 437 (1995) ( “[T]he individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police.”). Thus, any falsification, concealment, or manipulation by police of information pertaining to statements by witnesses is attributable constitutionally to the prosecutor.
[FN20]. See Wydick, supra note 5, at 25 (describing covert methods lawyers can employ to induce a witness to give false testimony).
[FN21]. See infra notes 44-67 and accompanying text.
[FN22]. See infra notes 68-83 and accompanying text.
[FN23]. See infra notes 84-113 and accompanying text.
[FN24]. 514 U.S. 419 (1995).
[FN25]. Id. at 442-43.
[FN26]. Id. at 444.
[FN27]. See id. at 443. Smallwood's statement, taken at the parking lot, claimed that he had not seen the actual murder and had not seen the assailant outside the vehicle. “I heard a lound [sic] pop .... When I looked around I saw a lady laying on the ground, and there was a red car coming toward me.” Id. When a police investigator specifically asked Smallwood whether he had seen the assailant outside the car, Smallwood answered that he had not; the gunman “was already in the car and coming toward me.” Id. Smallwood described the killer as a black teenage male with a mustache and shoulder length braided hair. Kyles had no mustache and wore his hair in a “bush” style. Id. at 443.
[FN28]. “In this case, disclosure of the suppressed evidence to competent counsel would have made a different result reasonably probable.” Id. at 441.
[FN29]. The struggle and shooting, which earlier he had not seen, he was able to describe with such detailed clarity as to identify the murder weapon as a small black .32-caliber pistol, which, of course, was the type of weapon used. His description of the victim's car had gone from a “Thunderbird” to an “LTD”; and he saw fit to say nothing about the assailant's shoulder-length hair and mustache, details noted by no other eyewitness. Id. at 443.
[FN30]. “The implication of coaching would have been complemented by the fact that Smallwood's testimony at the second trial was much more precise and incriminating than his testimony at the first, which produced a hung jury.” Id. at 443 n.14.
[FN31]. See Randolph N. Jonakait, The Ethical Prosecutor's Misconduct, 23 Crim. L. Bull. 550, 559 (1987) (“The natural inclination is not to see inconsistent or contradictory evidence for what it is, but to categorize it as irrelevant or a petty incongruity.”); Ellen Yaroshefsky, Cooperation with Federal Prosecutors: Experiences of Truth Telling and Embellishment, 68 Fordham L. Rev. 917, 945 (1999) (“Prosecutors are convinced they have the guilty guy, then they go about seeking to convict and do not carefully look at things that are funny about their case.”). See also Applegate, supra note 1, at 328 (“[A] major incentive for trial preparation is to obtain support for an uncertain version of the facts and not to confirm a version of the facts that appears to represent the whole truth.”).
[FN32]. See Yaroshefsky, supra note 31, at 959.
[FN33]. See James M. Altman, Witness Preparation Conflicts, Litig., Fall 1995, at 38, 43 (“[W]itnesses often receive instructions that, if true, ‘I do not recall’ is a perfectly proper--indeed, an optimal--response to opposing counsel's thorny questions. Sometimes witnesses translate this advice, when coupled with an attorney's other statements, into a suggestion that harmful facts should not be remembered.”); Christopher T. Lutz, Fudging and Forgetting, Litig., Spring 1993, at 10, 11 (describing advice on lack of memory as an “all-purpose life preserver” that attorneys provide to their witnesses).
[FN34]. Literally truthful testimony is not perjurious, even if it is misleading or evasive. See Bronston v. United States, 409 U.S. 352 (1973). However, a false claim of lack of memory may result in a perjury conviction. See United States v. Barnhart, 889 F.2d 1374, 1376-80 (5th Cir. 1989) (upholding a perjury conviction for witness's testimony before a grand jury claiming lack of memory when corporate official instructed him to “get dumb” when testifying on certain matters); Sheriff, Clark County v. Hecht, 710 P.2d 728 (Nev. 1985) (upholding a charge of subornation of perjury for witness's testimony, pursuant to attorney's instructions, that he did not remember).
[FN35]. See Altman, supra note 33, at 43 (arguing that instructing a witness not to volunteer information, and to answer only the question asked, “can become part of a general strategy of concealment and evasion”).
[FN36]. 355 U.S. 28 (1957).
[FN37]. Id. at 30.
[FN38]. Id. at 31.
[FN39]. The prosecutor questioned the witness as follows:

              Q.  Natividad [Castilleja], were you in love with Herlinda [defendant's wife]?

              A.  No.

              Q.  Was she in love with you?

              A.  No.

              Q.  Had you ever talked about love?

              A.  No.

              Q.  Had you ever had any dates with her other than to take her home?

              A.  No.  Well, just when I brought her from there.

              Q.  Just when you brought her from work?

              A.  Yes. Id. at 30.
[FN40]. See Brady v. Maryland, 373 U.S. 83, 87 (1963) (“We now hold that suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.”).
[FN41]. For examples of two recent Supreme Court cases suggesting that a prosecutor engaged in improper coaching in order to protect from disclosure his concealment of exculpatory evidence, see Strickler v. Greene, 527 U.S. 263 (1999); Kyles v. Whitley, 514 U.S. 419 (1995).
[FN42]. 974 F.2d 293 (2d Cir. 1992).
[FN43]. See also Ex parte Adams, 768 S.W.2d 281 (Tex. Crim. App. 1989) (en banc). For a discussion of the apparent coaching of several witnesses with the purpose of concealing exculpatory evidence that the prosecutor had failed to disclose to the defense, see Bennett L. Gershman, Film Review, The Thin Blue Line: Art or Trial in the Fact-Finding Process?, 9 Pace L. Rev. 275 (1989).
[FN44]. There is a large body of psychological literature describing the vulnerability of memory. Several prominent studies include Frederick Charles Bartlett, Remembering: A Study in Experimental and Social Psychology (1997); Elizabeth Loftus & Katherine Ketcham, The Myth of Repressed Memory (1994); Israel Rosenfeld, The Invention of Memory: A New View of the Brain (1988); George A. Talland, Disorders of Memory and Learning (1969). For a collection of recent scholarship on issues related to memory retention, retrieval, and distortion, see Yaroshefsky, supra note 31, at n.174.
[FN45]. See Freedman, supra note 5, at 152-56.
[FN46]. See id. at 152 (“A common misconception about memory is that it is a process of reproducing or retrieving stored information, in the manner of a videotape or a computer. In fact, memory is much more a process of reconstruction.”); Applegate, supra note 1, at 329 (“Memory is not like a phonograph record; the perception of an event does not leave a single, clear imprint that can be replayed precisely and at will.”); Michael Owen Miller, Working with Memory, Litig., Summer 1993, at 10, 11 (noting that memory is not a single mental process but involves three stages of acquisition, retention, and retrieval, each of which may be “enhanced, suppressed, or distorted”).
[FN47]. See Freedman, supra note 5, at 156 (describing the “lawyer's dilemma” as needing to probe a client's memory to learn important facts, but by stressing the importance of particular facts, it may induce a client to “remember” a fact even if it did not occur); Miller, supra note 46, at 12 (explaining that memory retrieval is susceptible to the greatest amount of distortion).
[FN48]. See Mirjan Damaska, Presentation of Evidence and Factfinding Precision, 123 U. Pa. L. Rev. 1083 (1975):

       During the sessions devoted to “coaching,” the future witness is likely to try to adapt himself to expectations mirrored in the interviewer's one-sided attitude. As a consequence, gaps in his memory may even unconsciously be filled out by what he thinks accords with the lawyer's expectations and are in tune with his thesis. Later, in court, these additions to memory images may appear to the witness himself as accurate reproductions of his original perceptions. Id. at 1094.


[FN49]. See Yaroshefsky, supra note 31, at 953 (“Most prosecutors simply do not understand how memory works and the reality of truth.”); Miller, supra note 46, at 11 (“[L]awyers are not memory specialists.”).
[FN50]. See Jerome Frank, Courts on Trial 86 (1950) (describing “inadvertent but innocent witness-coaching” attributable to competitive pressures of adversarial advocacy); Applegate, supra note 1, at 329 (describing that a lawyer's adversarial posture may unintentionally produce testimony that supports the lawyer's version of the facts, and the witness may be unaware that she is being manipulated).
[FN51]. This observation is usually made in connection with a jury's respect for the prosecutor's prestige and expertise, and its confidence in the prosecutor's judgement. See United States v. Young, 470 U.S. 1, 18-19 (1985) (“[P]rosecutor's opinion carries with it the imprimatur of the Government and may induce the jury to trust the Government's judgment rather than its own view of the evidence.”); United States v. Modica, 663 F.2d 1173 (2d Cir. 1981):

       The prosecutor is cloaked with the authority of the United States Government; he stands before the jury as the community's representative.  His remarks are those, not simply of an advocate, but rather of a federal official duty-bound to see that justice is done.... [I]t may be difficult for [the jury] to ignore his views, however biased and baseless they may be. Id. at 1178-79. The same observation, I believe, applies to a non-hostile government witness' perception of the prosecutor's status and expertise.


[FN52]. See Damaska, supra note 48.
[FN53]. See Loftus & Ketcham, supra note 44, at 169 (describing how memory “grows,” rather than “fades,” because “every time we recall an event we must reconstruct the memory, and so each time it is changed--colored by succeeding events, increased understanding, a new context, suggestions by others, other people's recollections.”); Kyles v. Whitley, 514 U.S. 419, 444 (1995) ( “[T]he evolution over time of a given eyewitness's description can be fatal to its reliability.”).
[FN54]. 475 U.S. 157, 190 (1986) (concurring opinion).
[FN55]. Id.
[FN56]. See supra note 44 for a list of prominent studies on this topic.
[FN57]. 527 U.S. 263 (1999).
[FN58]. Stolzfus first spoke to the police two weeks after the crime, a few days after discussing the incident with classmates at James Madison University, where both she and the victim, Leanne Whitlock, were students. See id. at 270. According to notes of this first interview (Exhibit 1), Stolzfus told Detective Claytor that she could not identify the black female victim, nor the two white male perpetrators, but could identify the white female perpetrator. See id. at 274. In a letter written to Detective Claytor three days later (Exhibit 4), Stolzfus states, “that she had not remembered being at the mall, but that her daughter had helped jog her memory.” Id. She wrote: “I have a very vague memory that I'm not sure of.” Id. In another note to Claytor (Exhibit 5), Stolzfus described “the car,” but did not mention the license plate number. In another letter to Claytor (Exhibit 7), Stolzfus thanked Claytor for his “patience with my sometimes muddled memories.” Id. In another note (Exhibit 8), Stolzfus commented that “I totally wrote this off as a trivial episode of college kids carrying on and proceeded with my own full-time college load.” Id. at 275.
[FN59]. She testified to seeing the perpetrators earlier in a music store, described their appearance and behavior in detail, thought they looked “revved up” and “very impatient,” bumped into one of them, and thought she felt something hard in the pocket of his coat. See id. at 271. She left the store, but again encountered the threesome, one of whom bumped into Stolzfus and asked directions to the bus stop. Stolzfus tried to follow them “because of her concern about petitioner's behavior,” but “lost him.” Id. She later saw the petitioner “tearing out of the mall entrance door and went up to the driver of the van.” Id. He “pounded on” the passenger window, “shook the car, yanked the door open, and jumped in.” Id. The victim started blowing her horn a long time, and petitioner “started hitting her.” Id. at 272. And he “started hitting her on the head and I was, I just became concerned and upset.” Id. Stolzfus pulled up alongside the other car; the driver looked “frozen” and “mouthed an inaudible response.” Id. Stozfus started to drive away and then realized “the only word that it could possibly be, was help.” Id.
[FN60]. Stolzfus testified that Strickler wore a grey T-shirt with a Harley Davidson insignia on it, and had “a kind of multi-layer look.” Id. at 270 n.5. Co-defendant Henderson “had either a white or light colored shirt, probably a short sleeve knit shirt and his pants were neat. They weren't just old blue jeans. They may have been new blue jeans or it may have been more dressy slacks of some sort.” The woman “had blonde hair, it was kind of in a shaggy cut down the back. She had blue eyes, she had a real sweet smile, kind of a small mouth. Just a touch of freckles on her face.” Id.
[FN61]. She testified that this woman was “beautiful ... well dressed and she was happy, she was singing.” Id. at 271.
[FN62]. Stolzfus stated that the license plate was West Virginia, NKA 243, which she remembered instructing her daughter to write down, and said she was able to remember the number because she used the phrase, “No Kids Alone” and “I said 243 is my age.” Id. at 272 n.7.
[FN63]. Id. at 272. Stolzfus added that “I had very close contact with [petitioner] and he made an emotional impression with me because of his behavior and I, he caught my attention and I paid attention.” Id. at 272-73.
[FN64]. Of the eight documents either prepared by Claytor or received by him from Stolzfus, it is undisputed that at least five of those documents “were known to the State but not disclosed to trial counsel.” Id. at 282. It is unclear whether the prosecuting attorney knew about some or all of these documents at the time he proceeded to trial. He claimed that he never saw five of the exhibits until long after trial, and that they were not in the file he made available to petitioner. Id. at 275. The prosecutor claimed that three of the exhibits had been in his open file, but defense counsel maintained otherwise. Id. at 275 n.11.
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