23 Cardozo L. Rev. 829 Cardozo Law Review



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[FN135]. See supra note 110.
[FN136]. For an excellent text used in law school courses on interviewing and counseling, see Robert M. Bastress & Joseph D. Harbaugh, Interviewing, Counseling, and Negotiating (1990). This book broadly instructs on interviewing skills, verbal and nonverbal communication techniques, probing skills, and psychological and psychosocial influences on communication.
[FN137]. See supra note 11.
[FN138]. Of course, no prosecutor ever really knows whether her witness is being truthful. It is important, however, to instruct the witness when necessary, and emphasize repeatedly, the importance of telling the truth. A prosecutor should explain to the witness that from a moral perspective, the oath that the witness takes requires truthful testimony, the witness may be convicted of perjury or obstruction of justice for giving untruthful testimony, and the exposure of the witness to cross-examination will render an attempt to conceal the truth difficult.

              The extent to which a defense attorney is allowed to present untruthful testimony of the defendant is beyond the scope of this Article.  See, e.g., Nix v. Whiteside, 475 U.S. 157 (1986) (finding that a defense lawyer did not provide ineffective assistance by refusing to cooperate in client's perjury).


[FN139]. See Patricia J. Kerrigan, Witness Preparation, 1999 Tex. Tech L. Rev. 1367, 1380 (“Let the witness know that a jury may find it more credible for a witness not to remember an incident from the past than to seem to have perfect recall of everything.”).
[FN140]. See Bastress & Harbaugh, supra note 136, at 157; Wydick, supra note 5, at 42-43.
[FN141]. The extent to which an attorney is permitted to orient a witness on the applicable law, or the attorney's theory of the case, prior to hearing the witness's initial recollection, is unclear. Compare Monroe H. Freedman, Counseling the Client: Refreshing Recollection or Prompting Perjury?, Litig., Spring 1976 (suggesting that such conduct is unethical), with In re Petroleum Products Antitrust Litigation, 502 F. Supp. 1092, 1097 (C.D. Cal. 1980) (“[I]t is fully appropriate for defense counsel to refresh the recollection of the witness as to the facts, familiarize him with the relevant documents, and cause him to understand fully the company's views and attitudes concerning the litigation.”).
[FN142]. See Carslon & Imwinkelried, supra note 11, at 183 (suggesting that a lawyer show the witness the courtroom, observe some testimony, and if the courtroom is vacant put the witness on the stand to get a “perspective” and “feel” of the witness stand); Flowers, supra note 2, at 745 (explaining that it is appropriate to describe the courtroom and where everyone will be seated, and to take the witness to the courtroom to observe the layout); Altman, supra note 33, at 42 (stating that it is appropriate to instruct a witness on the basic rules of effective testimony).
[FN143]. See United States v. Oreto, 37 F.3d 739, 745 (1st Cir. 1994) (noting that it is improper for a prosecutor to advise an identification witness as to where defendant will be seated).
[FN144]. See David Ball, Theater Tips and Strategies for Jury Trials 28-30 (1994) (describing general behavioral suggestions for witnesses); James W. Mcelhaney, Trial Notebook 51-54 (3d ed. 1994) (same).
[FN145]. It is generally appropriate for lawyers to advise witnesses about how to dress and give suggestions on demeanor. See Carlson & Imwinkelried, supra note 11, at 183 (noting that some attorneys routinely videotape practice sessions and review them with witnesses to avoid negative mannerisms and promote a positive, confident demeanor); Thomas A. Mauet, Trial Techniques 475 (4th ed. 1996); Ball, supra note 144, at 323; Mcelhaney, supra note 144, at 51; J. Alexander Tanford, The Trial Process: Law, Tactics and Ethics 262 (1993). The extent to which the prohibition of falsification of testimony includes an attempt by an attorney to alter a witness's demeanor is unclear. See Piorkowski, supra note 13, at 404-05 (describing an attempt by a prosecutor to encourage the identification witness to appear confident as misconduct when the witness is only 51 percent certain that defendant was the perpetrator).
[FN146]. See Carlson & Imwinkelried, supra note 11, at 182 (recommending that attorney conduct a practice session consisting of mock direct and cross-examination).
[FN147]. See Altman, supra note 33, at 43 (citing Haworth v. State, 840 P.2d 912, 913-14, n.3) (“[T]here is nothing unethical about an attorney making suggestions about the witness's wording as long as those suggestions do not encourage what the attorney knows or reasonably believes is false or misleading testimony.”).
[FN148]. Courts and commentators suggest that there is nothing inherently wrong with attempting, even aggressively, to change a witness's initial version of the facts when the attorney believes that the version is inaccurate or incomplete. See Resolution Trust Corp. v. Bright, 6 F.3d 336, 341 (5th Cir. 1993). It is one thing to ask a witness to swear to facts which are knowingly false. It is another thing, in an arms-length interview with a witness, for an attorney to attempt to persuade her, even aggressively, that her initial version of a certain fact situation is not complete or accurate. Altman, supra note 33, at 41 (arguing that it is appropriate for an attorney to aggressively question a witness “to challenge the witness's initial recollection to persuade the witness that it is untrue and, therefore, should be changed”). But see 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.”).
[FN149]. See Miller, supra note 46, at 12 (“Where questions are asked, how they are prefaced, suggestions in the wording, and the content of follow-up questions may do more to determine what is retrieved than anything that occurred previously.”) But see Altman, supra note 33, at 42 (arguing that it is appropriate to “challenge” a witness's interpretation of facts and this “offers the witness the opportunity to modify her characterization to make it more truthful”).
[FN150]. But see Kerrigan, supra note 139, at 1379 (“Have the witness review any prior depositions they have given, discovery responses they have signed, or prior statements they have given, and consider having the witness review other relevant testimony and discovery responses.”).
[FN151]. See Carlson & Imwinkelried, supra note 11, at 182-83 (recommending that another attorney conduct the cross because “if you conduct cross and the cross is too ‘effective,’ the experience may impair your working relationship with the witness”).
[FN152]. See Altman, supra note 33, at 43 (explaining that it is proper to instruct the witness to testify to lack of memory if the witness honestly does not remember). However, the witness should be advised that an “I don't remember” may be perjurious. See United States v. Barnhart, 889 F.2d 1374 (5th Cir. 1989). In addition, an attorney may be suborning perjury if he counsels or suggests that a witness can safely profess ignorance even if the witness can remember the event. See, e.g., Sheriff v. Hecht, 710 P.2d 728 (Nev. 1985). Moreover, instructing a witness to answer only the question asked and not volunteer answers may be unethical if the strategy is designed to conceal relevant information. See, e.g., United States v. Ebens, 800 F.2d 1422, 1443 (6th Cir. 1986) (attorney instructs witness to avoid volunteering anything about a relevant conversation by answering the cross-examiner's question “[W]hat happened next?” with anything that happened next other than the conversation).
[FN153]. See Altman, supra note 33, at 42 (“Rehearsing a witness's testimony is a well-established professional practice.”).
[FN154]. See Manson v. Brathwaite, 432 U.S. 98 (1977).
[FN155]. See State v. Michaels, 642 A.2d 1372 (N.J. 1994).
[FN156]. See People v. Hughes, 453 N.E.2d 484 (N.Y. 1983).
[FN157]. See State v. Gookins, 637 A.2d 1255 (N.J. 1994).
[FN158]. See Jackson v. Denno, 378 U.S. 368 (1977).
[FN159]. Experts have been allowed to testify to psychological factors affecting the reliability of a witness's identification. See generally United States v. Stevens, 935 F.2d 1380 (3d Cir. 1991); United States v. Smith, 736 F.2d 1103 (6th Cir. 1984); United States v. Norwood, 939 F. Supp 1132 (D.N.J. 1996); Campbell v. People, 814 P.2d 1 (Colo. 1991); People v. McDonald, 690 P.2d 709 (Cal. 1984); State v. Chapple, 660 P.2d 1208 (Ariz. 1983). For example, experts have testified regarding a defendant's susceptibility to government inducements to prove entrapment by showing lack of predisposition. See United States v. Newman, 849 F.2d 156 (5th Cir. 1988); United States v. McLernon, 746 F.2d 1098 (6th Cir. 1984); United States v. Hill, 655 F.2d 512 (3d Cir. 1981). Experts have also testified about the risk of false memory implantation on young children from improper interviewing techniques. See State v. Sargent, 738 A.2d 351 (N.H. 1999). Finally, experts have testified on the reliability of a defendant's confession from coercive police interviewing techniques. See United States v. Hall, 974 F. Supp. 1198 (C.D. Ill. 1997).
[FN160]. Rule 702 states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” Fed. R. Evid. 702.
[FN161]. See supra note 159.
[FN162]. See supra notes 44-83 and accompanying text.
[FN163]. See Miller, supra note 46, at 15-16.
[FN164]. See id.
[FN165]. See supra note 89 and accompanying text.
[FN166]. Two states, Minnesota and Alaska, require that police interrogations of suspects be recorded on tape. See State v. Scales, 518 N.W.2d 587, 589 (Minn. 1994) (“In the exercise of our supervisory powers we mandate a recording requirement for all custodial interrogations.”); Stephan v. State, 711 P.2d 1156, 1158 (Alaska 1985) (“Today, we hold that an unexcused failure to electronically record a custodial interrogation conducted in a place of detention violates a suspect's right to due process, under the Alaska Constitution, and that any statement thus obtained is generally inadmissible.”).
[FN167]. See Rock v. Arkansas, 483 U.S. 44, 60 (1987) (“Tape or video recording of all interrogations, before, during, and after hypnosis, can help reveal if leading questions were asked.”).
23 Cardozo L. Rev. 829
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