witness-prep-ethics

# Witness Preparation Ethics Boundaries

Defines lawful witness preparation boundaries and compliance workflow under ABA guidance and Model Rules. Core principle: preparation is expected, but truth is the touchstone—genuine recollection must be preserved.

## Prerequisites

1. Jurisdiction and governing ethics rules (state bar, local court orders).
2. Witness type and setting (fact or expert; deposition, hearing, trial).
3. Core materials: pleadings, key documents, prior statements, discovery responses.
4. Any in-court communication limits (Geders, Perry).

## Authority Baseline

| Source | Constraint |
|---|---|
| Model Rule 3.3 | No false evidence or testimony (candor to tribunal) |
| Model Rule 3.4 | No falsifying evidence or counseling false testimony |
| Model Rule 8.4 | No dishonesty, fraud, deceit, misrepresentation |
| ABA Formal Op. 508 (2023) | Preparation expected but must preserve genuine recollection |
| Restatement (Third) Law Governing Lawyers §116 | Preparation allowed; no coaching to fabricate or alter |
| Local ethics opinions | Follow stricter local rule when applicable |

## Permissible vs. Prohibited

| Area | Permissible | Prohibited |
|---|---|---|
| Procedure | Explain mechanics, oath, objections, transcript | — |
| Documents | Review to refresh recollection | Use documents to override memory |
| Recollection | Ask what witness remembers; test basis and confidence | Supply facts or fill gaps |
| Legal relevance | Explain claims and why topics matter | Instruct how to shape testimony |
| Anticipated topics | Identify likely areas; practice Q&A | Provide preferred answers |
| Expression | Suggest clearer wording; avoid jargon | Change substance by rephrasing |
| Demeanor | Advise calm, listen fully, ask for clarification | — |
| Coordination | Prepare witnesses separately | Align stories across witnesses |

## Session Workflow

1. State purpose: truthful, complete testimony is required.
2. Cover procedure and demeanor guidance.
3. Review documents to refresh memory, then test recollection.
4. Elicit narrative in witness's own words.
5. Practice anticipated topics with neutral prompts.
6. Correct clarity issues without changing substance.
7. Run ethics checklist; obtain witness confirmation.

## Unfavorable Recollection Protocol

**Required:** Accept recollection as stated. Advise truthful testimony. Adjust case strategy.

**Allowed:** Explore basis and confidence level. Check for question misunderstanding. Review documents to test memory without pressure.

**Forbidden:** Pressure to change truthful recollection. Suggest recollection is wrong because harmful. Coach to minimize or hide unfavorable facts.

## Gray-Area Tests

- After document review, does witness have present recollection or only adoption of the document?
- Are you clarifying expression without changing substance?
- Are you explaining legal relevance without instructing how to answer?
- Would you be comfortable with the prep transcript before a disciplinary committee?

## Ethics Checklist

Permissible:
- [ ] Explain procedure and roles
- [ ] Review documents to refresh memory
- [ ] Ask witness to describe recollection
- [ ] Explain legal significance of topics
- [ ] Identify anticipated topics and practice questions
- [ ] Suggest clearer expression of witness's own recollection
- [ ] Advise on demeanor and non-substantive behavior

Prohibited:
- [ ] Suggest facts the witness does not recall
- [ ] Tell the witness what happened
- [ ] Coach false or misleading testimony
- [ ] Share other witnesses' testimony to align stories
- [ ] Pressure witness to change truthful testimony
- [ ] Use documents to override genuine recollection

## Neutral Prompt Templates

```text
"Tell me what you remember about [event]."
"What is the basis for that memory?"
"Does this document refresh your recollection, or are you relying only on what it says?"
"Please answer in your own words, even if the answer is not helpful to our case."
"If you do not know or do not recall, say so."
```

## Guidelines

- Apply the stricter rule when state or local guidance is more restrictive.
- Never show or summarize other witnesses' testimony to a witness.
- If you know testimony is false, follow Model Rule 3.3 remediation duties.
- Document preparation steps to show compliance if challenged.

## Cross-References

- `deposition-witness-prep-session`
- `deposition-deponent-coaching`
- `deposition-preparation`