Standards for Witness Preparation - Australia
Witness Preparation Consultants recognise that witness preparation involves the art and science of interpersonal communication, and therefore our professional approaches will take many different forms.
For the purposes of these Professional Standards and Practice Guidelines, witness preparation refers to the assistance witness preparation consultants provide the barrister, instructing solicitor, or other clients in their effort to increase witnesses’ understanding, comfort and confidence in the process of giving evidence in the Australian Family Court jurisdiction, improving their ability to give cogent evidence, improve their conduct within court and improve their understanding of what is occurring around them. Giving evidence is a nerve-wracking experience for most people and very few are prepared for the rigours of cross-examination. Being in the witness box is the crucial time. The evidence given is weighed by the judge and how a witness answers questions, sits in the witness box, engages with opposing counsel and the Judge, all present a narrative to the Judge.
Coaching of witnesses with regards to their answers is prohibited. Witness preparation consultants comply with relevant sections of the Victorian Bar Incorporated Practice Rules;[1]
44)
45)
A barrister will not have breached Rule 44 by expressing a general admonition to tell the truth or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not coach or encourage the witness to give evidence different from the evidence which the witness believes to be true.
Similarly, the Victorian Bar Good Conduct Guide[2] lays out these responsibilities;
Clients and Witnesses
3.29 The court relies upon counsel to deal fairly with witnesses, the vast majority of whom are unfamiliar with courts and the legal system. Counsel are prohibited from coaching witnesses as to appropriate answers and must never advise a client or witness to give false evidence. Counsel may advise clients to tell the truth and are entitled to test the version of evidence to be given by a witness by the identification of inconsistencies in the witness’s evidence with other evidence.
Witness preparation consultants do not attempt to thwart or conceal the truth of witness testimony, nor do they condone this by others.
Witness preparation consultants operate within the parameters of the Australian legal profession, regardless of their legal standing. While no formal parameters are currently established, we choose to use the model guidelines as laid down by the American Society of Witness preparation consultants, amended to reflect Australian circumstances[3].
WITNESS PREPARATION: PROFESSIONAL STANDARDS
Compliance with Laws and Rules
Duty to Clients
Duty to Witnesses
Witness preparation consultants shall treat witnesses with respect and consideration always.
WITNESS PREPARATION: PRACTICE GUIDELINES
Compliance with Laws and Rules
Duty to Clients
Clarify goals of the barrister or instructing solicitor for each witness preparation session. Practices can include, but are not limited to:
Methods
Methods used with the barrister or instructing solicitor and/or the instructing client to meet the agreed upon goals for a witness preparation session can include, but are not limited to:
Methods used with the witness to meet the agreed upon goals for a witness preparation session can include, but are not limited to:
Witness Preparation Consultants do not give legal advice, and, where necessary, will direct you to seek legal advice as required.
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[1] The Victorian Bar Incorporated - Practice Rules - RULES OF CONDUCT AND COMPULSORY CONTINUING PROFESSIONAL DEVELOPMENT RULES Effective 22 September 2009 - Victorian Bar Rules of Conduct
[2] Good Conduct Guide - Professional Standards for Victorian Barristers - Chapter 3 - Duties to the Court pg 40 Good Conduct Guide
[3] ASTC Professional Code - PRACTICE AREA B WITNESS PREPARATION ASTC Professional Code of Conduct for Witness Preparation
Witness Preparation Consultants recognise that witness preparation involves the art and science of interpersonal communication, and therefore our professional approaches will take many different forms.
For the purposes of these Professional Standards and Practice Guidelines, witness preparation refers to the assistance witness preparation consultants provide the barrister, instructing solicitor, or other clients in their effort to increase witnesses’ understanding, comfort and confidence in the process of giving evidence in the Australian Family Court jurisdiction, improving their ability to give cogent evidence, improve their conduct within court and improve their understanding of what is occurring around them. Giving evidence is a nerve-wracking experience for most people and very few are prepared for the rigours of cross-examination. Being in the witness box is the crucial time. The evidence given is weighed by the judge and how a witness answers questions, sits in the witness box, engages with opposing counsel and the Judge, all present a narrative to the Judge.
Coaching of witnesses with regards to their answers is prohibited. Witness preparation consultants comply with relevant sections of the Victorian Bar Incorporated Practice Rules;[1]
44)
- Under no circumstances shall a barrister advise or suggest to a witness that false evidence should be given.
- A barrister shall not coach a witness by advising what answers the witness should give to questions which might be asked.
45)
A barrister will not have breached Rule 44 by expressing a general admonition to tell the truth or by questioning and testing in conference the version of evidence to be given by a prospective witness, including drawing the witness’s attention to inconsistencies or other difficulties with the evidence, but must not coach or encourage the witness to give evidence different from the evidence which the witness believes to be true.
Similarly, the Victorian Bar Good Conduct Guide[2] lays out these responsibilities;
Clients and Witnesses
3.29 The court relies upon counsel to deal fairly with witnesses, the vast majority of whom are unfamiliar with courts and the legal system. Counsel are prohibited from coaching witnesses as to appropriate answers and must never advise a client or witness to give false evidence. Counsel may advise clients to tell the truth and are entitled to test the version of evidence to be given by a witness by the identification of inconsistencies in the witness’s evidence with other evidence.
Witness preparation consultants do not attempt to thwart or conceal the truth of witness testimony, nor do they condone this by others.
Witness preparation consultants operate within the parameters of the Australian legal profession, regardless of their legal standing. While no formal parameters are currently established, we choose to use the model guidelines as laid down by the American Society of Witness preparation consultants, amended to reflect Australian circumstances[3].
WITNESS PREPARATION: PROFESSIONAL STANDARDS
Compliance with Laws and Rules
- Witness preparation consultants shall advocate that a witness tell the truth.
- Witness preparation consultants shall familiarise themselves with applicable law and rules which may apply to witness preparation services.
- Witness preparation consultants shall provide witness preparation services within the boundaries of their competence based upon education, training, or other appropriate professional experience.
Duty to Clients
- Witness preparation consultants shall clarify with the client the goals for witness preparation and the role of the consultant.
- Witness preparation consultants shall describe the witness preparation process including techniques and their limitations.
- Witness preparation consultants are required to maintain privilege when working with clients at all times.
Duty to Witnesses
Witness preparation consultants shall treat witnesses with respect and consideration always.
WITNESS PREPARATION: PRACTICE GUIDELINES
Compliance with Laws and Rules
- Witness preparation consultants do not script specific answers or censor appropriate and relevant answers based solely on the expected harmful effect on case outcome.
Duty to Clients
Clarify goals of the barrister or instructing solicitor for each witness preparation session. Practices can include, but are not limited to:
- Clarify reasonable expectations for preparation assistance, and discourage unrealistic expectations of a witness’ capacities or the impact of any one witness’ testimony.
- Review case material provided by the barrister or instructing solicitor or other client.
- Agree how the witness preparation consultant will be introduced in a manner appropriate to both the goal of witness credibility and the consultant’s skill and training.
- Agree to review and revise goals for the witness preparation as necessary.
Methods
Methods used with the barrister or instructing solicitor and/or the instructing client to meet the agreed upon goals for a witness preparation session can include, but are not limited to:
- Assess and address communication issues between the witness and the barrister or instructing solicitor.
- Where beneficial in assisting the witness, plan for the use of demonstrative aids or other exhibits with the witness during mock examinations.
- Agree with the barrister or instructing solicitor on an appropriate approach to prepare the witness to answer questions by opposing counsel about the preparation session(s), should such questions be permitted.
Methods used with the witness to meet the agreed upon goals for a witness preparation session can include, but are not limited to:
- Assess and address verbal and non-verbal communication strengths and limitations.
- Identify witness concerns about evidence and goals for preparation.
- Work to increase witness comfort and confidence in giving evidence.
- Work to strengthen and help develop witness communication skills.
- Whenever helpful, educate the witness on significant aspects of the process and procedures for giving evidence.
- Clarify the consultant’s role in the preparation process.
- Address any issues with the physical appearance of the witness.
- Discuss assessment with witness.
- Discomfort or anxiety may be addressed by behavioural techniques, including, but not limited to: breathing exercises; relaxation or visualization techniques; reframing anxious reactions, fears or misperceptions; actual or facsimile courtroom visits.
- Work to improve witness’ listening skills.
- Whenever possible, conduct and review enough mock examinations to encourage the greatest improvement.
Witness Preparation Consultants do not give legal advice, and, where necessary, will direct you to seek legal advice as required.
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[1] The Victorian Bar Incorporated - Practice Rules - RULES OF CONDUCT AND COMPULSORY CONTINUING PROFESSIONAL DEVELOPMENT RULES Effective 22 September 2009 - Victorian Bar Rules of Conduct
[2] Good Conduct Guide - Professional Standards for Victorian Barristers - Chapter 3 - Duties to the Court pg 40 Good Conduct Guide
[3] ASTC Professional Code - PRACTICE AREA B WITNESS PREPARATION ASTC Professional Code of Conduct for Witness Preparation