How Defense Lawyers Help Witnesses Testify

Defense lawyers can review anticipated testimony with witnesses, but are limited in how much they can “coach.”

Potential defense witnesses in criminal trials (defendants included) might wonder whether defense attorneys can guide their testimony. The answer is yes and no. Lawyers can certainly discuss testimony with witnesses in advance of actually testifying, but they can’t direct them as to what, exactly, to say.

No Leading in Court

When a witness testifies on direct examination, a lawyer can’t use leading questions to signal the answers that he wants the witness to give. For example, assume that defense attorney Dennis wants defense witness Wendy to testify that she arrived home at 9 p.m. While questioning Wendy in court, Dennis can’t ask, “Did you arrive home at 9 p.m.? Instead, he would have to ask a less leading question, such as, “What time did you arrive home?” But if Wendy is a prosecution witness and Dennis is questioning her on cross-examination, he can ask leading questions like the one suggesting that she arrived home at 9.

Other Ways to Help

Defense lawyers can use methods other than leading questions to help defendants and defense witnesses testify in a truthful and accurate manner. Defense lawyers can and should meet with their clients and witnesses before trial to review their testimony. And if the witness forgets something while testifying, the lawyer can show the witness a letter, report, or other document to refresh the witness’s memory (the prosecution gets to see that document, too). Many judges will even permit lawyers to ask leading questions if a witness has had an obvious glitch in recall. But, for the most part, neither prosecutors nor defense attorneys can ask leading questions of their own witnesses regarding fundamental issues involved in the trial.

Example: Jesse James is charged with armed robbery; his defense is mistaken identity. The prosecutor calls Kit Carson as a witness and asks, “You saw the defendant rob the store, is that correct?” This is an improper leading question because it suggests the prosecutor’s desired answer. Defense counsel can object and force the prosecutor to ask a non-leading question. For example, if Kit has testified to seeing someone in the store with a gun, the prosecutor might properly ask, “Please look around the courtroom and tell us if you see the person whom you saw with a gun in the store.” (Of course, the problem with a leading question, even one the judge strikes, is that it has already suggested the answer to the witness.)

Consult an Attorney

If you are a defendant considering testifying or preparing to testify, consult your attorney regarding all issues relating to your potential testimony. If you don’t have a lawyer, get an experienced one; that gives you your best chance at trial.

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