A recent trial level decision discounted the testimony of the claimant after the trial judge made a finding that the witness had been coached. How do you determine if the witness was coached or merely prepared by his or her attorney in anticipation of testimony? How do you define the fine line between permissible and unethical? What factors are essential in making that finding?
Excellent lawyers spend hours with their clients in advance of testimony. Is it merely to discuss what to wear to court, and what to eat the day before? Sometimes witnesses are so anxious that lawyer needs to calm them down by explaining the routine of trial, the dress code required and the need to get a full night's sleep before the hearing. Sometime there are so many documents and collateral testimony that it is helpful to review them with a client before his or her testimony.
While clients need to know the parameters of what is expected in a judicial proceeding, feeding the answers to a client to mimic like a ventriloquist act is obviously over the line. Telling the client to be honest and accurate as well as responsive is appropriate. The witness needs to know that they shouldn't guess if they don't know an answer to a question.
Attorney's objections made at a hearing can be phrased in such a fashion as to signal or suggest an answer to the witness. That would appear to be coaching is objectionable. Likewise a spectator in the courtroom signaling in a non-verbal manner to a witness could be deemed to be prejudicial error and grounds for a mistrial.
A NJ workers' compensation court characterized coaching when an injured worker started to cry on the witnesses stand, when asked a question as to how he felt. "Overall, the JOC found petitioner's testimony appeared “to be well coached and practiced. [He] cried as if on cue when his counsel asked how he felt.”
Credibility seems to be the essential criteria in judicial witness evaluations. Judges, especially in a non-jury, administrative action, must take all aspects of the conduct and appearance of the witness into consideration. Determining if an individual is making a non-credible, or coached cry, is an extremely difficult call to make. Applying the law to the facts is a difficult enough judicial task. Even if it is only a workers' compensation proceeding, asking judges to make a determination if a cry is "coached" seems to be an extraordinary responsibility.
Valle v I.M.Supermarkets, Docket # a1910-08, NJ App Div 2010. (Decided April 16, 2010)
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