WITNESS TRAINING: BLUNTS THE EFFECTIVENESS OF TRIAL AND IS RELEVANT TO AN ASSESSMENT OF CREDIBILITY

October 19, 2015 · by · in Civil evidence, Uncategorized, Witness statements

Issues relating to “witness training” are bound to be controversial.  The advocates of witness training (often, surprisingly, those who provide the training) state it is a good thing.  However it is clear that trial judges often have their reservations as a recent case shows.

“However in the modern age, where there is little or no examination in chief, and where witnesses’ statements tend to be carefully written with substantial assistance from lawyers, the effect of such training can be to blunt the effectiveness of cross examination and make the exercise of assessing credibility even harder than it already is.”

WITNESS TRAINING NOT NECESSARY

Capital for Enterprises Fund -v- Bibby Financial Services Limited [2015] EWHC 2593 (Ch). HH Judge Pelling.

“There is one point I should make at this stage however that is relevant to an assessment of credibility. It occurred to me as each of Messrs Fitzsimmons, Cooney and Johnson gave their evidence that they each appeared to answer questions using largely similar expressions that in my experience are unusual from witnesses of fact in a commercial dispute of this nature. The phraseology was obviously not naturally that of any of these witnesses. I considered it possible that each had undergone some form of training. When I suggested to Mr Mills in the course of his closing submissions that this might be so, he accepted that the Bibby witnesses had received some training from a professional service provider in preparation for the trial but had not in any sense been coached. It was not suggested by Mr Trompeter that such training is improper as long as it does not involve coaching and I do not suggest otherwise. However in the modern age, where there is little or no examination in chief, and where witnesses’ statements tend to be carefully written with substantial assistance from lawyers, the effect of such training can be to blunt the effectiveness of cross examination and make the exercise of assessing credibility even harder than it already is. To that extent, that a witness has undertaken such training is a factor (albeit in this case not a very strong factor) relevant to an assessment of credibility.”

Globe Motors portugal-Material Electrico Para A Industria Automvel LDA -v- TRW Lucas Varity Electric Steering Ltd [2014] EWHC 3718 QB HH Judge Mackie QC

“Some of Globe’s witnesses were hampered by the effects of some external ‘witness preparation training’ which their integrity and common sense fortunately enabled them to shake off as their cross-examination continued.”

THERE IS ROLE FOR WITNESS FAMILIARISATION

There is scope however for witness familiarisation. Independent academic research carried out by the University of Leeds and Liverpool  indication that some witness familiarisation had benefits. One major problem was the complex and multi-faceted way in which advocates ask question. The research found that:

  • Prepared witnesses were significantly more likely than the unprepared to provide correct responses to cross-examination questions.
  • Prepared witnesses were more likely to seek clarification during cross-examination.
  • Prepared witnesses were less likely to be confused or unduly influenced by the form of cross-examination questions.

THE ETHICS OF WITNESS TRAINING

So the fundamental question is how are working litigators going to ensure that witnesses are are given appropriate, and totally ethical, guidance which allows that witness to assist the court fully.

The dangers of witness familiarisation training was clearly recognised by the Court of Appeal in R -v- Momodou [2005] EWCA Crim 177

 Witness training (coaching)

Bond Solon
  1. There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings (whether for prosecution or defence) is not permitted. This is the logical consequence of well-known principle that discussions between witnesses should not take place, and that the statements and proofs of one witness should not be disclosed to any other witness. (See Richardson [1971] CAR 244; Arif, unreported, 22nd June 1993; Skinner [1994] 99 CAR 212; and Shaw [2002] EWCA Crim 3004.) The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so. These risks are inherent in witness training. Even if the training takes place one-to-one with someone completely remote from the facts of the case itself, the witness may come, even unconsciously, to appreciate which aspects of his evidence are perhaps not quite consistent with what others are saying, or indeed not quite what is required of him. An honest witness may alter the emphasis of his evidence to accommodate what he thinks may be a different, more accurate, or simply better remembered perception of events. A dishonest witness will very rapidly calculate how his testimony may be “improved”. These dangers are present in one-to-one witness training. Where however the witness is jointly trained with other witnesses to the same events, the dangers dramatically increase. Recollections change. Memories are contaminated. Witnesses may bring their respective accounts into what they believe to be better alignment with others. They may be encouraged to do so, consciously or unconsciously. They may collude deliberately. They may be inadvertently contaminated. Whether deliberately or inadvertently, the evidence may no longer be their own. Although none of this is inevitable, the risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited.
  2. This principle does not preclude pre-trial arrangements to familiarise witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants. Indeed such arrangements, usually in the form of a pre-trial visit to the court, are generally to be welcomed. Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible. Such experience can also be provided by out of court familiarisation techniques. The process may improve the manner in which the witness gives evidence by, for example, reducing the nervous tension arising from inexperience of the process. Nevertheless the evidence remains the witness’s own uncontaminated evidence. Equally, the principle does not prohibit training of expert and similar witnesses in, for example, the technique of giving comprehensive evidence of a specialist kind to a jury, both during evidence-in-chief and in cross-examination, and, another example, developing the ability to resist the inevitable pressure of going further in evidence than matters covered by the witnesses’ specific expertise. The critical feature of training of this kind is that it should not be arranged in the context of nor related to any forthcoming trial, and it can therefore have no impact whatever on it.
  3. In the context of an anticipated criminal trial, if arrangements are made for witness familiarisation by outside agencies, not, for example, that routinely performed by or through the Witness Service, the following broad guidance should be followed. In relation to prosecution witnesses, the Crown Prosecution Service should be informed in advance of any proposal for familiarisation. If appropriate after obtaining police input, the Crown Prosecution Service should be invited to comment in advance on the proposals. If relevant information comes to the police, the police should inform the Crown Prosecution Service. The proposals for the intended familiarisation programme should be reduced into writing, rather than left to informal conversations. If, having examined them, the Crown Prosecution Service suggests that the programme may be breaching the permitted limits, it should be amended. If the defence engages in the process, it would in our judgment be extremely wise for counsel’s advice to be sought, again in advance, and again with written information about the nature and extent of the training. In any event, it is in our judgment a matter of professional duty on counsel and solicitors to ensure that the trial judge is informed of any familiarisation process organised by the defence using outside agencies, and it will follow that the Crown Prosecution Service will be made aware of what has happened.
  4. This familiarisation process should normally be supervised or conducted by a solicitor or barrister, or someone who is responsible to a solicitor or barrister with experience of the criminal justice process, and preferably by an organisation accredited for the purpose by the Bar Council and Law Society. None of those involved should have any personal knowledge of the matters in issue. Records should be maintained of all those present and the identity of those responsible for the familiarisation process, whenever it takes place. The programme should be retained, together with all the written material (or appropriate copies) used during the familiarisation sessions. None of the material should bear any similarity whatever to the issues in the criminal proceedings to be attended by the witnesses, and nothing in it should play on or trigger the witness’s recollection of events. As already indicated, the document quoted in paragraph 41, if used, would have been utterly flawed. If discussion of the instant criminal proceedings begins, as it almost inevitably will, it must be stopped. And advice given about precisely why it is impermissible, with a warning against the danger of evidence contamination and the risk that the course of justice may be perverted. Note should be made if and when any such warning is given.
  5. All documents used in the process should be retained, and if relevant to prosecution witnesses, handed to the Crown Prosecution Service as a matter of course, and in relation to defence witnesses, produced to the court. None should be destroyed. It should be a matter of professional obligation for barristers and solicitors involved in these processes, or indeed the trial itself, to see that this guidance is followed.
  6. On the facts apparently established, alternatively on the factual assumptions made at trial, so far as these appellants were concerned this guidance was not complied with in relation to two witnesses, Wakefield and Burns. As already indicated, their names were among those provided to the defence as having attended for training.
  7. We have closely examined the relevant material. We have already noted the facts agreed by the Crown at trial and the judge’s directions. The fact of and the arrangements for the training programme organised by Group 4 with Bond Solon reflected adversely not on the defence but on the Crown. Legitimate and powerful forensic criticism of the facts was made by the defence: the Crown conceded its justification: the judge unequivocally endorsed it. In Wakefield’s case, his contemporaneous notes of the incident were made on the following day. If his evidence drifted away from those notes, there was ample scope for cross-examination. In Burns’ case, her evidence was not wholly critical of Limani. In any event, the way in which the “training” issue was left to the jury meant that it was damaging to the creditworthiness of every witnesses who received it. In the result, looking at the evidence overall, the arrangements for training for Burns and Wakefield do not undermine the safety of the conviction.”

ETHICAL GUIDANCE

The Law Society and Bar Council guidelines were looked at in detail in a previous post.

PROPORTIONATE GUIDANCE

Useful guidance is given in the Home Office guide Giving Evidence in Court. A copy of this, or a link to this, could be useful for most people giving evidence in court.  Among other things it explains the purpose of giving evidence. At the very least a prudent litigator should ensure that witnesses have access to this guide.

“To help the jury or magistrate reach a decision, you must explain, as clearly and concisely
as possible, what you have:
 seen
 heard
 recorded, and
you must do this:
 honestly
 impartially, and
 without embellishment.
As a general principle, all you are required to do is to give evidence as honestly and clearly as possible.You are not a professional witness or a performer, and are not expected to demonstrate anyspecial evidence giving skills. But, the courts are entitled to expect to hear the true facts, as you know them, presented competently

The Guide also recommends:

  • Taking a pre-trial visit to the Court and courtroom.
  • Appropriate steps for refreshing your memory.
  • Take care with your appearance and demeanour.
  • Be straightforward.
  • Be objective.
  • Listen carefully to the questions you are asked and think before you answer.
  • If you do not understand a vague, complex or poorly phrased question, say so and ask politely, for clarification.
  • “As a general rule, the more rude and outrageous the questioner, the more cool, calm and collected you must be, the person who remains reasonable and composed will gain more respect and credibility”.

  THE REAL DANGER OF WITNESS TRAINING: ULTIMATELY, HOWEVER, IN MOST CIVIL CASES IT IS THE PEOPLE TAKING THE STATEMENTS THAT NEED THE TRAINING NOT THE WITNESSES

This is a point clearly seen in the numerous cases on witness statements and witness credibility posted on this blog. There is virtually no training or instruction on the training of witness statements.  Most people I ask have never been on a course (and I have now asked hundreds of solicitors). Most have not read the rules or any of the guidelines, let alone any of the specialist texts or Practice Directions.  I would hazard a guess that most of the “problems” with witnesses in civil cases arise from the way in which the statements are taken and presented by the lawyer, rather than the witnesses themselves.

VIDEO GUIDANCE FROM HARDWICKE

OTHER GUIDANCE

There are guidance notes which give advice on giving evidence.

 OTHER ARTICLES ON THE SUBJECT

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