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Witnesses – Integrity of evidence

Witnesses – Integrity of evidence

Ensuring the integrity of evidence in legal proceedings is a key part of a solicitor’s paramount duty to the court and to the administration of justice. A solicitor’s failure to comply with this fundamental ethical obligation may have extremely serious consequences both for the client and the solicitor. You need to know the key things to do and not to do.

Witnesses and the integrity of evidence – 10 Ethical Do’s and Do Not’s

Do’s:

  • Always keep in mind your paramount duty to the court and to the administration of justice
  • Refresh yourself on the current relevant professional conduct roles
  • Conduct yourself fairly and honestly at all times
  • Be polite, courteous, and professional in all your dealings
  • Your role as an officer of the court is to assist the court in achieving a just result

Don’ts:

  • Never suggest that a witness give false or misleading evidence
  • Coaching or suborning a witness is absolutely prohibited
  • Do not confer with two or more lay witnesses together
  • Never communicate with a witness under cross-examination without the express prior permission of the cross-examiner or leave of the court
  • Do not seek information from a witness where you know that such information is the subject of a confidentiality obligation to a third party by the witness

Duty to the administration of justice

Ensuring the integrity of evidence in legal proceedings is a key part of a solicitor’s paramount duty to the court and the administration of justice.

As a leading legal academic commentator has written:

The lawyer’s role as a participant in the administration of justice attracts the responsibility to protect the integrity of evidence. Any lawyer behaviour that upsets that integrity, or appears to do so, can negatively impact on public confidence in the legal process and consequently reduce the reputation of, and trust placed in, the profession.” (1)

Professional conduct rules

Before speaking or conferring with witnesses or potential witnesses solicitors should always refresh themselves with the relevant professional conduct rules which govern their behaviour in this area. (2)

As well, the Law Institute of Victoria has published ethical guidelines for solicitors interviewing and conferring with witnesses which should be consulted for useful guidance. (3)

These ethical guidelines cover topics such as interviewing prospective defendants, employees of corporations, insured parties, third parties such as insurers, and opposition witnesses.

No property in a witness

Whilst it is well established in law that there is no property in a witness, solicitors acting in criminal matters should be extremely careful in approaching witnesses being called by the prosecution, especially in the case of alleged sexual offences. (4)

Ethical witness preparation

Ethical witness preparation is a key part of ensuring that the court process is not abused and that a just and equitable resolute is obtained in the litigation.

A Federal Court of Australia judge has written:

There is a fine line between legitimate witness preparation and unethical coaching of a witness. Despite the difficulty of drawing that line, the courts insist upon its maintenance. Whether or not preparation amounts to unethical coaching is necessarily fact specific and involves matters of degree.” (5)

A Western Australian Supreme Court judge has given some practical guidance (6):

Care obviously needs to be taken to avoid coaching or at any improper attempt to deter a witness from giving truthful evidence in a case….It is permissible to prepare a witness to give coherent evidence, particularly in a commercial case involving many documents. It is proper for a trial witness to peruse and refresh from the documents, so as to be adequately prepared, both for providing a witness statement and then for giving evidence. Legitimate document familiarisation is in stark contradistinction to attempts to school witnesses by equipping them with clever responses for questions that are likely to be asked during cross-examination. Instructions about a lack of memory or the problematic consequences arising from the word ‘would’, are, however, legitimate.”

Particular care must be taken when calling evidence from expert witnesses. It must be remembered at all times that the primary duty of an expert witness is to the court and not to the litigant who has engaged the witness. In this regard, useful guidance has been given by a trial judge in the Supreme Court of Victoria. (7)

Conclusion

The lawyer’s role as protector of the integrity of evidence is reflected in several ways in connection with lawyer dealings with witnesses….Informing these is the need for the relationship between a lawyer and witness to be, and be seen to be, on a proper professional plane.” (8)

References:

  1. G E Dal Pont, Lawyers’ Professional Responsibility, 6th edition, Thomson Reuters at [17.150]
  2. Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (rules 24, 25, and 26)
  3. Interviewing and Conferring with Witnesses Guidelines, Law Institute of Victoria, 10 February 2017
  4. D Bowles, Can a defence lawyer undertake contact with complainants in criminal matters?, Queensland Law Society, January
  5. The Hon Justice J Griffiths, Some ethical issues for legal practitioners, College of Law Professional Skills Development Programs, 19 November 2015
  6. The Hon Justice Kenneth Martin, Between the Devil and the Deep Blue Sea: Conflict between the duty to the client and duty to the court, Bar Association of Queensland Annual Conference, 4 March, 2012
  7. The Hon Justice Peter Vickery, Road Corporations v Love (2010) VSC 253 at [40]
  8. G E Dal Pont, Lawyers’ Professional Responsibility, 6th edition, Thomson Reuters at [17.150]