The Crown Prosecution Service [CPS] is going to encourage its advocates to coach witnesses before they give their evidence in court. The thinking behind this serious tampering with a witness is to assist them in sticking to the script and to anticipate and deal with hostile questions flying at them from the defence lawyer.
I am a fan of most things American, but not their criminal legal system. It’s very much like the curate’s egg, good in parts. Their jury vetting process is a good idea, to weed out the brain-dead morons and the rednecks, but it’s taken to extremes. I suspect that if a juror during the vetting process wanted to serve on the jury, he’d give the right answer to fairly rudimentary questions, and the converse applies. It reminds me of the McCarthy witch hunts of the fifties: “Are you, or have you ever been, a member of the communist party?” What sort of a jackassed question is that!
I remember some years ago prosecuting an actuarial fraud at the Old Bailey, and numeracy and literacy were essential prerequisites if the jury were to follow the evidence. In our system, where there is no jury vetting, once the prospective juror comes to the book to be sworn but before he is sworn, the prosecution or defence can object. In that case, one of the prospective jurors was illiterate, but by the time we had all spotted it, it was too late, so he sat in the jury box looking totally bemused. As it turned out, the judge was also totally bemused, so he stopped the trial, entered a not guilty verdict, and made the first tee by three o’clock. Some sort of jury vetting would have helped.
The sentencing process leaves me totally bemused. Talking of actuarial fraud, I am reminded of Bernie Madoff, who preyed on the greed of halfwits and made enormous sums of money in the process. Once his scam was exposed and his grateful clients turned on him like a viper at the breast, he was sentenced to 150 years’ imprisonment. That sort of sentence is ridiculous and brings the whole process into disrepute.
Lest I digress, back to witness coaching, or ‘prepping’ as the Americans would have it. The real danger is that a ‘prepped’ witness is likely to give the ‘prepped’ answer and not the truth, the whole truth and nothing but the truth, but some version of it. It is very tempting to point out to the witness where the weaknesses lie in their account, and to try and paper over the cracks.
I am a believer in the judge taking a firm grip on the trial. If a witness is confused, it should be for the judge to clarify. If the witness is getting upset, it should be for the judge to order a comfort break. And most importantly of all, the judge should bring to an end the questioning of a witness if the questioning is too long or oppressive. The judge is ideally placed to see fair play. He should exercise his powers of intervention, which is far better than the very dubious practice of witness coaching. Finally, it should be borne in mind that the defence must be told in advance that the prosecution witness has been coached. That seems like an own goal.