When Does Preparing a Witness Turn Into Distorting Evidence?

The Rules of Professional Conduct of the Law Society of Upper Canada state that: “The lawyer must not …knowingly attempt to deceive a tribunal or influence the course of justice by offering false evidence…suppressing what ought to be disclosed…”

Lawyers may be offering false evidence without even knowing it. Lawyers frequently refresh witnesses’ memories in preparation for discovery or trial. However, refreshing a witness’s memory is not a neutral activity. In Witness Preparation: A Practical Guide, Bryan Finlay et al state that “the process of memory is not a simple matter of resurrecting fixed traces, but instead a process of ‘creative reconstruction’. The reconstruction of past events is highly susceptible to distortion through for example, bias, self-interest, form of questioning, language of questioning and many other factors.” For example, a lawyer may explain why a certain fact is important, prompting the witness to “recall” it as so.

The Rules of Professional Conduct do not adequately guard against lawyers taking advantage of the way memories are formed. The Rules are abstract, and abstract principles are hard to apply. They are open to different interpretations. And some of these interpretations may be unethical. But against the backdrop of abstraction, the approach of the unethical preparer may be permissible. Therefore, there needs to be a defined set of guidelines that take into account how the process of memory works. Such guidelines would hopefully prevent lawyers from using dishonourable tactics.

“There’s another. Why may not that be the skull of a lawyer? Where be his quiddities [subtleties] now, his quillities [evasions], his cases, his tenures, and his tricks?” – Hamlet, Shakespeare