Working with clients and witnesses internationally poses unique issues for attorneys and their clients. What may be considered best practices in the United States may be restricted or even forbidden in other jurisdictions. A case arising in Singapore highlights that something as ubiquitous in the United States as witness preparation, is frowned on and discouraged in other jurisdictions. This legal alert analyzes the distinctions between the rules regarding witness preparation in Singapore, Hong Kong and the United States and serves as an important reminder not to assume that the same rules that apply in the United States apply elsewhere; know the laws of the jurisdiction(s) in which you are operating and where your witnesses are located.
In 2017 the High Court of Singapore issued a judgment in Compania De Navegacion Palomar, S.A. and others v. Ernest Ferdinand Perez De La Sala, a case which raised important issues on the weight to be given to evidence tainted by so-called “witness coaching.” Compania De Navegacion Palomar, S.A. and others v. Ernest Ferdinand Perez De La Sala
In this case, Ernest Ferdinand Perez De La Sala, who was a director of six companies inherited from his father, was alleged to have transferred an estimated US$600 million to US$800 million out of the companies’ accounts to his personal account. The key issue was whether the monies taken from the six companies were beneficially owned by Ernest De La Sala, or whether they were held in trust for the De La Sala family. At trial, Ernest called his brother, Jerome Anthony Perez De La Sala (Tony), to give oral evidence.
During cross-examination, Tony was pressed on the date of his purchase of certain Australian properties initially owned by his family. Tony read a date from a post-it note, which contradicted his oral evidence given on the previous day. In cross-examination, Tony eventually told the court that he had gotten the dates on the post-it note from an underlying document (a 14-page script entitled “possible questions”), setting out questions and answers created on the back of training sessions Tony attended together with some other witnesses at Clifford Chance’s Sydney offices over five days. The script listed questions which Tony might be asked and answers to those questions. Tony eventually conceded that this document was not a record of his independent recollection, but was the fruit of his discussions with another witness and Ernest’s lawyers about his evidence.
In the judgment handed down by the High Court of Singapore, Quentin Loh J examined the law on witness coaching. Citing authorities from Hong Kong, England and Australia, Loh J held that while witness familiarization is perfectly legitimate, lawyers should never put words into a witness’s mouth. The distinction between coaching and familiarization is one of degree and very fact sensitive, but that should not prevent a court from making that distinction. The prohibition on witness coaching applies to civil cases as well as criminal cases, although it is acknowledged that in more complex civil cases, some group discussion early on in evidence gathering may be inevitable. Loh J stated that the principle that a witness’s evidence should be his or her honest and independent recollection expressed in his or her own words is “at the heart of civil litigation.” Unsurprisingly, the court gave negligible weight to Tony’s evidence.
Witness Preparation in Hong Kong
The principles on witness coaching set out in Compania De Navegacion Palomar, S.A. and others v. Ernest Ferdinand Perez De La Sala broadly apply in Hong Kong. Before a witness is called to give oral evidence in a trial, the witness may be asked to attend a preparatory session with lawyers. This familiarization session may be held to inform the witness about the court process (e.g., when the witness will be questioned and by whom) and courtroom settings, and may not be objectionable. If the discussion concerns evidence to be given by the witness, the participants will have to bear in mind the distinction between refreshing memory and witness coaching. In general, it is permissible to go through a statement or affidavit to assist a witness’s recollection of the facts, refer the witness to key documents, or ask questions the witness may face in cross-examination. However, it is not permissible to supplement or supplant the witness’s true recollection with another version of events, to advise the witness to move away from his or her original answer to one which favors the case or the person calling the individual as a witness, or to allow witnesses to collaborate on their answers to provide a version that is favorable to a party’s case.
Preparing Witnesses for Testimony in the United States
In the United States, witness “preparation” is considered not only good but also an important part of the system of jurisprudence, whereas witness “coaching” is disfavored. However, there is not a bright line distinction between the two concepts. Whether called “preparation,” “coaching” or something else, the most important advice a lawyer can give a witness is to “tell the truth.”
A lawyer may broadly prepare a witness to testify. A variety of legal authorities implicates witness preparation in the US, but generally a lawyer may invite the witness to provide truthful testimony and they may discuss, among other things:
- the witness’s recollection and probable testimony;
- other testimony or evidence that may be presented;
- the witness’s recollection or recounting of events in light of other witnesses’ testimony;
- the applicable law; the factual context into which the witness’s observations or opinions may fit;
- documents or other evidence that may be introduced; and
- probable lines of cross-examination.
In the United States, it is permissible for an attorney to suggest a choice of words that may assist the witness in making his or her intent clear, but the attorney cannot improperly influence a witness’s testimony or assist the witness to testify falsely as to a material fact. More broadly, an attorney may not suborn perjury or engage in conduct that involves dishonesty, fraud, deceit or misrepresentation.
Documents used to refresh a witness’s recollection may be discoverable pursuant to Rule 612 of the Federal Rules of Evidence. Thus, if in preparing a witness to testify an attorney shows a witness documents that help refresh the witness’s recollection of certain facts, the opposing counsel may request to see those documents. Counsel should be careful not to disclose to a witness facts that may be included in the attorney’s privileged work product (in a strategy memo, for example), because if the document refreshes the witness’s recollection, it may become discoverable under Rule 612.