In German civil proceedings witnesses are supposed to testify only according to their “vivid memory”, in order to give their best evidence at the hearing. With regard to witness credibility it is therefore advisable not to get in touch with witnesses before their testimony. However, the German Code of Civil Procedure encourages witnesses to prepare for giving evidence by refreshing their memory – if possible – by going through their records and documents. Hence, presenting well prepared witnesses at court hearings can further the principle of establishment of the truth in civil proceedings. The lawyer can therefore question the witness prior to his testimony in order to explore the whole truth and all necessary information for the court proceedings. Previously, the German Professional Guidelines contained a broad prohibition on witness preparation which can create the appearance of an influenced witness. This provision was abolished by the Federal Constitutional Court in 1987. Since there are merely ethical but no statutory provisions limiting the lawyer from preparing the witness before a deposition, it appears likely that witness preparation is legally permissible in Germany. The only sanction a lawyer faces is a possible criminal prosecution for intentionally inducing a witness to give a false testimony.
In European civil law jurisdictions only the Swiss Canton of Geneva prohibits the lawyer from discussing the witnesses future testimony and from influencing witnesses of any kind. In England and Wales, a common law jurisdiction, witness coaching is prohibited. The Court of Appeal has stated that “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.” In contrast, lawyers are permitted to ‘familiarise’ witnesses with the process of the trial and giving evidence. Therefore witness training and mock trials are only legitimate if they are not in reference to the specific case, although in a recent Commercial Court case, the judge commented that even witness training is to be discouraged since it tends to reflect badly on the witness who, perhaps through no fault of his or her own, may appear evasive because he or she has been “trained” to give evidence in a particular way.
In the US, professional rules normally permit witness preparation on the basis that it can help the witness to give truthful evidence in favour of the lawyer’s client. In addition, there are a handful of decisions from the US Supreme Court and other state courts acknowledging the legitimacy of witness preparation and coaching, as long as the witness is not induced to give a false testimony. Witness preparation is typically protected from discovery under the work-product doctrine or the attorney-client privilege. Therefore the court or the opposing party are in principle only entitled to question whether a witness has been prepared for the deposition, while the substance of the witness preparation itself is protected under US rules of privilege. In Germany however, there is no equivalent privilege. Only the lawyer is entitled to refuse to give evidence.