Sallitut keinot todistajan valmistelussa

Abstrakti

Lakimies-aikakauskirjan nuorten kirjoittajien palkinto 2019

Permissible practices in witness preparation

In Finland, it is rather commonplace for lawyers to prepare witnesses for a trial. However, the boundaries of the permissible in witness preparation remain obscure – there are hardly any guidelines or research regarding the practice, and the existing legal norms regarding witness preparation are sparse, fragmented, and in places ambiguous. Meanwhile, witness preparation typically proceeds behind closed doors and legal practitioners do not openly discuss the measures used in, nor the possible problems arising from, the preparation process.

The author examines the permissibility of witness preparation practices, analysing them using both practical legal dogmatic and empirical psychological research results. The research applies legal doctrinal method in order to interpret and systematise the Finnish norms applying to legal practitioners, namely the Advocates Act, the Bar Association’s Code of Conduct for Attorneys-at-Law, and the Licensed Legal Counsel Act. These norms provide that the main obligation of legal counsel is to be loyal to their client and pursue the client’s rights and interests. When it comes to witness preparation, this primary obligation is constrained by the duty to refrain from any action that could cause distortion in the testimony. However, the norms are silent as to what kind of actions should be considered distortive in practice. To clarify the ambiguous content of the said norms, the article scrutinises them by reference to empirical studies in witness psychology.

Research in witness psychology helps to assess witness preparation practices by providing knowledge about factors known to influence witnesses’ memory, interpretation and behaviour. Based on such psychological studies, it can be argued that permissibility of different witness preparation practices depends on whether or not they include going through specific details of the court case at hand. Based on this premise, the author adopts a division into case-neutral and case-specific practices. The author argues that this division – although crude and imperfect – aids us in distinguishing central characteristics determining the permissibility of preparation practices. Case-neutral preparation practices do not interfere with a witness’ memory but are likely to decrease anxiety related to testifying by, for instance, providing general guidance on the trial procedure. Hence, case-neutral practices may be considered acceptable and even recommendable, as they do not cause alterations in the testimony, but may instead assist in reaching an optimal testimony in court. In contrast, case-specific practices that focus on the content of the case or on details in testimony as such are often problematic, as they include a risk of interfering (often unintentionally) with the recollection or interpretation of the witness. Hence, such specific practices should be considered restricted as a rule, and some of them categorically prohibited.

By combining legal doctrinal with empirical psychological research, the author provides concrete tools for legal practitioners to follow when preparing witnesses. In addition, the author provides recommendations for harmonising and clarifying the legal norms applicable to witness preparation, in order to ensure that they accord with psychological research.