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11. Beyond minimising the 'ordeal' factor of testimony, witness preparation also
assists in an orderly search for the tmth. Cromwell, Finlay and latrou succinctly
captured such value of witness preparation in the following way:
Witness preparation involves two main sorts of work. First, it is part and parcel of
counsel's relentless search for facts, both favourable and unfavourable. The
interviewing of potential witnesses is an important aspect of this search. Second, once
it is decided who will be called to testify, counsel must prepare the witnesses to give
evidence, and in doing so, the duty of counsel is to make the testimony as effective as
possible. In order to achieve this, counsel must assist the witnesses to deal
satisfactorily with what probably will be an unusual and, in some cases, a traumatic
experience. Moreover, tribunals depend on witnesses being adequately prepared so
that evidence is adduced in an orderly and efficient manner.^
12. In explaining the efficacious value of witness preparation, they observed as
follows: 'The testimony of a witness must be focused. The trier of fact has a difficult
enough job without having to pore over reams of badly organised, marginally relevant
material. The goal of "winning the case" argues in favour of witnesses being properly
prepared and centred on relevant materials before the commencement of the
hearing.'^°
Spontaneity
13. It is right to insist that the overall benefits of witness preparation are not to be
accorded subordinate value in comparison to the idea of 'spontaneity' in witness
testimony that is held up as militating against witness preparation. It might also be
pointed out that all the questions that counsel ask witnesses in examinations-in-chief
or cross-examinations are seldom spontaneous, if counsel had tmly prepared their
cases thoroughly. Counsel's questions come mostly from extensive advance
preparation to ask precise questions in a precise way. Nor are counsel's dictions,
syntaxes, cadences, facial expressions, postures, etc, always spontaneous. If it is fair
for counsel to engage in preparations for purposes of asking questions in, say, cross-
examination, so, too, must it be fair for witnesses to be prepared to answer questions
in cross-examination.
14. Similarly, the extensive preparation of counsel ahead of cross-examination
does not wholly eliminate spontaneity in the process. Prepared witnesses often give
unexpected answers to questions; presenting competent and alert counsel with
spontaneous opportunities to be explored or exploited. Hence, preparing witnesses for
their testimony will not eliminate spontaneous occurrences in the course of the
examination.
^ Finlay, Cromwell and latrou, supra, p 6.
'Ubid,pl.
ICC-01/09-01/11-524 03-01-2013 26/44 NM T
No. ICC-01/09-01/11 5/23 2 January 2013