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problematic, if no perjury is involved. The risk rather is that such memorisation may
back-fire, where an astute cross-examiner or a question from the bench takes the
wdtness off his or her script. The risk is then one of damage to the witness and the host
counsel. I am even able to accept that such memorisation exercises may, in this sense,
pose a problem of efficiency in the administration of justice. But it does not pose a
risk of general propriety or ethics.
52. Perhaps, it helps to define what is meant by 'practising'. I regret that my
colleagues have not defined 'practising' in the entire maimer that they prohibit it. In
this connection, I feel it important to say that 'rehearsing' or 'practising' testimony is
not the same thing as 'coaching'. I do not agree at all that they be banded together and
tarred with the same prohibitory bmsh. 'Coaching', as indicated earlier,^^ involves
counsel's heavier footprint in the testimony, in terms of influencing a witness not only
as to how to say something, but also as to the thing to say in fact. I am firmly against
'coaching'. 'Practising' or 'rehearsing', on the other hand, may cover a range of
helpful conducts—^none of which involves the host-counsel in what a witness says or
how the witness says it. Consider, for instance, a situation in which counsel has
specific questions to ask a witness in an examination-in-chief. Counsel meets the
witness during one or two preparatory sessions, and does one of two things or a
combination of them, as the situation warrants. In the first scenario, perhaps involving
a simple testimony covering a limited number of questions, counsel specifically asks
those few questions straight through. In doing that, counsel never suggests—^by
speech or hint—^the answer that the witness should give to any of the questions or that
the witness has given the right or wrong answer. The point of the exercise here would
be that the questions 'practised' are no longer strange or new to the witness, or that
counsel knows whether or not the witness has any difficulty in handling the
terminology employed by counsel (including any concems relating to explicit
reference to body parts or the triggering of post-traumatic stresses) in asking the
questions. And, in the second scenario, perhaps involving a more complex testimony,
counsel uses the occasion of those questions and answers not only to accomplish the
same objectives indicated in the first scenario, but also to clarify the witness's
testimony and deal with potential confusion and inconsistencies. [As in: 'The answer
you gave to an earlier question is the same as the answer you give now to a different
question. Are we talking about the same thing?' and vice versa]. And, as with the first
scenario, all the while counsel never suggests, by speech or hint, the answer that the
witness should give to any of the questions or that the witness has given the right or
wrong answer.
'^ See paragraph 27 above.
ICC-01/09-01/11-524 03-01-2013 42/44 NM T
No. ICC-01/09-01/11 21/23 2 January 2013