H. Michael Steinberg has 42+ years of experience practicing Colorado criminal law. Mr. Steinberg strives to stay current with the ever changing aspects of criminal law issues and updates resulting in his extensive knowledge of successful criminal defense as well as appellate work. He is also an active member of the National Association of Criminal Defense Lawyers, the Colorado Criminal Defense Bar Association, the Colorado Trial Lawyer's Association, and the Colorado and Arapahoe Bar Associations.
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Preparing To Defend A Criminal Trial – Coaching vs Coercing in Witness Preparation

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Preparing To Defend A Criminal Trial – Coaching vs Coercing in Witness Preparation

A Guide from The Steinberg Colorado Criminal Defense Law Firm

By H. Michael Steinberg, A Colorado Criminal Defense Lawyer – Practicing Colorado Criminal Law from both sides for over 40 years.

Preparing To Defend A Criminal Trial - Coaching vs Coercing in Witness PreparationIntroduction

Witness preparation is one of those obvious things that all lawyers talks about. Just set the witness down, run the anticipated questions from both sides at them and tell them to be calm, …. done.

Except it is not like that.

The lawyer’s job is to “extract the facts from the witness, not to pour them into him, to learn what the witness does know, not to teach him what he ought to know.”

                                             In re Eldridge, 37 N.Y. 161, 171 (N.Y. 1880).

The delicate  line between helping a witness to tell the truth clearly and pushing them toward a version of events that serves your side can get blurry fast. The blur  is subtle.

The distinction between legitimate witness preparation and guidance versus unethical efforts to influence witness testimony, a practice that has been variously called:

Coaching,
Horseshedding,
Woodshedding,
or
Sandpapering.

Sidebar: Guidance to Lawyers: Section 116 of the Restatement (Third) of the Law Governing Lawyers provides a nonexclusive list of 10 permissible ways in which lawyers can prepare witnesses to testify:

1. Invite the witness to provide truthful testimony favorable to the lawyer’s client.
2. Discuss the role of the witness and effective courtroom demeanor.
3. Discuss the witness’s recollection and probable testimony.
4. Reveal to the witness other testimony or evidence that will be presented and ask the witness to reconsider the witness’s recollection or recounting of events in that light.
5. Discuss the applicability of law to the events in issue.
6. Review the factual context into which the witness’s observations or opinions will fit.
7. Review documents or other physical evidence that may be introduced.
8. Discuss probable lines of hostile cross-examination that the witness should be prepared to meet.
9. Rehearse testimony.
10. Suggest a choice of words that might be employed to make the witness’s meaning clear.

Lawyers do not wake up planning to do anything unethical. They really just want their witnesses to not blow up on cross. They want them to not ramble on the witness stand. They want them to not look like they are searching or guessing.

All are fair goals:

But the methods matter. Those methods usually falls into one of three main buckets.

Coaxing. Coaching. Coercing.

These goals may sound similar, and in the office they can feel similar, but they are not the same thing. If you do witness prep long enough you will see how easy it is to slide from one into the next. Especially under time pressure. Especially when the case is complex and difficult. Especially when you are dealing with a nervous witness who just wants to please you.

So let’s break it down in a practical way.

First, What Is Witness Prep?

Witness prep is not intended to manufacture testimony. It is there to make testimony usable.

Usable means:

  • The witness understands the process and is not blindsided.
  • The witness can answer the question asked, not three questions they wish were asked.
  • The witness will tell the truth in a clear, complete, and accurate way.
  • The witness avoids guessing, volunteering, arguing, or adopting lawyer language.
  • The witness stays grounded even when the other side tries to provoke them.

A prepped witness should sound like themselves. Same memory, same limits, same uncertainty where uncertainty exists and less panic and less chaos..

Coaching: the Ethical Core of Witness Prep

Coaching is skill building. Not story shaping.

You are teaching the witness how to testify. How to listen. How to pause. How to ask for clarification. How to handle documents. How to handle “isn’t it true…” questions. How to handle silence.

You are not telling them what to remember. You are not telling them what to say happened. You are not giving them replacement language that quietly changes meaning.

Coaching:

  • “If you do not know, say you do not know. Do not guess.”
  • “If you are not sure, say you are not sure.”
  • “Answer the question asked, then stop.”
  • “It is okay to take a moment before answering.”
  • “If you need to correct something you said earlier, do it directly.”
  • “Do not argue with counsel. ”
  • “If a question assumes facts you do not agree with, say that.”

Coaching also includes helping the witness understand their own documents and timeline, as long as the defense lawyer is careful to distinguish between refreshing their memory and rewriting it.

One example:

The defense lawyer shows the witness an email, ask them to read it, then ask: “Does this refresh your memory about when the meeting happened.”

They say yes or no. They explain in their own words. The lawyer does not feed them the conclusion. That is coaching.

Coaxing: the Slippery Middle That Can Be Okay, or … Not

Coaxing is more emotional. More relational. It is pulling the best version of the witness out of their anxiety, confusion, or defensiveness.

Honestly, coaxing is often necessary because witnesses are human. Some are embarrassed. Some are angry. Some are scared. Some are loyal to another and terrified of consequences to that person. Some have never been contradicted in public and cannot handle it well.

Coaxing is the part where you say:

  • “It is okay, take your time.”
  • “Let’s slow down and go piece by piece.”
  • “You are doing fine. Just stick to what you remember.”
  • “If you do not understand, tell me.”
  • “We are not looking for perfect. We are looking for accuracy.”

Coaxing can also include helping a witness access their memory by using neutral prompts:

  • “What do you remember about that week.”
  • “Where were you working from then.”
  • “Who else was usually present.”
  • “What happened right before that.”
  • “What happened right after.”

That kind of coaxing is not inherently wrong. It is basically good interviewing.

On the other hand coaxing can turn into leading. When the warmth or reassurance is tied to a preferred answer. When your tone changes depending on what they say.

Here is how the exactly the same context can go two ways.

Neutral Coaxing:

Witness: “I do not remember if it was Monday or Tuesday.”

Lawyer: “That is okay. Let’s look at what else you remember around that time. Anything that anchors it for you.”

Directional Coaxing:

Witness: “I do not remember if it was Monday or Tuesday.”

Lawyer: “Are you sure it wasn’t Tuesday. Because Tuesday makes more sense with the schedule. Think about it, it was probably Tuesday.”

That second version is not coaching or neutral coaxing, it is trying to move memory. Even if the lawyer believes they are right. Even if they are convinced the witness just forgot. Even if Tuesday fits the defense theory beautifully.

Coaxing is a tool. The ethical question is whether the criminal defense lawyer is coaxing clarity or coaxing content.

Coercing: When Witness Preparation Becomes Pressure, and Pressure Becomes Testimony

Coercing is pushing. It is pressure. It is making the witness feel they have to adopt your version or there may be consequences.

Coercion can look like “legal advice” in a harsh tone. It can look like guilt. It can look like repeated insistence until the witness gives in.

Coercion:

  • “You cannot say that.”
  • “That answer will destroy us.”
  • “If you testify that way, we are in trouble.”
  • “No, you are wrong. That is not what happened.”
  • “You need to be consistent with what you said before.”
  • “Just say you do not remember” when they actually do remember.

And the most common coercion move, the one that shows up quietly, is forcing artificial certainty.

Witness: “I think it was around 3, maybe 4.”

Lawyer: “You need to pick one. Which is it? Say 3.”

That is coercion because the lawyer is trading accuracy for neatness and shaping the testimony into something the lawyer can sell.

Another coercion move is steering a witness away from a truthful admission because it hurts.

Witness: “Yes, I did see the report before we shipped.”

Lawyer: “No, you did not ‘see’ it. You might have glanced. Just say you don’t recall reviewing it.”

This is not just tightening language, it is changing substance.

Coercion is also about who the preparation is serving. Coaching serves the process and the truth. Coercion only serves the outcome.

A coerced witness is brittle. They sound rehearsed. They will nervously overcorrect. They will freeze when under cross-examination when opposing counsel takes them off the script. They will become defensive because they are protecting a narrative, not recounting memory.

Juries will feel it. Judges will feel it and opposing counsel will smell blood in the water.

The Practical Differences Between Coaching and Coaxing in Plain Terms

  • Coaching is teaching the witness how to testify truthfully.
  • Coaxing is helping the witness access and communicate their truthful memory, without fear.
  • Coercing is pressuring the witness into testimony that is more helpful than true, or more clean than true.
  • Coached testimony tends to be clear, natural, and bounded. “I don’t know” shows up when appropriate.
  • Coaxed testimony tends to be fuller. More coherent narrative, but still personal language.
  • Coerced testimony tends to be polished, oddly certain, and packed with lawyer words. Or it comes out stiff, like they are walking on eggshells.

Why Lawyers Slip Into Coercion

Two main reasons.

First, fear. The fear that the witness will tank the case. The fear that they will say something confusing. The fear that the other side will twist them. The fear that the witness will look unprepared.

Second, attachment to a specific criminal defense theory. Once the criminal defense builds a case narrative, everything starts to get judged by whether it fit that theory. A witness becomes a moving part. And if the witness does  not fit, the temptation is to “fix” that witness.

This is where it can get very dangerous. The inexperienced  criminal defense lawyer stops listening to what the witness is actually saying and starts listening for what that lawyer wants them them to say.

Witnesses want to please. Certain witness such as family members or perhaps anyone who thinks you are the authority in the room. That power imbalance is real.

Witness Preparation vs. Witness Tampering in Colorado

Colorado law does not prohibit ordinary witness preparation. A lawyer may meet with a witness, explain process and courtroom mechanics, review documents or prior statements, test recollection, identify inconsistencies, and prepare the witness to give complete and truthful testimony.

The line is crossed when preparation becomes an intentional effort to shape the substance of testimony falsely, procure unlawful silence or nonappearance, or attach a prohibited benefit or threat to the witness’s conduct.

The Line—Witness Tampering § 18-8-707

Under Colo. Rev. Stat. § 18-8-707,

…a person commits witness tampering by intentionally attempting, without bribery or threats, to induce a witness or victim (or someone believed likely to be called) to:

(1) testify falsely or unlawfully withhold testimony;

(2) miss a proceeding to which the person has been legally summoned; or

(3) evade legal process.

A class 4 felony. Colo. Rev. Stat. § 18-8-707

The protected class is broad. A “witness” includes a person with knowledge of any crime, someone who has reported a crime, a subpoenaed person, and someone reasonably believed to fit those categories; a subpoena is therefore not a prerequisite for protection. Colo. Rev. Stat. § 18-8-702

Section 18-8-707(1)(a) does not require the witness to have been summoned or the conduct to have disrupted “actual testimony”; “testimony” includes statements or evidence that may later be offered through a witness.

People v. Cunefare, 102 P.3d 302 (Colo. 2004)

The prosecution need not prove that the witness accepted the suggestion, altered testimony, or failed to appear. The offense is complete upon the intentional attempt to influence the witness in a prohibited way.

People v. Scialabba, 55 P.3d 207 (Colo. Ct. App. 2002)

The exception is § 18-8-707(1)(b): for an accusation that the defendant tried to cause absence from a proceeding, the witness must actually have been “legally summoned”—i.e., under a court-imposed obligation to appear, though not necessarily served with a subpoena.

People v. Yascavage, 101 P.3d 1090 (Colo. 2004)

Some Practical Boundaries

Ordinarily permissible preparation focuses on the witness’s own knowledge and truthfulness:

“Tell me everything you recall”

“I want you to answer accurately even if it hurts our case”

“You may say you do not know or do not remember if that is true”

“Here is your prior statement—does it refresh your recollection?”

High-risk or prohibited coaching directs the answer rather than tests the witness’s memory:

“Use this version”

“Do not mention that fact”

“Say you do not remember”

“Soften the account”

“Keep your answer consistent with our theory”

or,

“Avoid the subpoena.”

In attorney discipline proceedings, a Colorado tribunal found tampering where a lawyer tried to have a prospective witness “soften” her account and disregard or evade a subpoena.

People v. Olson, 470 P.3d 789 (Colo. 2016)

The distinction turns especially on whether the proposed withholding of evidence was unlawful.

Advising a person not to participate voluntarily in a consensual police interview, without more, does not establish witness tampering; the person may lawfully decline that kind of encounter.

Compare that to instructing a person with no applicable privilege to disregard a valid subpoena does amount to an attempt to induce unlawful withholding.

A Colorado lawyer may advise a witness about a valid Fifth Amendment, marital, or other personal privilege, but should not invent, overstate, or direct the assertion of a non-existent privilege.

Other Criminal Theories: Money and Pressure Change the Charge

Section 18-8-707 expressly addresses non-bribery, non-threat attempts. If the influence involves a benefit, the potentially applicable offense is bribing a witness or victim: offering, conferring, or agreeing to confer a benefit with intent to obtain false testimony, unlawful withholding, avoidance of process, or absence from a proceeding. Colo. Rev. Stat. § 18-8-703 A class 4 felony.

Furthermore, threats, harassment, or harm intended to obtain false testimony, silence, absence, evasion, or false information can be interpreted as  intimidating a witness or victim, also a class 4 felony. Colo. Rev. Stat. § 18-8-704 The intimidation provision expressly extends to influencing relevant-information holders to withhold information from—or give false information to—law enforcement, defense counsel, or defense investigators. Colo. Rev. Stat. § 18-8-704

Colorado Attorney-Discipline Issues and Consequences

The Colorado rules of professional responsibility independently provides that a lawyer may not:

“falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law.”

People v. Vivarttas, 139 P.3d 707 (Colo. 2006)

Importantly attempting to discourage a non client witness from giving relevant information can additionally violate Colo. RPC 3.4(a) and 3.4(f), even apart from a charged criminal conviction.

People v. Olson, 470 P.3d 789 (Colo. 2016)

FAQFAQs (Frequently Asked Questions)

What is the primary purpose of witness preparation?

Witness preparation is designed to make testimony usable by ensuring the witness understands the process, answers the questions asked clearly and accurately, avoids common pitfalls like guessing or arguing, and remains composed under cross-examination. It is not meant to manufacture testimony but to help witnesses tell the truth effectively.

How does coaching differ from coaxing and coercing in witness prep?

Coaching focuses on skill-building without shaping the story. It teaches witnesses how to listen, pause, ask for clarification, handle documents, and respond ethically—such as saying ‘I don’t know’ when appropriate—without influencing what they remember or say. Coaxing involves emotional support to help witnesses access their memory but risks becoming leading if it pushes for preferred answers. Coercing crosses ethical lines by applying pressure to alter testimony.

What are some examples of ethical coaching techniques during witness prep?

Ethical coaching includes advising witnesses to answer only the question asked, take their time before responding, admit uncertainty honestly, avoid guessing, correct prior statements directly if needed, refrain from arguing with opposing counsel, and clarify when a question contains incorrect assumptions—all while helping them understand relevant documents without rewriting their memory.

When does coaxing become ethically problematic in witness preparation?

Coaxing becomes problematic when it shifts from helping a witness recall information neutrally to leading them toward a specific answer that serves the case. This can happen if reassurance or tone changes depending on responses or if prompts suggest preferred outcomes rather than encouraging accurate recollection.

Why is it important for a prepped witness to sound like themselves during testimony?

A prepped witness should maintain their original memory, including any uncertainties or limits, but with less panic and chaos. This authenticity ensures that testimony remains truthful and credible while being clear and comprehensible to the court—preserving both accuracy and integrity.

How can lawyers avoid slipping from coaching into coercion during witness preparation?

Lawyers should remain mindful of maintaining ethical boundaries by focusing on skill-building rather than influencing content. Under time pressure or with nervous witnesses, it’s easy to unintentionally push toward preferred versions of events. Regular self-checks asking whether they are helping witnesses answer better versus differently can prevent crossing into coercion.

Additionally, clear communication about the purpose of preparation and encouraging witnesses to speak in their own words reinforces honesty. Documenting the process provides transparency and helps ensure adherence to ethical standards.

Colorado Criminal Law – Preparing To Defend A Criminal Trial – Coaching vs Coercing in Witness Preparation

The reader is alerted that Colorado criminal law, like criminal law in every state and at the Federal level, changes constantly. The article appearing above was accurate when it was drafted, but it cannot account for changes occurring after it was uploaded.

BEST-STANDING-CHOICE-200x300ABOUT THE AUTHOR: H. Michael Steinberg – Email the Author at: hmsteinberg@hotmail.com

A Denver, Colorado Criminal Defense Lawyer – or call his office at 303-627-7777 during business hours – or call his cell if you cannot wait and need his immediate assistance – please call 720-220-2277.

“A good criminal defense lawyer is someone who devotes themselves to their client’s case from beginning to end, always realizing that this case is the most important thing in that client’s life.”

Putting more than 40 years of Colorado criminal defense experience to work for you.

You should be careful to make a responsible choice when selecting a Colorado criminal defense lawyer. We encourage you to “vet” our firm. Over the last 40 years – by focusing ONLY on Colorado criminal law – H. Michael has had the necessary time to commit to the task of constantly updating himself on nearly every area of criminal law, including Colorado criminal law and procedure and trial and courtroom practice.

H. Michael works hard to get his clients the best possible results in and out of the courtroom. He has written, and continues to write, extensively on Colorado criminal law, and he hopes this article helps you in some small way.