And they know that sometimes the other side has no evidence to discredit a liar. Or, as in Anatomy of a Murder , the subject of the testimony may be the client's mental state. It's hard to disprove what someone says about his or her subjective feelings. A Judicial Perspective Judges recognize the problem, says Richard Fruin, a superior court judge in Compton, Calif., and chair of the ABA's Judicial Division. I get very uncomfortable about what is getting ironed out of a witness's testimony.
Tough enforcement remains elusive.
Hofstra professor Freedman says one way to curb unethical witness coaching is through sting operations, in which an undercover informant poses as a client and goes to see a lawyer who is suspected of subornation. It would require caution to make sure there's probable cause and that prosecutors aren't just targeting defense attorneys they dislike, Freedman says. Gillers would like to see U.S. attorneys and county prosecutors set up special units to address witness-related crimes such as perjury, obstruction of justice and bribery. It would have a strong deterrent effect, he says. Bring a half-dozen highly publicized cases a year.