On those rare occasions when a trial actually looks as if it might go ahead, the witnesses start to get twitchy, writes Kim Franklin.
Let's face it, the process of producing a witness statement is scant preparation for the rigours of the courtroom.
Back in the legal dark ages witnesses went into the witness box and told their story, or gave 'evidence in chief', with the assistance of helpful but open questions. Some witnesses were so fazed by the business at this stage that they forgot key parts of their evidence and failed to 'come up to proof'. Only if they remembered why they were there, would they need to be cross-examined by the opposing party. But long ago the courts decided that evidence in chief was, more or less, a waste of time: better for the witness to set out their story in a written statement. Now, long and detailed witness statements are prepared in endless sessions with the computer, the documents and, inevitably, the lawyers.
The resulting tome is tendered as the witness' evidence in chief and only as the trial approaches do thoughts turn to cross-examination.
Contrary to popular belief, the object of cross-examination is not to reduce the witness to tears, to shout at them or to show off with a flourish of silk handkerchief - that happens on television. Cross-examination is intended to show that the witness' evidence is completely mistaken, wholly unreliable or plain wrong. Nevertheless it is not terribly pleasant.
Understandably therefore, witnesses who wonder quite what they have in store sometimes ask if it is possible to have a bit of a run through.
The answer is 'no'. It is not permitted, and counterproductive for a witness to be coached in their evidence.
The strength of any witness's evidence is that it comes from them and is not what the lawyers would like them to say. If the evidence is contaminated by someone else's enthusiasm for the case, it is worse than useless and can be fatal to the cause.
Some training organisations have, however, recognised a gap in the market and run 'witness familiarisation' courses intended to prepare the witness for the experience of giving evidence. But where do you draw the line between permissible 'familiarisation' and prohibited 'coaching'?
In a recent criminal case, R v Momodou and Limani (2005) the Court of Appeal gave some guidelines on this important topic. Essentially, the familiarisation should not be related in any way to the impending trial. Witnesses learn about the layout of the court, the likely sequence of events and the different responsibilities of the parties.
They should not be disadvantaged by ignorance of the process or taken by surprise by how it works.
But the process should bear no resemblance to the forthcoming trial and if any trial-related discussion arises it should be nipped, instantly, in the bud.
In short, witnesses can be helped with what they are in for, but not with what they are going to say.