Merely a week ago, only a few litigators in Colombia would admit to having met with their witnesses to prepare them despite it being more than evident in a legal system like ours.

There has been a considerable fear of potential professional liability and even criminal charges arising from the mistaken belief that preparing witnesses was inherently illegal as if it equated to coaching them to lie.

However, in its ruling STC9222-2023 dated September 13, 2023, the Supreme Court of Justice finally clarified that witness preparation is “(…) not only permissible but also necessary to fulfill the purposes of the current evidentiary regime.” We agree.

Why did the Court say this?

Surprisingly, or perhaps not, it can be traced back to the change made more than eleven years ago from the inquisitorial evidentiary regime (under the repealed Civil Procedure Code) to a confirmatory one (under the General Code of Procedure or “CGP,” in Spanish).

The Supreme Court explained that the CGP aims to have lawyers themselves conduct prior investigations of the facts and provide the best supporting evidence, thus preventing unnecessary, futile, or fraudulent litigation.

So, is it legal? When can lawyers prep witnesses?

The Supreme Court determined that it is legitimate for attorneys to meet with potential witnesses, which it considered a proactive approach. These preparation meetings can take place before and during the proceedings:

1. Before the proceedings, attorneys may meet with their potential witnesses:

a) To assess their level of knowledge, truthfulness, coherence, and spontaneity, among other inquiries that every attorney must make before summoning a witness, as their appearance in the proceedings depends on these factors.

b) To understand and outline the purpose of their testimony in the request for evidence.

2. During the proceedings, once the testimony has been ordered, attorneys and witnesses may meet again:

a) To revisit the scope of the witness’s knowledge regarding what is intended to be proven.

b) Instruct them on how to conduct the testimony, including procedural rituals and other guidelines for giving their testimony.

So, does anything go?

While the Court clarified the legitimacy of witness preparation, it also emphasized that the unwavering limit is the truthfulness of the testimony. No form of preparation should lead to distortion or alteration of the witness’s recollection, knowledge, or statements. In other words, witnesses cannot be coached to lie.

The Supreme Court reiterated that it is strictly prohibited for witnesses to assert facts they do not know or to distort or conceal those they do.

Remember that, under Article 28, section 17 of the Colombian Rules of Professional Liability, lawyers must “(…) encourage witnesses to testify about the facts within their knowledge truthfully.”

Moreover, altering the veracity of testimonies could potentially lead to criminal offenses, such as perjury (Article 442 of the Penal Code) and, if there are kickbacks or promises from an attorney in exchange for false testimony, bribery (Article 444 of the Penal Code).

What can we do to expose coached testimony?

Unfortunately, this can happen, and we often encounter it in our litigation. The Supreme Court provides several tools within the legal process that can be used to counter potentially coached testimony:

1. Prior statement of the requested testimony’s purpose: Under the CGP, those bringing a witness must precisely specify the facts about which the witness has knowledge and may be questioned, allowing the opposing party to prepare their cross-examination.

2. Examination and cross-examination: Parties can question and cross-examine all witnesses, which can reveal contradictions, lack of impartiality, and lack of spontaneity, among other factors.

3. The Judge must apply the best judgment when weighing the evidence: Parties can introduce other evidence that may affect the reliability of the testimony in the eyes of the Judge, who must analyze them collectively and weigh them. Confronting the witness with documents during cross-examination to highlight contradictions is worthwhile.

4. Impeach impartiality: Lastly, what was formerly known as a “challenge for suspicion” can be used to impeach the credibility of witnesses who may have some connection with the parties or their attorneys.

We applaud the Supreme Court for transparently addressing something that virtually all litigators were already doing but were afraid to admit. Clarifying the rules benefits all participants in the proceedings.

It is within our ability and our duty as litigators not to cross certain lines and to use evidentiary tools to identify and expose those who trespass them.