Trial Lawyers' Ethics

D. Evidence and Legal Ethics

The process of examining, cross examining and impeaching witnesses and presenting various forms of evidence in court is subject not only to rules of evidentiary admissibility such as relevance and hearsay, and rules of evidentiary procedure (e.g. Rule 611), but also to rules of lawyers’ ethics. While courtroom lawyers are expected to be vigorous advocates for their respective clients’ legal and factual contentions, they are not unbounded in their presentation of factual material. As officers of the court, lawyers are ethically forbidden from making direct assertions of fact they know are false. They are also barred from presenting testimony that they know is perjurious. How do lawyers reconcile their roles as partisan adversaries with a standard of candor in their dealings with facts in court?

The following brief excerpt from a current text on Trial Advocacy gives an overview of some of the most common ethical problems which arise in the course of civil and criminal trials of issues of fact.

Murray, Basic Trial Advocacy, Chapter 3, “Trial Lawyer Ethics”, pp. 19-51 (Aspen 1995)

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Trial lawyers are confronted with difficult issues of lawyers' ethics on a daily basis. In addition to the myriad of ethical issues and constraints which apply to the lawyering function generally, there are serious ethical quandaries posed by the special function of the trial lawyer to recreate a client's version of reality in the courtroom setting.

A. Ethical Issues at Trial

. . . . Is the image which the trial lawyer seeks to recreate only an illusion? Does the trial lawyer have any obligation to objective "truth" in that which she presents to the fact finders? Is the standard of accountability limited to what the lawyer can "get away with" without offending either judge or factfinder?

Our adversary trial system, which gives the lawyers almost the entire responsibility for presenting the fact image in court, also puts them under great pressure to win for their clients. Trial lawyers also want to win for themselves. Sometimes the lawyers, as they seek to represent their clients effectively, seem more likes sporting contestants, or even combatants, than serious seekers after truth.

The trial context raises its own unique variety of ethical issues because of the nature of the trial itself. The trial is fundamentally an exercise in which the lawyers for each of the opposing sides attempt to present fact images about an event, circumstance, or condition that occurred outside the courtroom. The fidelity and accuracy of the in-court fact presentations are vital to the integrity of the process. series of ethical issues because the trial itself is an exercise in determining the "truth" about an event, circumstance or condition which occurred outside the courtroom. The accuracy of the in court fact presentations is vital to the integrity of the process.

Despite the value of cross-examination as a tool to uncover falsehood, there is often no way of objectively validating a particular assertion or image. It is possible to present an image that is false, fundamentally or in some detail, and not get caught. Does the trial lawyer’s duty to the client mean that the lawyer may or should present such an image when it is possible and expedient to do so?

The tension between effective presentation of facts from the standpoint of a client's interest and the presentation of the facts in an objectively accurate fashion is ever present. Each case is likely to involve two versions of what really happened. It is rare that both versions are objectively true. And the presentation process itself can involve deception and tactics that may seem unfair. There are few issues in the presentation of a case on trial that do not involve serious questions of whether what the lawyer is doing or might do is ethical.

Another difficulty with trial lawyer ethics is that there is some variation and disagreement among the trial lawyers themselves as to what is and is not ethically permissible. Of course there are black letter rules that apply to everyone, but in the large area of practice that does not fall squarely within the requirements of a black letter rule, there is room for wide disagreement. This lack of unanimity among sincere and conscientious scholars and practitioners on what is ethically required means that some trial lawyers ultimately fashion their own ethical codes within the overall bounds of the formal rules.

It should be also kept in mind, that trial lawyers are confronted with difficult ethical issues not in the deliberate comfort of their offices and libraries, but in the heat of battle, the give and take of the courtroom. Under these conditions of fierce competition, if not combat, deliberate and detached consideration of reason and policy is sometimes difficult and it can be easy to do something impulsively which is later regretted. . . .

B. The Formal Ethical Rules

Formal ethical rules governing the activities of trial lawyers can be considered in two groups. The first group consists of the many rules of ethics that explicitly regulate specific functions of the lawyer in the trial process. These rules, with their various articulated rationales, are applications to the trial specialty of ethical rules governing lawyers generally.

The second group of rules are more general in form. They address issues such as candor, truthfulness and honesty in dealings with court, client and opposing parties. Some of these apply primarily, if not exclusively, to the activities of trial lawyers presenting their cases in court. They implement policies in favor of accuracy and integrity in court proceedings, Often they are difficult to apply in borderline situations.

Every state and federal jurisdiction has adopted ethical rules and regulations binding on law practitioners in that jurisdiction. Many of these ethical codes are versions of either the Model Code of Professional Responsibility (ABA Code) or the Model Rules of Professional Conduct (ABA Rules), both originally sponsored by the American Bar Association. These explicit rules have the force of law and violations are subject to official sanction. All lawyers, including trial lawyers, must abide scrupulously with both the specific and the general rules as interpreted and applied in their governing jurisdictions.

Specific Rules that Apply to Trial Lawyering

Almost all of the many specific ethical rules contained in the governing codes have some application to the trial setting. For example, rules requiring confidentiality between client and lawyer apply to all lawyers. In the context of the work of the trial lawyer these rules often have poignant application. Well known are the cases in which trial lawyers learn from their clients information about other unsolved crimes, but are barred from disclosing their knowledge to baffled law enforcement officials or even next of kin of deceased victims.

Ethical rules regulating conflicts of interest also apply to representation in litigation and at trial as well as in other contexts. Litigation tends to sharpen conflicts and sensitize parties about the implications of actions taken in their behalf or in behalf of others. Rare is the case where a trial lawyer can ethically represent more than a single, clearly defined interest in a litigation situation. Often is the situation presented where the trial lawyer may be subject to claims of potentially conflicting interests of clients, witnesses and others.

There are also specific rules which apply primarily to the trial context. For instance, the rule which prohibits a trial lawyer from expressing a personal belief on the merits or on the credibility of a witness at trial is generally considered a rule of ethics and is codified along with ethical rules governing lawyers. Similar rules regulate trial publicity (and even literary rights), communications by the lawyer with the judge, other trial participants, witnesses, and jurors and the special responsibilities of the prosecutor.

These specific rules must be and are generally complied with. Whenthey are not, there is usually not much question about the appropriateness of sanctions. Trial lawyers should know all of these rules well and take care to avoid infractions. The applications of some of these rules to common trial situations is discussed below.

General Rules of Candor and Truthfulness

The other, and much more troublesome rules with which a trial lawyer must be concerned are generalized prohibitions against fraud and the presentation of false evidence.These rules appear in somewhat more general terms in the codifications. They represent attempts to require by rule a minimum level of candor, fairness and objective factual integrity in trial presentations. By their terms, they directly address the trial lawyer and what she is doing when she organizes, orchestrates, and directs the presentation of a fact image in behalf of her client.

For instance, Disciplinary Rule 7-102 states that a lawyer shall not “conceal or fail to disclose that which he is required by law to reveal” or “counsel or assist his client in conduct that the lawyer knows to be illegal or fraudulent.” Model Rule 3.3 prescribes that a lawyer shall not knowingly “fail to disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client” or “offer evidence that the lawyer knows to be false.” Compliance with these rules may often be perceived to conflict with effective representation of client interests and the lawyer’s own desire to win. These rules have proven extremely difficult to apply in some situations presented by trial practice.

In fact, there is considerable debate among scholars and practitioners about what these rules really mean. What does it mean when the ABA Code of Professional Responsibility says that a lawyer shall not " Participate in the creation or preservation of evidence when he knows or it is obvious that the evidence is false."? Does this mean that a lawyer has an obligation to make an independent determination of the objective truth of that which she is presenting and only present what she is convinced is objectively true? Does this rule forbid a lawyer from advising her client as to the legal consequences of potential versions of the facts? When does a lawyer "know" that evidence is "false"? How does this rule apply to attacking evidence proffered by the other side?

On the other hand, what do the rules mean when they say that a lawyer may "(2) Refuse to aid or participate in conduct that he believes is unlawful, even though there is some support for an argument that the conduct is lawful."? Can a lawyer refuse to argue an inference that she does not believe in? Can a lawyer pull punches in cross-examining a witness who is telling the truth. How should a lawyer balance the interests of her client against her own commitment to the truth?

These and other provisions of the rules which relate to the candor and integrity of the lawyer's presentation have been interpreted and reinterpreted by lawyers, judges and scholars over and over again. No final answer has been found.

The more recently drafted Model Rules of Professional Conduct have attempted to address trial candor and integrity more specifically and less ambiguously than did the Model Code. But even those Rules are not wholly successful at establishing clear guides to the trial lawyer in planning a presentation in court. According to the Model Rules, a lawyer shall not "in trial allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence ..." What kind of standard of objective truth is "reasonable belief"? Although one of the prime purposes of the Model Rules was to remove ambiguities found in the Model Code and make applicable standards more explicit, experience with the Rules has shown there there is a great deal of room for diference and doubt as to the meaning of many of the key formulations.

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C. The Obligation to Present the Truth

As discussed above, a trial is a process of recreating an image of an event or circumstance from real life in order to apply to that fact picture certain rules of law. In order for the process to apply the law reliably to real life happenings, the trial process must produce a fact picture which faithfully reflects the reality which is the subject matter of the presentation. It is claimed that the adversary system which subjects the competing versions of the truth to a more or less passive factfinder produces a composite image of high factual accuracy.

The question is whether the participants in that process, and in particular, the lawyers have any obligation to present only information which they know or at least believe is accurate. On the one hand, it seems basically wrong for a person to be knowingly presenting false information to a tribunal which is supposed to be finding out the truth. On the other hand, lawyers function in court not as judges but as partisan representatives who are loyal to the interests of their client. It is asking a great deal of lawyers to sit in judgment of their clients’ cases even before putting them on. The basic tenet of the adversary system requires that the lawyer present the version of the truth to which the client subscribes and that the court determine the “real” truth from the cash of the competing partisan presentations.

Both the Model Code and the Model Rules attempt to mediate between the duty to the client and the need to maintain some standard of candor in court presentations. Without parsing the words of the Code or Model Rules and, at the risk of gross oversimplification, the trial lawyer is required by both formulations to observe a certain level of objective candor on certain key matters including questions of law and the fact evidence and testimony that are actually presented by the lawyer in court. The lawyer is thus ethically responsible for the law given to the court and for the facts that she has a hand in presenting.

1. Questions of Law

On questions of law the lawyer is required to maintain a high standard of objective candor, even to the extent of disclosing to the court legal authority known to the lawyer to be contrary to the position the lawyer is advancing in behalf of her client. This obligation is well understood by most lawyers from the time of their first moot court arguments in law school. Rarely is a lawyer called to task for knowing failure to disclose unfavorable legal authority.

2. False Testimony and Evidence

According to both the Code and the Model Rules, the lawyer’s duty of candor also applies to any evidence or testimony the lawyer presents in court. It is safe to say that both formulations forbid a lawyer from attempting to create a false factual picture with evidence or testimony that the lawyer knows is false. Both the language and the apparent policy of these provisions would appear to be fairly clear, but not all lawyers agree on how they should be applied.

In a civil case virtually all would agree that a lawyer cannot ethically present testimony which the lawyer knows is false and almost all would agree that a lawyer is barred from adducing false testimony from a non-client witness in a criminal case as well. However there is a significant difference of opinion when it comes to presentation of evidence through the testimony of the criminal defendant himself. The predominant view is that knowing presentation of perjured testimony of a criminal defendant in violation of both the Code and the Rules is clearly unethical. On the other hand, there are respected scholars and practitioners who argue that the defendant’s right to effective assistance of counsel requires that a criminal defense lawyer be permitted to offer the defendant’s own testimony, regardless of whether it is known to be true or false. However, respected scholars and practitioners also argue that preservation of the right to effective assistance of counsel for persons accused of crime requires that criminal defense lawyers be permitted to offer the criminal defendant's own testimony regardless of whether it is true or false.

Even lawyers who state that they would never call any perjurious witness acknowledge that they may go to some pains to avoid knowing whether the witness's proposed testimony is true or false. Ignorance is never a good preparation for the rigors of trial. Sometimes the need to know enough to present a defense without knowing too much leads to strange interview techniques:

Q. Now, Mr. Client, don’t tell me what happened, just tell me what you thing the State is going to say happened.

or

Q. Maybe you could tell me what your worst enemy would say that your did.. . .

Other lawyers ask their clients for the facts straight out, but not until they have warned the client of the consequences of being candid with his lawyer:

Counsel . Now before we get into your version of what happened, you should know that as a lawyer I am under an ethical obligation not to present testimony that I know to be false. So if you tell me something now, I will not be able to let you get on the witness stand and tell the jury something else. You should tell me the truth, of course, but you should also know that whatever your tell me is what we have to go with if you testify at your trial.

Such “Miranda warnings’ can be confusing to the client at best and, at worst, may invite the client to make up the “official” story before telling anything to the lawyer.

To some lawyers, the constitutional right to effective assistance of counsel entitles a party to a lawyer's advice on the legal consequences of potential versions of the facts before the party is asked "what happened?"

Counsel. Now before we get into your story, you should know the legal consequences of various versions of what might have happened. If you saw the victim before you hit him, even if you saw him just a moment before, you would probably be guilty of murder. Of course, if you didn’t see him, you could not have formed the necessary intent to kill him, and it would be an accident. In that case the worst you could be guilty of would be negligent homicide.

This kind of counseling has an obvious potential for assisting the client in the formulation of a perjurious story that would best serve the client’s interests. The line between appropriately providing a client with legal advice and facilitating the creation of perjury, which is expressly forbidden by Code and Rules, is not always a distinct one.

The United States Supreme Court has ruled that the constitutional right to counsel does not require appointed defense counsel to permit a criminal defendant to testify falsely at his own trial. Whether this right would protect from discipline a lawyer who knowingly permits her client to testify falsely in his own defense is still an open question.

The prohibition of presentation of false testimony is limited in both Code and Rules to “knowing” presentation of false testimony. If the lawyer in good faith does not know that the testimony is false, it is not unethical to put it on. It is all right to accept the statement of a client of witness relatively uncritically. It is all right to present the testimony even if the lawyer has her suspicions as to its truthfulness or is somewhat skeptical.

If the witness believes his own testimony to be true but the lawyer knows that the witness is mistaken, is it ethical to present the testimony? If the defendant confessed to his lawyer that he was the person who mugged Linda Loomis on the night of May 14, may his lawyer present alibi testimony given in good faith, but erroneously, by the defendant’s employer? Although the question is not free from doubt, most lawyers read the word “false” in the Code and Rules to cover only evidence and testimony known by both lawyer and witness to be false. If the witness in good faith believes the evidence to be true, most lawyers would say that the lawyer can put it on, even if the lawyer “knows” that it is wrong.

In the final analysis, if a lawyer's duty of candor in trial presentation is to have any meaning, the Rules and Code prohibitions should be fairly read to forbid any presentation by the lawyer of evidence or testimony that she knows is false, regardless of the source of the testimony or the belief of the witness. Nor should a lawyer who intends to comply with the minimum rules of candor feel obligated to warn her client at the outset. The requirement that a lawyer cannot present false testimony is inherent in the system under which the representation is being provided to the client. There is no reason why a lawyer should feel compelled to assist the client in evading that requirement. Finally, a lawyer's duty to advise a client about the legal consequences of conduct that has already occurred does not require that the lawyer brief the client before the client relates the facts to the lawyer.

Although the foregoing propositions do not command universal agreement, they do follow the black letter rules and they do establish a meaningful minimum level of lawyer integrity in the fact presentation process. Any lower standard that would permit either knowing use of false evidence, or conscious efforts "not to know" is likely to lead to a slippery slope on which any responsibility for the presentation of objective truth is quickly lost.

3. False Inferences and Arguments

While the Code and Rules rather clearly prohibit a lawyer from creating a false fact image by presenting false testimony and evidence, there is considerably more latitude permitted in creating and arguing questionable or even false inferences from testimony not known to be untrue. The prohibitory language of both Code and Rules refers only to “testimony” and “evidence” “known” to be “false” or “fraudulent”.. By negative inference as well as by long-established professional consensus, generating and arguing false inferences or conclusions from true proven facts is not unethical.

For example, if the criminal defense lawyer knew that her client had seen the decedent lying on the sidewalk before running over him with his car, that lawyer would be barred from calling the defendant as a witness and permitting hi to testify that he had not seen anything. However, the lawyer would not be barred from bringing up other evidence that would support the inference that the defendant did not see anything. Nor would the lawyer be precluded from arguing in summation that it was too dark for the defendant to have seen the decedent and that, because other witnesses had been unable to see the decedent, it was unlikely that the defendant could have done so.

The rules requiring candor do not restrict a lawyer from trying to cast doubt on witness testimony that the lawyer knows to be true, both by cross-examination and by argument. Even if the defendant has told his lawyer that he was the assailant who mugged the elderly victim in the hall outside her apartment, the lawyer may cross examine the victim in an effort to undermine her identification of his client:

Q. You customarily wear glasses, don’t you, Ms. Loomis?

A. Yes, I do.

Q. You didn’t have your glasses on on the evening of May 14, did you?

A. That’s right, I had left them in the apartment.

Q. The only light in your hallway is a small bulb at the end fo the corridor, isn’t it?

A. If you say so.

Q. And you saw this person who grabbed your purse for only a second, right?

A. Yeah, I guess so.

All of this examination is calculated to support the inference that the victim might have misidentified the perpetrator, an inference that the lawyer knows is false.

This latitude extends even to calling witnesses to give truthful testimony that leads to a false conclusion. For instance, in the example above, defense counsel would be ethically permitted to call a character witness to attest to the defendant’s reputation for honesty and nonviolence. These traits are ones chosen by the lawyer as inconsistent with the conclusion that the defendant committed the crime.

Q. And now, Reverend Grimes, what is Mr. Thomas’ reputation in your congregation for honesty and nonviolence.

A. His reputation for honesty and nonviolence is good. He is an honest and gentle young man.

As long as the witness is telling what he thinks is the truth, the lawyer may ethically present his testimony even in aid of a false argument or conclusion.

By the same token, the lawyer is also permitted to argue from facts known to be true for a conclusion known to be false. In summation:

Defendant’s Counsel. Members of the jury, how could Ms. Loomis have seen the man who grabbed her purse well enough to be able to identify Jeff Thomas as that man? It was dark in that hall. She didn’t have her glasses on, and the whole business lasted for just a split second..

You heard Mr. Boilard, he is Jeff Thomas’s boss at the Rosebud saloon. Jeff wasn’t at 24 Washington Avenue at 10 p.m. on the night of May 14. He was at the Rosebud washing dishes.

And we all remember Reverend Grimes, the minister of the church where Jeff and his mother are members of the congregation. He told us that Jeff is simply not the kind of person who would do anything like take anybody’s pocketbook.

In criminal cases, the moral authority for this latitude with the known truth is the right of the criminal defendant to “put the government to its proof” It is the government’s obligation to prove guilt beyond a reasonable doubt. Hence the defendant’s lawyer may generate false inferences and arguments in a criminal case.

This rationale, or course, does not apply to civil cases or to the conduct of th prosecutor in a criminal case. It is clear that a prosecutor who knowingly maintains a false prosecution by use of false inferences from true facts is in violation of at least the more stringent standards of prosecutorial conduct. Whether a lawyer can argue false inferences in a civil case is much less clear. Some lawyers read the prohibitions against false and fraudulent fact presentations narrowly as limited to the actual facts but excluding inferences. Others would refuse in any case, criminal or civil, to employ any argument or inference known to be false, regardless of the truth of the underlying facts.

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G. How Ethical Issues Arise

Issues of candor and fairness in trial representation arise in a variety of contexts, large and small. Many of the most stringent ethical quandaries arise in the course of witness preparation. This is when the lawyer begins to feel uncomfortable if she suspects that her client is fabricating a story that the lawyer will be expect to present as the truth, and when she may be tempted to give the client the legal advice necessary to craft a false exonerating scenario. This is also when the lawyer has the opportunity to consider the ethical consequences of her fact presentation outside of the hurly-burly of the trial itself and to make the tough decisions and to structure her presentation along ethical lines.

During the actual trial, the lawyer will also encounter many situations in which her loyalty to honesty and candor will be tested. The trial process is replete with opportunities to take advantage of circumstance and to unfairly create a false impression. Many lapses of candor and integrity never become the subject of any kind of disciplinary proceeding. They often go undetected and unpunished and are matters solely between the lawyer and her conscience.

To a large extent, trial lawyers must police themselves. Techniques of communication and presentation are imprecise. It is easy "unintentionally" to misquote testimony. It is sometimes hard to resist the temptation to waft an unwarranted innuendo in the direction of the factfinders. A hardball move from the other side often evoke a response of the same tenor.

Some violations are serious enough to attract the attention of the opposing counsel, but are too minor to justify intervention by the court or by a disciplinary body. These cheap shots may cause the other lawyer to make a note in her mental "black book" of lawyers to watch in the future. In a small bar, where the lawyers are likely to be meeting each other again and again, this kind of informal discipline can be very effective in maintaining high standards of conduct. Other seemingly trifling compromises with candor and integrity may bring down the wrath of the court. It often depends on the circumstances and upon who the judge is.

When all is said and done, the only way one can be sure is to follow the spirit as well as the letter of rules scrupulously. There are never circumstances which justify departing from truth, candor, integrity and honesty in dealings in court.

H. Ethical Lapses in Court

The following are illustrative of the many common situations in which trial lawyers sometimes depart from high standards of truthfulness and fair dealing in their courtroom activities. The history of trial advocacy has documented the infinite variety of ingenious fact presentations of which the human mind is capable. It has also recorded a tremendous variety of lapses in the level of candor and consideration that are necessary to the effective functioning of the trial process.

1. Improving the Testimony

Sometimes the lawyer may be tempted to resort to a number of ploys to try to "improve" the testimony as it is being given in court. On both direct and cross examination the lawyer has opportunity to improve the testimony given. For example, on direct examination:

Q. What happened next?

A. The car hit us.

Q. How did you feel when the car smashed into you?

The witness's "hit" has been transformed into the direct examiner's "smashed into" via her next question. And on cross examination:

Q. You hit the Clark car in the middle of the intersection, didn't you?

A. Yes.

Q. After you smashed into the Clark car, your car ended up on Mrs. Godard's lawn, didn't it?

Here the cross examiner has improved the answer in the body of his follow-up question.

Sometimes this kind of misquotation is the result of innocent mistake; sometimes it is an effort of the lawyer to get away with whatever she can. Whether innocent or intentional, misquotation of prior testimony in later questions is objectionable as a matter of trial management. Counsel's license to incorporate prior testimony in the predicate of later questions is limited to an exact repetition of the incorporated evidence. It cannot be improved.

Opposing Counsel. Objection! Counsel is misquoting the prior testimony of the witness!

The Court, Sustained. Counsel, please make sure that you quote the witness's exact words in your followup questions.

When done on purpose, misquotation in a later question of the previous testimony is likely to be a violation of the Code and Rules prohibitions on allusions to matters not in evidence. Such conduct is indefensible as a matter of trial ethics. 

A variation on this practice is the "When did you stop beating your wife?" question used on cross-examination. Such a question buries an assertion of the examiner with which the witness does not necessarily agree in the predicate of the question where it is not readily accessible to be denied.

Sometimes the buried assertion is subtle:

Q. Mr. Maxfield, after you ran over and killed Mr. Savage there on the sidewalk, you drove back out onto Jackson Street, didn’t you.

A. Well, I. . .

Opposing Counsel. Objection! That’s an unfair question, Your Honor. The implication is that Mr. Maxfield consciously ran over and killed the decedent, whereas his testimony is exactly to the contrary.

The Court. Sustained. Please rephrase your question, Counsel.

The court’s ruling here is a close call. The defendant did indeed run over and kill the decedent, but he claims that he did not see the decedent beforehand and did not even know that he had hit anybody until sometime afterward. The questioner, however, combines in the same breath the defendant’s running over and killing the decedent and his later driving back into the street. The later action was concededly conscious and intention. This juxtaposition raises the implication that both actions were conscious and intentional.

On the one hand, it can be argued that this is just good trial advocacy and helps the factfinder to assess the credibility of the driver’s claim of innocence. On the other hand is the question fair to the witness? Did he have a fair opportunity to address the damaging implication in his answer to the question asked? In ruling on a borderline question such as this, the trial judge may well be influenced by her overall appraisal of the quality of the lawyer’s tactics throughout the trial.

Leading and Prompting Witnesses on Direct Examination

On direct examination counsel are not supposed to ask leading questions which contain the information which the witness is supposed to supply. The rule against leading questions reflects a policy in favor of getting the information directly from the witness and in the witness's terminology so long as the lawyer can remain in control of the proceedings. A lawyer should be able to control a friendly or neutral witness sufficiently by the use of open questions that focus on the kind of information requested without providing the actual facts. Leading questions are usually permitted to refresh the witness's recollection when it has been exhausted.

The leading question or direct examination is one of the most common breaches of the rules of evidence and trial procedure. Objections to leading questions are frequently made and frequently sustained or overruled. Usually the objection is cured by rephrasing the question in proper form.

Leading questions can be abused. Some lawyers will ask a leading question in words carefully chosen by the lawyer to cue the witness as to the exact words to use in the answer. Even if the objection to the question is sustained, the witness has gotten the message. Appropriately primed, the witness answers the followup open question in the words selected by the lawyer.

Q. When the doctor told you about the possibility of a future operation, did you feel concerned and upset about that?

Opposing Counsel. Objection! Leading.

The Court. Sustained.

Q. How did you feel when the doctor told you about the possibility of a future operation?

A. I felt concerned and upset.

This kind of cuing of the witness will occur to some extent with all leading questions. It becomes a vice if the lawyer asks the objectionable leading question purposely to alert the witness. Although some trial lawyers actually will counsel this ploy if "you can get away with it", alerting the witness is in fact unethical. Deliberately violating the evidence and procedural rules governing leading questions in order to coach a witnes is a violation of Model Rule 3.4©), which prohibits lawyers from knowingly disobeying rules of court and of Model Code DR 7-106(A) of similar import.

Such tactics also should be avoided for another reason. Judges and factfinders also notice if this kind of pattern occurs more than a very few times. The credibility of both lawyer and witness will suffer.

3. Good Faith Questions on Cross Examination

On cross examination, typically all of the information is contained in the questions. The answers are usually merely affirmations or denials of the assertion contained in the cross examiner's question. This circumstance makes it possible for the trial lawyer to create factual misimpressions from questions alone regardless of the witness's answers. If a lawyer cross examining a witness asserts facts in a question which reflect adversely on the witness, the factfinders may credit the assertion and discredit the witness's denial. This is especially true if the assertion is detailed and positively stated.

Q. You and your buddies were drinking that afternoon at the Blue Goose, weren't you?

A. Eating and drinking.

Q. In fact, you each had 3 beers, didn't you?

A. No, we didn't. It was one or at the most 2.

Q. And you smoked marijuana earlier that afternoon, didn't you.

A. No, we didn't.

Even though the witness has denied the number of beers and the marijuana, the factfinders may be left with the impression that maybe the college age youths did drink several beers and smoke pot on the afternoon of the accident.

Because of the potential of cross examination questions themselves to waft innuendo to the factfinders, a cross examiner may only ask a leading question if he has a good faith basis for believing that it is true.

A good faith basis for a cross examination question is just that. The lawyer must have some reason for believing in good faith that the fact asserted is true. It need not be a certainty, but it must be more than a guess or suspicion.

A good faith basis is not the equivalent of a control device. It is possible to have a good faith basis for believing that facts are true without having any usable device to require the witness to admit them. On the other hand, if the cross-examiner possesses the ability to “prove up” any relevant assertion made in cross-examination, he has complete protection against any charge of lack of good faith basis for the question.

Asking questions on cross examination without a good faith basis violates the rules which regulate trial procedure and is a breach of trial lawyer ethics. Disciplinary Rule 7-106©)(4) states that a lawyer may not

(1) State or allude to any matter that he has no reasonable basis to believe is relevant to the case or that will not be supported by relevant evidence.

(2) Ask any question that he has no reasonable basis to believe is relevant to the case and that is intended to degrade a witness or other person.

Model Rule 3.4(e) contains a similar prohibition.

Cross examination questions posed without a good faith factual basis are likely to encounter vigorous objection and to be dealt with firmly by the court.

Opposing Counsel. Objection! Lack of good faith basis for the question. May we be heard at sidebar?

The Court. Come to sidebar.

Opposing Counsel (at sidebar). Your Honor, there is no good faith basis for that question. There is not a shred of evidence of any suspicion of drugs in this case. The unfair prejudice is clear. We request a curative instruction.

Cross-Examiner. Your Honor, who knows. These are young college kids. Maybe they did have some pot.

The Court . Objection sustained.

(to the cross examiner) Watch it counsel.

(to the jury) Ladies and gentlemen, you are to disregard that last question entirely and are to draw no inference from it whatsoever.

This also is the kind of violation that is sometimes not caught and punished. That does not make it any less unethical.

A variant on the "no good faith basis" question has the lawyer holding some kind of paper as he puts the damning question to the witness. For instance, assume in the foregoing line of questioning the lawyer was holding and looking at something which looked like some kind of official report form.

Q. Well, didn't you tell the police that you had been drinking and smoking marijuana earlier that afternoon?

A. No, we didn't.

Despite the denial, the factfinders are left with the misimpression that some official police report has recorded admissions by the witnesses that he and his associates were drinking and using drugs. Yet the paper in the hands of the lawyer could be a mockup. Or it could be the real police report, but without any mention of the drinking or drugs.

This kind of escalation of a misimpression without a good faith basis is a serious ethical breach. It is hard to excuse as unintentional. If detected, it can subject the lawyer to discipline.

Use of a fake prop to create a false impression without any good faith basis can be contrasted to the use of a prop as a control device for facts known or believed by the lawyer to be true. Sometimes a lawyer will ask questions which the lawyer believes are true and should be admitted by the witness while holding a paper which resembles the witness's deposition or statement in hand. Even if the paper does not support all of the assertions which the lawyer believes are true, the witness may be afraid to fabricate if he believes that the lawyer has in hand the "goods" to impeach or discredit him. In that context, some deception of the witness in the aid of the disclosure of the truth may be permissible.

Tricks in Court

Lawyer stories and trial anecdotes occasionally record instances in which a lawyer used an in-court trick or deception to win a case or even uncover the truth. A famous example involved a defense counsel’s substitution of a handwriting exemplar before cross-examination of the prosecution’s handwriting expert. The unknowing expert continued to insist on cross-examination that the bogus exemplar matched the handwriting of the perpetrator of the crime. Disclosure of the stratagem resulted in the acquittal of the defendant. It also resulted in the suspension of the successful lawyer. 

Another trick sometimes employed to confuse an identification witness is to substitute another person, similarly dressed, for the defendant or other person to be identified in court. It can be argued that such a stratagem merely tests the accuracy of the identification, but such a ploy can also be seen as a shoddy misuse of the lawyer’s role in court.

The line between deception to force the truth and deception to create a misimpression is a very narrow one. Tricks can backfire. In case of doubt, the better path is right down the middle.

5. Ethical Problems of Objections

Counsel's right to state an objection in the middle of her opponent's presentation can be misused. The proper purpose of an objection is to seek a ruling from the court on an issue of evidence or trial procedure. The objection process, however, allows counsel to interrupt the opponent's presentation and comment on the quality of the evidence. If counsel uses this license for an improper purpose, a breach of ethics may be involved.

Sometimes an examination or cross examination can acquire a sort of momentum which seems to contribute to the effectiveness of the presentation. An objection, even if not well founded, can break up this momentum and throw the other lawyer or the witness off-stride. The value of an interruption in the opponent’s presentation might properly motivate a lawyer to lodge a well founded objection, but a legally baseless objection cannot be justified by the desire to break up the other side's presentation.

Some lawyers use objections to cue the witness. If the witness seems to be straying into a dangerous area on cross examination, an objection is sometimes used --improperly– to warn the witness of an impending peril.

Q. Mr. Borak, Exhibit 6 is a picture of the corner of Wood and Vale, is it not?

A. Yes, it is.

Q. (showing picture to witness) And looking from the stop sign down Wood Street, you had a perfectly clear view on the day of the crash?

Opposing Counsel . Objection! That picture wasn't taken on the day of the accident. The foliage is different, there are no parked cars. You can't tell anything from that picture.

The Court. Overruled. You may answer.

A. Well, it wasn't really quite like that on the day it happened.

"Speaking objections" are sometimes used as mini-arguments addressed to the credibility of the evidence as well as its admissibility. Counsel should and often can argue objections to evidence "out in the pit" in front of the judge and within the hearing of the jury. However in making such arguments the lawyer must be sure to use words of art which do not involve comments on or summarizing of the evidence. It is one thing to say, “Objection! Irrelevant.” It is quite another to argue,

Opposing Counsel. Objection! What Mr. Mercer was able to see just before the accident has no bearing on what Mr. Maxfield could see. Mr. Mercer was at a different location and had been focussing on the place where the decedent lay in the darkness. It is , however, Mr. Maxfield's behavior that is at issue here. Mr. Maxfield had been driving down the street in a Ford Mustang, swerved to the right, and bumped up on the curb. There is no showing whatsoever that Mr. Maxfield ever was in a position to see what Mr. Mercer saw. Without such a showing this testimony is irrelevant, incompetent and immaterial.

If the purpose of making such a detailed argument on the objection is to blunt the effect of the anticipated evidence on the jury, the objection and argument are unethical. If it is important to discuss the facts in order effectively make the objection, the only appropriate choice is to approach sidebar and make the objection out of the hearing of the jury. If the other lawyer seems to be making a speaking objection it is permissible and sometimes necessary to interrupt and request that the objection be heard at sidebar.

Counsel. Objection! What Mr. Mercer was able to see just before the accident has no bearing on what Mr. Maxfield could see. Mr. Mercer was at a different location...

Opposing Counsel. Your Honor, may this objection be heard at sidebar?

The Court. Counsel will approach the bench.

If it is possible to anticipate the objection, either party may try to avoid interruption in the presentation by seeking an advance ruling in limine before the trial starts or during a recess.

6. Misuse of Voir Dire

"Voir dire," meaning literally, "to see to say" or "to see what he will say" is a term which is used in two senses in trial advocacy. Jury voir dire is a preliminary examination of the jurors or potential jurors during the course of jury selection at the beginning of the trial. In many jurisdictions the judge conducts the voir dire of prospective jurors. The questioning is usually limited to the prospective jurors' qualifications impartially to sit on the case. In some jurisdictions jury voir dire is conducted by counsel. In these jurisdictions voir dire often is the important first lawyer-juror interaction and is used by effective trial lawyers to commence the process of teaching and image building that is the trial.

Despite its importance in those jurisdictions in which it is still in widespread use, jury voir dire is not discussed in this book. Trial lawyers practicing in jurisdictions which lawyer voir dire of the jury panel is permitted should consult some of the growing body of literature on that subject.

The term "voir dire" as used in this book means an opportunity given to the opposing counsel to interrupt an ongoing witness examination to ask questions on a limited preliminary issue usually involving admissibility of evidence. Voir dire is not a matter of right. It may be permitted in the discretion of the court. A lawyer who plans to object to a question or to the admissibility of evidence may request the opportunity to voir dire when the objectionable question is asked or the proposed exhibit is offered.

Q. Doctor, what is your opinion as to the percentage of permanent impairment suffered by Mr. Cluney as a result of the car crash?

Other Lawyer. Objection! May we have a brief voir dire, Your Honor?

The Court. Yes, you may.

The purpose of the voir dire is to elicit facts which have not yet come out in the witness's testimony which are helpful to the pending objection. The pending examination is interrupted to permit these facts to be brought out at the time of the objection. The request to voir dire contains an implicit representation that the lawyer has a good faith basis for believing that the witness may have knowledge of facts that, if established, may support sustaining the objection.

Sometimes there is a temptation to request voir dire when there is no real hope of getting the objection sustained. Counsel may be aware, however, of something which might diminish the impact of the anticipated testimony or exhibit. Waiting for the direct to be completed and for cross examination will give the testimony a long time to sink in before it can be assailed. If the opposing lawyer uses voir dire to make the compromising point on the spot the effect on the presentation will be more immediate. And if the presentation seems to have some momentum, an interruption is always welcome to the opponent.

Use of voir dire as an early mini-cross examination or as an interruption of the opponent's presentation is a violation of the ethical prohibitions against intentional violation of procedural rules. It is also the kind of cheap shot that is noticed by the judge and bty opposing counsel. Misuse of voir dire on one occasion may make it difficult for the lawyer to obtain permission for voir dire in the future.

7. Lawyer Commentary and Expressions of Personal Belief

The lawyer’s conviction of the rightness of her cause is an essential component of an effective presentation. How can someone expect factfinders to credit an image being created for them unless the creator makes it very clear that she herself believes in the image as well. A sense of the personal conviction of the presenter is essential to the success of any presentation.

At the same time, explicit statements of a lawyer’s personal opinion of the rightness of a position, the guilt or innocence of a defendant, or the credibility of a witness are improper and unethical.

Counsel (in summation). Men and women of the jury, when all is said and done, I know that you will believe, as I do, that the defendant could not have committed this crime. He is simply not the kind of person who would ever take the life of another human being.

Opposing Counsel.Objection! Your Honor, Counsel is expressing a personal belief in the outcome of this case.

The Court. The objection is sustained. Members of the jury, please disregard any statement by counsel of his personal belief in the guilt or innocence of the defendant. You may proceed, Counsel.

The ABA Code and the Model Rules both condemn such statements. According to DR 7-106©)(1) and 7-106©)(4) a lawyer may not assert personal knowledge of facts in issue or a personal opinion of justness of a cause, the credibility of a witness, or the guilt or innocence of a defendant. Model Rule 3.4(e) forbids the same conduct.

In the heat of trial it is easy for a lawyer unintentionally to violate this rule. It is easy for the lawyer’s implicit confidence to become explicit without the lawyer even being aware of it. Improper expressions of personal opinion are particularly likely to slip into the final windup of a closing:

Counsel. Mr. Maxfield told you like it is. He didn’t try to hide anything. His testimony had the ring of truth. When all is said and done, I think we have to believe Mr. Maxfield’s testimony.

or

Counsel. I don’t think you have any choice, Ladies and Gentlemen. I can’t believe that the evidence that you have heard can convince you beyond a reasonable doubt that Bob Maxfield had any intention of hurting or killing anyone.

A lawyer can generally avoid unintentionally expressing a personal opinion during trial by avoiding the use of the first person singular in trial discourse. The “I” is what injects the lawyer expressly into the proceedings. Very rarely does the first person singular enhance a trial presentation, and frequently it can detract. The persona of the lawyer is best felt as the self-effacing presenter of the image. It is that which is being presented, not the present that matters. If a lawyer adopts a habit of never using “I” during a trial, the risk of an improper personal opinion will be reduced to nothing.

Counsel. Mr. Maxfield told you like it is. He didn’t try to hide anything. His testimony had the ring of truth. When all is said and done we have to believe Mr. Maxfield’s testimony. Do you have any choice, Ladies and Gentlemen? The evidence that you have heard cannot convince you beyond a reasonable doubt that Bob Maxfield had any intention of hurting or killing anyone.

A particularly sensitive area for lawyer comment is the turthfulness of parties and witnesses. The rules specifically forbid explicit expression of a lawyer’s opinion of the credibility of a witness. At the same time it is permissible and often important to argue and even attack the credibility of a witness on summation. Sometimes the line between permissible argument and impermissible injection of the lawyer’s own opinion is a hazy one. For instance, insome courts an argument such as

Counsel. Alex Hood was lying. He lied when he told us that he was not at the Suisse Chalet. He lied again when he said that he didn’t even know why he was in Portland,. His past record of convictions shows that he is a liar.

Would be improper prosecution summation. Courts condemning such argument usually refer to the rules prohibiting lawyer opinion on witness credibility. It may seem illogical to apply this rule to argument that do not expressly state the lawyer’s opinion or belief. On the other hand, and express accusation of laying is seldom made unless the accuser really believes it. Such an accusation may by its very nature invoke the personal credibility of the accuser and make it an issue. While the sensitivity of courts on this issue varies, it is safe to say that trial lawyers should be cautious about direct accusations of untruthfulness in their questioning and argument.

This brief chapter cannot catalog all or any large portion of the ethical temptations faced by lawyers presenting fact cases at trial. When does an aggressive presentation become misrepresentation? When does an argument go too far? These questions trouble lawyers with every trial.

Trial lawyering is not a game. Winning is important, but it is not the only thing. No degree of dedication to a client’s short term interests can justify conduct that corrodes and undermines the legitimacy of the very process itself.

Although the official rules do not provide all the answers, a trial lawyer must abide scrupulously by their letter and their spirit. Sometimes in the heat of battle it is hard to remember chapter and verse. But if the trial lawyer presents as fact only that which she believes is true, if the trial lawyer uses the licenses granted her scrupulously for the purposes for which they were intended, if she creates no trick or deception in the process, she will not go far wrong.

_______________________

Of the many ethical strictures affecting the presentation of evidence at trial, perhaps the most well known is the dilemma faced by a lawyer whose client proposes to testify in court to facts which the lawyers knows are not true. For a current discussion on the way lawyers attempt to manage this conflict, see Freedman and Smith, Understanding Lawyers’ Ethics, , 2 nd Ed. (Lexis 2002), especially pp..153-189.

See ABA Code DR 4-101, ABA Rule 1.6 .

See ABA Code DRs 5-101 - 5-107, ABA Rules 1.7 - 1.11.

See ABA Rule 3.4 (c); ABA Code, DR 7-106(C)(4)) .

See ABA Code DR 7-101 - 7-102, 7-106 and ABA Rules 3.1 - 3.5.

ABA Code DR 7-107(A)(6)

Id., DR 7-106(B)(2).

Model Rule 3.4 (e).

ABA Code DR 7-106(B)(1), Model Rule 3.3(a)(3)..

ABA Code DR 7-102; Model Rule 3.3 .

See M. Freedman, Understanding Lawyers' Ethics 109-141 (1990).

ABA Code DR 7-102(6); Model Rule 3.4(b).

Nix v. Whiteside, 475 U.S. 157 (1986).

But see Board of Bar Overseers v. Dineen, 481 A.2d 499 (Me. 1984) (constitutional rights of accused did not excuse deliberate use of the accused's perjured testimony by his counsel.)

See ABA Code Dr 7-106, EC 7-25; Model Rule 3.4.

See In re Metzger, 31 Hawaii 929 (1931).