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Trial: Direct Examination: Do's and Don'ts

This Guide, prepared by the Robert M. Spire American Inn of Court, presents resources for conducting a direct examination.

Perjury

A. Model Rule 3.3 – A lawyer shall not knowingly ... (3) offer evidence that the lawyer knows to be false.  If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonably remedial measures, including, if necessary, disclosure to the tribunal.  A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter, that the lawyer reasonably believes is false.

B. Comment 6 – “If the lawyer knows that the client intends to testify falsely or wants the lawyer to introduce false evidence, the lawyer should seek to persuade the client that the evidence should not be offered.  If the persuasion is ineffective and the lawyer continues to represent the client, the lawyer must refuse to offer the false evidence. … The prohibition against offering false evidence only applies if the lawyer knows that the evidence is false.  A lawyer’s reasonable belief that evidence is false does not preclude its presentation to the trier of fact.  A lawyer’s knowledge that evidence is false, however, can be inferred from the circumstances.”

C. Comment 8 – The prohibition against offering false evidence only applies when the lawyer “knows” the evidence is false.  The lawyer may present evidence even if the lawyer has a “reasonable belief” that the evidence is false.

D. Comment 9 – A lawyer may refuse to offer evidence that the lawyer “reasonably believes” to be false, except in the case of the testimony of a criminal defendant.  The lawyer must honor the criminal defendant’s decision testify unless the lawyer “knows” that the testimony will be false.

E. The Criminal Defense Practitioner and Client Perjury, Wendy L. Patrick, The Bencher, July/August 2011 (discussing ethical issues that arise when a criminal defense attorney knows that his/her client intends to commit perjury)

F. Nix v. Whiteside, 475 U.S. 157 (1986) (criminal defendant’s right to counsel does not include right to counsel who will assist in client’s perjury; constitutional right to testify does not extend to testifying falsely).

G. U.S. v. Midgett, 342 F.3d 321 (4th Cir. 2003) (defense counsel’s belief that client’s testimony is false was not sufficient basis to refuse assistance where defendant had consistently maintained the truthfulness of his testimony).

Creighton Resource

Offering or Referring to Evidence that Is Irrelevant or Inadmissible

1. Neb. Ct. R. Prof. Cond. 3-503.4 - A lawyer shall not:

(c) knowingly disobey an obligation under the rules of the tribunal …

(e) in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence …

2. Clearly, referring to facts that have no basis in the evidence is prohibited.  What about evidence that is based in fact, but the lawyer knows or believes is inadmissible?

3. If the lawyer “knows” that the evidence is inadmissible because the court has already ruled on the evidence, further attempts to introduce the evidence to the jury could result in disciplinary proceedings.  See e.g., In re Conduct of Eadie, 36 P.3d 468 (Or. 2001) (sanctioning attorney for incompetent representation of client where attorney repeatedly and intentionally mentioned insurance coverage at trial where court had granted motion in limine excluding such evidence and had repeatedly admonished the attorney not to mention insurance coverage).

4. What if the lawyer is of the opinion that the evidence is inadmissible (for example, obvious hearsay testimony)?  Can the lawyer offer the evidence to see if opposing counsel will object?  The ethics are surprisingly unclear.

5. “Raise or Waive” Theory - Some scholars take the position that an attorney should offer whatever evidence they can “get away with”.  These scholars believe that, under the adversarial system, it is the opponent’s duty to object to inadmissible evidence and if the opponent does not object, then the objection is waived.  Therefore, the proponent is justified in offering evidence - even if he believes it to be inadmissible - in the hopes that the opponent will not object.  See, Daniel D. Blinka, Ethics, Evidence and the Modern Adversary Trial, 19 Geo. J. Legal Ethics 1 (2006).
 
6. Others take the position that the Model Rules of Professional Conduct require an attorney to reasonably assure himself that the evidence he will offer is relevant and at least arguably admissible.  See¸ Lawrence Pivnick, Offering Objectionable Evidence – Does an Adversary’s Failure to Object Make the Practice Right?, Tennessee Bar Journal, Vol 46, No. 12 (Dec. 2010) (Online at www.tba.org).

7. Even if such conduct is ethical, consider the practical implications: “A judgment may be reversed for misconduct of counsel in bringing inadmissible evidence to the attention of the jury, unless such misconduct has been subsequently cured.”  75 Am. Jur. 2d Trials § 418, Introducing inadmissible, incompetent, irrelevant, or excluded evidence (2011); see also, 75 Am. Jur. 2d Trials § 416, Asking improper questions of party or witnesses (2011).

8. In a criminal case, referring to inadmissible evidence could result in prejudicial error that could overturn a conviction, even where the court sustains an objection to the evidence and instructs the jury to disregard the evidence.  See e.g., Killingsworth v. State, 374 So.2d 221 (Miss. 1979) (overturning defendant’s rape conviction because of prejudicial error resulting from prosecutor displaying defendant’s jacket during questioning and implying jacket had marijuana in the pockets, which questions were irrelevant to the rape charge).

9. Also consider:

a.  ABA Standards for Criminal Justice.

(1) Standard 4-7.5(b) - Defense counsel should not knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.

(2) Standard 3-5.6(b) - A prosecutor should not knowingly and for the purpose of bringing inadmissible matter to the attention of the judge or jury offer inadmissible evidence, ask legally objectionable questions, or make other impermissible comments or arguments in the presence of the judge or jury.


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