Ethical Behavior and Cross-Examination

Mark Neil, NAGTRI Program Counsel

NAGTRI Program Counsel

Unethical and improper conduct by a lawyer, particularly in court, has a certain direct and negative impact on the lawyer in particular and the profession in general. When the lawyer represents the government, that impact is even greater. No matter what may be expected of private attorneys, the public expects and deserves the highest ethical and professional conduct of those lawyers who represent their interests.

As advocates, lawyers often recite the adage of the need and even obligation to zealously represent their client. This zeal, many times portrayed to great exaggeration in fiction for the purpose of glamorizing the hero, demonizing the villain or for simple gratuitous entertainment, can occasionally be found in excess within real courtrooms. Forgotten, in those instances, may be that such zeal is meant to be tempered and practiced under the rules of our adversary system.[1]

Usually, the lawyer’s responsibilities between representation of his or her client and actions as an officer of the legal system can be reconciled harmoniously. We can assume that if the opponent is well represented, our own zealous advocacy is balanced by the opposing lawyer’s skill and zeal.[2] But, by its very nature, trial advocacy creates conflicts between those competing responsibilities. In the heat of litigation it is all too easy to be blinded to our professional obligations by the light of winning for our clients and even ourselves. We need to be reminded, from time to time, that the law’s procedures should be used only for legitimate purposes and not to harass or intimidate others, demonstrating at all times our respect for the legal system.[3] There is a need to strike a balance between remaining professional, courteous and civil and the zeal to advocate within the boundaries set by law.[4]

The Basic Rules

Quite often heard in continuing legal education ethics presentations is the need for and requirement of candor toward the tribunal and fairness to opposing counsel.[5] Rule 3.3 highlights a number of situations in which this duty of candor exists, including those which preclude a lawyer from knowingly making a false statement or failing to correct a false statement of material fact or law or offering false evidence.[6]

The obligation of the lawyer is to make his or her client’s case in a persuasive manner, and he or she must do so with candor and honesty. It is not that the lawyer must present the evidence impartially, but that the tribunal not be misled by false law, facts or evidence.[7]

Similarly, when dealing with opposing counsel, a lawyer may not “in trial, allude to any matter he or she does not reasonably believe is relevant or not supported by admissible evidence, assert personal knowledge except when testifying as a witness, or state a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused.”[8]

As an advocate, the trial lawyer’s role is to present the evidence and make the argument so his or her client’s case can be decided according to law. That presentation should be made without abusive or disruptive behavior. Advocacy in a professional and firm manner is far more effective than that done by antagonism or high drama.[9] Yet, the conduct of lawyers seems to be self-destructive and counter-intuitive.[10]

Trial lawyers are obliged to recognize and preserve the right to a fair trial while diligently representing their clients, applying legal principles to the facts. The concepts of fairness and professionalism are not mere formalities. Rather, they are “an atmosphere in which justice can be done.”[11]

A Heightened Standard for Government Lawyers

Are the rules different for government lawyers? Certainly differences exist in the rules as well as their application in criminal prosecutions. Prosecutors are bound by special rules applicable only to them.[12] They may not take unfair advantage of a defendant and are bound to seek justice, not just a conviction. This is set out perhaps most famously in Berger v United States.[13] The zealous prosecutor in Berger overstepped the bounds of professional responsibility and “… was guilty of misstating the facts in his cross-examination of witnesses; of putting into the mouths of such witnesses things which they had not said; of suggesting by his questions that statements had been made to him personally out of court, in respect of which no proof was offered; of pretending to understand that a witness had said something which he had not said and persistently cross-examining the witness upon that basis; of assuming prejudicial facts not in evidence; of bullying and arguing with witnesses; and in general, of conducting himself in a thoroughly indecorous and improper manner.”[14]

The same expectations of fairness and justice apply to all government lawyers. Government lawyers have a greater responsibility to the public and the common good than do private attorneys to their clients. It is the public trust that sets them apart.[15]

How It Plays in Court

In the setting of a trial, perhaps the greatest role a lawyer sees him or herself in is that of the cross-examiner. Therein, perhaps, lays a great risk of improper or unethical conduct.

Assuming that an opponent’s expert witness testifies on direct examination to a matter wholly irrelevant to the case at hand without objection, the lawyer may not then cross-examine the witness on the irrelevant matter on the basis of the opponent having opened the door. The lawyer may not gain an advantage to which he or she was not otherwise entitled.[16]

Nor may the cross examination be without factual basis. In an attempt to counter a claim of mental illness, and rather than call his own expert, one lawyer attempted to discredit the opposing counsel, his expert witnesses and the mental health profession in general. The cross-examiner insinuated that the expert had fabricated the diagnosis and conformed his testimony to the defense theory. Later, during closing argument, the lawyer argued the expert “created a syndrome…to justify the defendant’s action.” The court found this to be intentional and egregious misconduct for making claims with no good faith basis, using trial tactics not supported by admissible evidence and engaging in conduct prejudicial to the administration of justice.[17]

Playing by the Rules

Where then is the ethical line? Here, the rules of evidence and the rules of professional responsibility follow the same line of reasoning. The purposes of the rules of evidence are to administer proceedings fairly…“to the end of ascertaining the truth and securing a just determination.”[18] Generally the rules of evidence require there to be an evidentiary good faith basis for questioning. As the rules of professional conduct also require honesty and candor,[19] they would not prohibit what the rules of evidence allow.[20] Accordingly, it would seem that a close following of the rules of evidence and their purposes will best serve to avoid unethical and improper conduct.

We must, therefore, avoid improper suggestions and insinuations and base cross-examination on a good faith evidentiary basis, striking only fair blows, not foul ones.[21]



[1]Preamble, ABA Model Rules of Professional Conduct, at ²2

[2] Id, at ²8.

[3] Id, at ²5.

[4] Id, at ²9.

[5] Rules 3.3 and 3.4, ABA Model Rules of Professional Conduct.

[6]Rule 3.3(a), ABA Model Rules of Professional Conduct.

[7] Comment to Rule 3.3, ABA Model Rules of Professional Conduct.

[8] Rule 3.4, ABA Model Rules of Professional Conduct.

[9] See Comment to Rule 3.5, ABA Model Rules of Professional Conduct.

[10]“The public and many members of the Bar complain openly about what they perceive to be a deterioration in standards of conduct by attorneys. From a lawyer's conviction for laundering drug money to simple discourteous conduct, damage to the reputation of lawyers as hardworking, fair-minded professionals is being done all too often by members of their own profession.” Coordinating Duties to the Court, Client and Other Attorneys and Third Parties, Virginia State Bar Professionalism Course 2013-2014.

[11]Preamble, Code of Pretrial and Trial Conduct, American College of Trial Lawyers, 2009.

[12] See Rule 8.3, Model Rules of Professional Responsibility.

[13] Berger v United States, 295 U.S.78 (1938)

[14] Id, at 84.

[15]Steven K. Berenson, Public Lawyers, Private Values: Can, Should, and Will Government Lawyers Serve

the Public Interest?, 41 B.C.L. Rev. 789 (2000), http://lawdigitalcommons.bc.edu/bclr/vol41/

iss4/3

[16] Ethicsline 1994-2, Los Angeles County District Attorney’s Office, 1994, See also, People v Williams, 213 C.A.3d 1186, 1189 at n. 1 (1989), People v Gambos, 5 C.A.3d 187, 192 (1970).

[17]Presentation on The Ethics of Supervising Lawyers and Nonlawyer Staff Lecture by James J. Grogan, National College of District Attorneys, National Prosecution Ethics Symposium, 2005, citing In re Thomas J Zawada, 208 Ariz. 232, 92 P.3d 862 (2004).

[18] Rule 102, Federal Rules of Evidence.

[19] Rules 3.3 and 3.4, ABA Model Rules of Professional Responsibility.

[20] John Nivala, Fair Process and Fair Play: Professionally Responsible Cross-Examination, Widener L. Rev. Vol. 14:453, January 2009, citing In re Tichenor, 129 P.3d 690 (Or. 2006).

[21]Berger, supra at 88.

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