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Volume 8, Number 3
Ethical Behavior and Cross-Examination
Mark Neil, 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.
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.
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.
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.
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.”
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.
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.”
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.
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.
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.
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.
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.”
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.
the Public Interest?, 41 B.C.L. Rev. 789 (2000), http://lawdigitalcommons.bc.edu/bclr/vol41/
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