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Lawyers, ethics and testimony

Clifford's Notes, Chicago Lawyer February 5, 2013

By Robert A. Clifford

Jimmy Stewart, one of my favorite actors, plays a small-town criminal defense lawyer in "Anatomy of a Murder." He represents an Army officer arrested for killing a bartender in a trailer park. The self-admitted perpetrator said he did so out of passion because the barkeep allegedly raped and beat his wife, but there was no evidence beyond a black eye to prove the claim.

In what may be the movie clip most often shown in law schools on preparing witnesses, the lawyer visits his client in jail and tries to determine the best defense as evidence of a possible extra-marital liaison between the two emerges. The lawyer suggests temporary insanity may have been the cause and the Army lieutenant thinks it is a good idea when he suddenly can't recall shooting the bartender.

I won't give away how the courtroom drama unravels everyone's motives, but I will tell you that what the lawyer does in the movie violates the provisions of the Model Rules of Professional Conduct (MRPC) regarding the improper coaching of a witness.

MRPC 3.4 states that a lawyer may not "counsel or assist a witness to testify falsely" and the related comments state that this includes not improperly influencing a witness. A lawyer cannot even hint to a witness to testify untruthfully -- part of the finesse of the jail cell conversation between the lawyer and his client in "Anatomy of a Murder."

The lawyer also might have violated MRPC 1.2(d): "A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed course of conduct with a client and may counsel or assist a client to make a good faith effort to determine the validity, scope, meaning or application of the law."

In real life, Ibarra v. Baker, 338 F.Appx. 457 (5th Cir.2009) involved lawyers accused of "coaching" witnesses in a Texas case. A civil case was filed against police officers after the plaintiffs were acquitted of criminal charges. Attorneys retained an expert who, with the attorneys' approval, provided a fact witness with a highlighted, marked-up copy of the trial transcripts in the underlying criminal matter who even came to his deposition with a page of notes that closely paralleled the expert's report, including reference to a "high crime area" and "retaliation" and then began using those terms in his deposition testimony.

The court held that the lawyers improperly influenced a witness to testify in conformity with a new theory and upheld the trial court's sanctions against them.

In Ibarra, the court found that the key is whether the suggested word choice materially alters the person's testimony. "The appearance of these terms in the litigation would not be noteworthy if they merely repackaged the witnesses' prior testimony, neither adding nor subtracting anything substantive." Id., 338 Fed. Appx. at 466.

A lawyer also may be held responsible for violating Model Rule 3.4(b) regarding the methods a trial consultant may use in the course of preparing a witness. Rule 5.3 further addresses the use of non-lawyer consultants and provides that a lawyer "shall make reasonable efforts to ensure that the (non-lawyer) person's conduct is compatible with the professional obligations of the lawyer."

The Restatement (Third) of the Law Governing Lawyers, Section 116, Comment b, (2000), states, "Witness preparation may include rehearsal of testimony. A lawyer may suggest [a] choice of words that might be employed to make the witness' meaning clear. However, a lawyer may not assist the witness to testify falsely as to a material fact."

The Restatement goes on to state that a lawyer is allowed to prepare a witness to testify by:

∙ "discussing the role of the witness and effective courtroom demeanor;

∙ "discussing the witness' recollection and probable testimony;

∙ "revealing to the witness other testimony or evidence that will be presented and asking the witness to reconsider the witness' recollection or recounting of events in that light;

∙ "discussing the applicability of law to the events in issue;

∙ "reviewing documents or other physical evidence that may be introduced; and

∙ "discussing probable lines of cross-examination that the witness should be prepared to meet."

A lawyer should counsel a witness to be respectful of the process. A witness' demeanor, language and dress should also reflect that respect.

I find that sometimes videotaping a witness -- so that he can see how he appears and then playing it back for him before his deposition -- may help.

What about the anxious witness who wants to volunteer too much information during cross-examination? The witness must be told to be truthful, but that there is no need to be helpful to the other side. It is an adversarial proceeding. Answer the questions very specifically without offering more than what is asked.

Many of these issues will be raised in a free Continuing Legal Education program that my firm will offer on Feb. 21 titled, "Ethics of Witness Preparation for Deposition and Trial." To register, go to CliffordLaw.com.

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