Can counterpart&#39;s counsel be cross-examined on the validity/merit of their arguments, or only witnesses? In court, a legal representative may be conducting the case and calling witnesses and cross examining the other side's witnesses. Are these representatives &quot;sworn in&quot; under oath? As they may also deliver submissions of legal arguments, if not, perhaps, statements of fact, can they also be cross-examined by the counterparty?
In the united-states, attorneys are almost never placed under oath. Their statements -- whether they are assertions of fact or legal arguments -- are not evidence, and they are not subject to cross examination. There are limited circumstances in which an attorney would be competent to present actual evidence. In such cases, the attorney would be sworn in as a witness and subject to cross examination, but the attorney would likely also be disqualified from acting as an attorney in such a situation under Model Rule 3.7.
You can't normally ask the court to "recuse" an attorney, because "recusal" is normally restricted to the judge leaving the case. The more common term is moving to disqualify opposing counsel.
Defendants cannot switcheroo whenever they want. There are good reasons why this is almost never done. The lawyer in any of these scenarios is violating an ethical duty of candor to the tribunal, if it is done without court permission (which is unlikely to be granted), even if the client suggested or insisted upon the idea. The lawyer would be responsible for his or her client's actions by cooperating in it, rather than calling out his client in open court over the objections of the client to prevent the switcheroo from working, as the lawyer would have an ethical obligation to do. I would not really consider this to be a gray area. The relevant ethical rules and the related official commentaries to them are quite clear, even if they are not absolutely perfectly clear. Those rules create an affirmative duty of an attorney to prevent his or her client from misleading members of a tribunal (either a judge or a jury or both). Cooperating with this scheme could (and likely would) result in professional licensure related sanctions ranging from a private censure to disbarment for the lawyer, just as it did in the linked 1994 case. Also, while a "not guilty" verdict was entered in the 1994 case, the prosecution would have a good chance of success if they demanded that the judge declare a mistrial, and also a good chance of avoiding double jeopardy limitations in this situation, because the mistrial arose from the actions of the defendant trying to bring about the situation. On the other hand, if this trick worked so well that the prosecutors came to the conclusion that their primary witness linking the defendant to the crime was wrong and that the defendant was not actually the person who committed the crime, the prosecutors would have an ethical duty to not attempt to prosecute the individual whom the prosecutors now believed to be factually innocent (the analysis is actually a bit more complex than that, but that is the gist of it). The defendant and the attorney could (and likely would) also each be held in direct, punitive contempt of court by the judge for this conduct, allowing them to be summarily punished by imprisonment or a fine to an extent similar to a misdemeanor violation, on the spot, without a trial other than an opportunity to explain themselves to the judge in a sentence or two each, since it would be conduct in violation of the good order of the court and disrespectful of its rules and decorum conducted in the actual courtroom in the presence of the judge. Each could easily end up spending several months in jail on the spot for that stunt and perhaps a $1,000 fine each, if the judge was sufficiently displeased. There would be a right to appeal this contempt of court sanction, but the contempt of court punishment would almost surely be upheld on appeal in these circumstances. In a case where the criminal defendant faces extremely severe sanctions if found guilty, such as the death penalty or life in prison, and the defense attorney was a self-sacrificing idealist or close family member of the criminal defendant, one could imagine the defense attorney and client deciding that the professional and contempt citation sanctions were worth being punished with, in order to save the life of the criminal defendant, if they also were convinced that this trick would work so well that the prosecutors would be persuaded of the criminal defendant's innocence sufficiently to not insist on retrying the criminal defendant in a new trial. This would be somewhat analogous to an intentional foul in basketball, but with much higher stakes. But, this would be an extraordinarily rare situation in court, because the punishment for this "intentional foul" in the courtroom are much more severe, and because the likelihood of it producing a beneficial result is much smaller. It isn't hard to understand why a successful switcheroo feels morally justified. It prevents a witness whose testimony would have been much less reliable than it actually would have been from being used to convict a criminal defendant who might conceivably be factually innocent. And it might be very hard to discredit the testimony of that witness in any other way in order to prevent a wrongful conviction of the criminal defendant. Eye witness misidentifications are one of the leading causes of wrongful convictions, and are especially common in death penalty cases because jurors are "death qualified" making them more pro-prosecution than a typical jury. Preventing innocent people from being convicted of crimes is one of several important values of the criminal justice system, and this is the instinct that probably motivated the dissents in the professional misconduct process in the 1994 case. But, the court system also strongly values candor on the part of attorneys, and likewise values not having the court systems be used to trip up witnesses who may sincerely think that they are telling the truth even if they are mistaken about the accuracy of their testimony, in a deceptive manner. In this situation, the latter candor consideration usually prevails, because the rules prohibiting this kind of conduct and scheme, which admits no "moral justification" or "necessity exception", are quite clear. In the same vein, a prosecuting attorney can be sanctioned (and has been on at least one occasion in Colorado) for not being truthful in communications to third parties, even when the lies are used to peacefully defuse a potentially deadly hostage situation. For attorneys, the duty of candor and truthfulness really knows no exceptions. Cops, in contrast, however, are allowed to lie in many circumstances to secure confessions or stop criminals.
This is a question of civil procedure more so than law. The customs and practices of civil procedure are established by legal precedent, not laws made by legislatures. In general, a witness can answer a question however they want as long as it is responsive to the question. Litigators will attempt to bully a witness into certain types of answers, but this is not "illegal" nor is it "illegal" for witnesses to craft their answers as they like. As for yes-no bullying there are two general cases: (1) The question is factual. If the questioner asks a purely factual question, like "Did you go to the factory on that Tuesday?" then a yes-no answer can be compelled. If the witness tries to explain why he went to the factory, or something, then he can be cut off, because he is being unresponsive. (2) The question is hypothetical. If the question is hypothetical or suppositional, then the witness can reject the question. For example, if the question, "You told your boss that you hated your wife, isn't that right?" In this case the witness can answer, "I reject the question, the prosecutor is putting words in my mouth." or can say "I resent the implication." or "That does not accurately reflect what happened." or whatever. Any time a question "paints a picture" or establishes something hypothetical and simply asks the witness to agree with the fantasy scenario, the witness can refuse to answer, or can answer with a counter scenario which they consider to be more accurate. I would add that in case (2) where a questioner tries to paint a false scenario, it is a risky move, because it opens the door for the witness to say whatever they want. For example, imagine this exchange in the courtroom: Prosecutor: "You told your boss that you hate your wife, isn't that right?" Witness: "What actually happened is..." Prosecutor: "That is a yes or no question, answer yes or no." Witness (to judge): "Your honor, the question mischaracterizes the conversation I had with my boss, I want to explain what actually was said." Judge: "The witness may proceed with his answer." Prosecutor: "I withdraw the question." Defender: "The prosecution has opened the door, let the witness answer." Judge: "The witness will answer the question." So, now the witness has permission to answer however he likes, and the prosecutor has blundered by making a vague question that created the situation where that was possible. The main thing a witness has to do is not try to say irrelevant things or try to add information beyond what was asked for, in that case the questioner can cut them off.
Issues of strategy rest with counsel, not the client. Thus, in the situation you posit, the lawyer is not required to follow the client's desires. One might observe, however, that a competent lawyer will avoid the conflict entirely by addressing the issue before accepting the client. If the client is firm in wanting to direct the lawyer's negotiation or litigation strategy, and the lawyer is unwilling to do so, the lawyer should decline to take on the case. When I practiced, prospective clients who wanted to run things were very politely declined and shown the door. I don't see anything unethical about accepting such conditions from a prospective client, but the attorney isn't required to do so, and can decline the employment.
First off, the concept of &quot;the whole truth&quot; is legally undefined. It cannot possibly mean &quot;everything that you know that is connected to this question&quot;, since otherwise a witness would be required to drone on and on for hours. Second, there is no way to determine what percentage of witnesses are not &quot;telling the whole truth&quot;. We can be fairly certain that when a guilty accused takes the stand, there is a good chance that he is not telling the whole truth, and the oath does not compel you to testify against yourself. Even if there was some clear legal definition of &quot;the whole truth&quot;, there is typically no way to know what the actual facts are, to know if a witness failed to say something that was part of &quot;the whole truth&quot;. The promise part of the oath is irrelevant, that is, the requirement is not to &quot;keep your promise&quot;, it is to not perjure yourself. Every jurisdiction in the US has a statute that makes it a crime to commit perjury. At the federal level, the law is 18 USC 1621, which applies to anyone who has &quot;taken an oath&quot; promising to testify truly, and punishes the witness if he &quot;willfully and contrary to such oath states or subscribes any material matter which he does not believe to be true&quot;. The landmark ruling Bronston v. US, 409 US 352 clarified the obligation of witnesses vs. the duty of interrogators, when it comes to not providing information desired by the interrogator. The court ruled that the perjury statutes does not apply to a witness's answer that is literally true, but unresponsive, even assuming the witness intends to mislead his questioner by the answer, and even assuming the answer is arguably &quot;false by negative implication.&quot; A perjury prosecution is not, in our adversary system, the primary safeguard against errant testimony; given the incongruity of an unresponsive answer, it is the questioner's burden to frame his interrogation acutely to elicit the precise information he seeks. This was a classical &quot;not the whole truth&quot; case. The exchange was as follows, where the accused was testifying in bankruptcy proceedings: Q. Do you have any bank accounts in Swiss banks, Mr. Bronston? A. No, sir. Q. Have you ever? A. The company had an account there for about six months, in Zurich. The fact is that Bronston used to have a personal account in a Swiss Bank, which he did not reveal. His answer could be considered misleading because he only answered part of the question, as it pertained to the company (but not him personally). The crux of the court's ruling is that it is the responsibility of the attorney conducting the interrogation to notice that he did not answer the question asked, and to insist on a response that also covers personal accounts. This established the &quot;literal truth&quot; doctrine for perjury conviction: if what you say is literally true, the testimony is not perjurous. As a later court (DeZarn) commented, because a nonresponsive answer, by its nature, requires speculation by the fact-finder as to what the answer “implies”, there cannot be a finding beyond a reasonable doubt that the answer is untruthful. Clinton successfully relied on this defense with respect to certain of his literally-true testimony. One tweak on this is US v. DeZarn, 157 F3d 1042, where a literal-truth defense was set forth but rejected by the court. The accused was asked about a party that was allegedly a fundraising event. His testimony was that it wasn't a fundraising event for the governor (in fact it was), and his defense came down to the fact that the prosecutor asked about a party in 1991, had earlier referred to it as a &quot;Preakness Party&quot; (which the governor had held previously), and asked about fundraising &quot;at that activity&quot;. DeZarn's claim was that he thought the prosecutor was asking about a party in 1990 (which was a &quot;Preakness Party&quot;, with no fundraising). The prosecutor was in error in previously calling it a &quot;Preakness Party&quot;, but was correct in identifying that there was a party (with fundraising) at the governor's house, in 1991 time. The wording of DeZarn's testimony was, simply &quot;I don't know... No... No&quot;: these are responses that have no literal truth value taken on their own, and can be judged only in relation to what question was asked (whereas Bronston's testimony was literally true on its own). DeZarn's conviction was upheld because he could not have been confused about which party was being referred to, and what the actual question was; moreover, in saying just &quot;No&quot;, he gave no sign that his response was a partial answer to the question. The DeZarn court did not clarify matters, leaving it at the conclusion that a perjury inquiry which focuses only upon the precision of the question and ignores what the Defendant knew about the subject matter of the question at the time it was asked, misses the very point of perjury: that is, the Defendant's intent to testify falsely and, thereby, mislead his interrogators. This does not clearly distinguish DeZarn from Bronston, but that could be remedied by a more precise theory of the linguistic relationship between the question(s) asked and the literal answer – Bronston said enough that a reasonable person could detect that only part of the question was answered, whereas the testimony &quot;No&quot; gives no overt sign that the testifier had privately re-written the question to be something like &quot;Was there fundraising at a Preakness Party in 1991&quot;, as opposed to &quot;at that activity&quot;. The court relied on a subjective &quot;sniff test&quot; for distinguishing responsive from non-responsive testimony, so I would say that they simply did not draw the bright lines that could have been drawn (which would be based on better distinguishing &quot;implies&quot; versus &quot;asserts&quot;).
Misstating the truth is not perjury Perjury is deliberately lying under oath to gain a material advantage. For the situation you describe: You might be wrong and they actually do live where they say they do they might be wring and they genuinely think they live where they say they do, being wrong is not perjury it’s unlikely to administrate info in the form actually carries the penalty of perjury, it probably isn’t testimony unless it will positively and substantially affect the outcome of the case in their favour, it isn’t material You lack standing to interfere in the case in any event If this were brought to the attention of the court the most likely outcome would that it would just be corrected.
A lawyer is obligated to accurately state the law as stated in the jury instructions in closing argument (and also not to make a clear and deliberate misstatement of the facts presented at trials, and also not to express personal knowledge of the facts based upon anything other than what the jury has seen). But a certain amount of poetic license is allowed so long as the closing argument is not so misleading, as a whole, that it is likely to lead the jury astray. In this case, the prosecutor is alluding, with poetic license, to the idea that an aggressor or interloper can't assert self-defense. You can't &quot;look for trouble&quot; and then be shielded by that doctrine. A more full quote from that prosecutor makes that more clear: you lose the right to self-defence when you’re the one who brought the gun, when you’re the one creating the danger, when you’re the one provoking other people I have no opinion concerning whether his statement does or does not cross the line. I'm not sufficiently immersed in the case, and don't have enough context from having heard the closing arguments as a whole, to have a confident opinion on that point. If there is an acquittal we'll never know. If there is a conviction and appeal and this is an issue raised on appeal, we might find out. Opposing counsel has a right to object in closing argument if it goes too far, and appealing an argument that a closing argument is objectionable is challenging unless it is preserved with a timely objection at the time. Particularly if the prosecution makes a misstatement in their initial closing, rebutting it in the defense closing may be more effective than objecting. But, if the prosecutor makes a misstatement in a rebuttal period to which the defense can't offer a corrective statement, an objection may be wise in order to preserve an issue for appeal.