Is there any case law on counsel perpetrating ruses on witnesses? This question relates to an earlier question I asked here, but I am looking for a broader answer citing case law. I would like to know if there is any case law relating to the legal limitations on allowing counsel to conduct a ruse against a witness for the purposes of testing their evidence. I am particularly interested in situations where the judge is not aware of the ruse (until it is revealed) and so the ruse also temporarily misleads the court. There are many examples of this that occasionally occur in fictional legal dramas, such as the example below. I include this only as an example, but I am interested in any situation where counsel perpetrates a ruse on the witness, and the judge is misled by that ruse in the process. Presumably this raises the potential for counsel to get in trouble for misleading the court, but I would like to know if there is any case law testing the limits of what is an allowable ruse and what goes too far. An Example: In the movie A Few Good Men, defence counsel is examining a witness who is trying to hide the existence of a military flight. Defence counsel tells the court that he will call airmen working ground-crew that day as rebuttal witnesses. He then continues the examination. Neither the witness, nor the judge, are aware that his rebuttal witnesses are a ruse. Judge Randolph: I don't understand. You're admitting evidence of a flight that never existed? Defence Counsel Kaffee: We believe it did, sir. Defense will be calling Airmen Cecil O'Malley and Anthony Rodriguez. Prosecutor Ross: These men weren't on the list. Defence Counsel Kaffee Rebuttal witnesses, Your Honor, called specifically to refute testimony offered under direct examination. ... then later ... Prosecutor Ross: Airmen Cecil O'Malley and Anthony Rodriguez, what exactly were these guys going to testify to? Defence Counsel Kaffee Unless I'm mistaken, they were going to testify under oath that they had absolutely no recollection of anything. My question: Is there any case law (or other sources of law) testing the limitations on situations where counsel conducts a ruse against a witness, and the judge is also unaware of the ruse, and is therefore also (temporarily) misled?
The broader question is a bit tricky and has many dimensions. It is probably easiest to go over some of the ground rules. There are probably other particular issues that could come up, but those are the only ones that occurred to me at the moment. Caveats and Disclaimers Also, it is worth noting that the considerations that apply are different in criminal v. non-criminal trials, in the U.S. v. other countries, U.S. state courts v. federal courts, in jury trials v. bench trials, and in the civilian v. military justice systems ("A Few Good Men" is a quasi-criminal U.S. court-martial case under the military justice system without a true jury.) At least to start with, I will limit my answer to civilian criminal jury trials in the United Sates. At least in practice and interpretation, the United States has lower expectations of lawyers at trial than in many other common law countries. Prosecutors have higher duties to not be deceptive than criminal defense lawyers. There is a greater duty for defendants to disclose information that could be harmful to their case in civil cases (especially in state courts) than in criminal cases. The ethical duties of lawyers regarding candor in bench trials are more complicated because there are some facts that in a jury trial, a judge is allowed to know and consider when making rulings in the case, but a jury is not allowed to know. Military justice is its own thing with far less formal rules of procedure and deeply different basic assumptions than in trials in civilian courts. For example, in a military trial, the prosecutor, the defense lawyer, the defendants and the judges are all soldiers who owe heightened duties to the same government and the military mission, relative to participants in a trial in a civilian court, that can take priority over the duties a lawyer owes to his client, or duties of judges to respect due process. A prosecutor is not permitted to advance frivolous and groundless positions for any reason. Some Notable Rules Opening Arguments and Offers Of Proof You are not allowed in an opening argument to a jury in a civilian criminal trial, or in an offer of proof to a judge in support of the validity of questions you would like to ask, to state that you will present evidence later in the case that you do not believe in good faith that you will introduce. You are not required, however, to identify all evidence that you plan to introduce in your opening statement. But, if you say you will offer up evidence later in the case believing that you will introduce it, and then decide later on that you don't need to and want to offer up that evidence after all, you aren't required to do so. For example, in a case that I tried not so long ago, both sides had expert witnesses. The other side's expert witness testified first and we got him to say everything that we wanted our expert witness to say in cross-examination. We were also worried that our expert witness might say something that would hurt our case because he understood some complicated facts in the case better than the other side's expert witness who didn't realize that those facts were an issue. So, when it was my turn to present the expert witness (who was supposed to have bee the last witness in the case) that we'd said in opening arguments would testify for several hours, we told the court, "we planned on calling Mr. So and So as an expert witness, but have concluded that his testimony would be cumulative so we conclude our case now," after which the Court immediately moved on to closing arguments which we knew that we'd have to present right away, but the other side expected to have several more hours to think about while our last expert witness testified consistently with his previously disclosed expert witness report for a couple of hours. What the lawyer did in "A Few Good Men" (which was in substance an "offer of proof" to provide authority for him to ask certain questions) came close to the line of what is permissible in terms of saying that you will introduce evidence when you don't actually plan to do so, but probably didn't cross the line because he didn't say what they would testify to if called. This would be bad form, and it might undermine the lawyer's credibility with the judge not just in this case, but in the long run, but a lawyer could decide as this one did, that this downside was worth it. Statements About Lying Witnesses Neither the prosecution lawyer nor the defense lawyer is allowed to say that they know that a particular witness was lying. This is because this turns the lawyer into a witness and puts the lawyer's credibility at issue. This is also because a statement like that can be used to signal to the jury that the lawyer knows something based upon evidence that the jury didn't hear (perhaps because they weren't allowed to hear it) that they should consider when weighing credibility. Numerous felony convictions are overturned every year because a prosecutor told a jury that a witness was lying. These statements are prohibited without regard to whether they are true, false or debatable. Of course, a lawyer can say, "as you evaluate the credibility of the first witness you heard you should consider the fact that he will avoid a life in prison term and receive a $1,000,000 life insurance policy payout and that the first witness is blind and yet told you the exact color and texture of the sweater that the defendant was wearing even though the first witness doesn't claim to have ever touched that sweater." The lawyer simply isn't allowed to connect the dots and conclude for the jury that therefore, the first witness is lying. Arguments Based Upon False Inferences As a general rule, in a civilian criminal jury trial, a defense lawyer is allowed to ask questions in cross-examination and make arguments in closing arguments that are based upon inferences from the evidence that was presented that the defense attorney knows to be false, so long as the factual testimony presented is not known to be false. For example, the defense lawyer could argue in closing arguments, "the prosecution did not rule out the possibility that Fred Heinz was present at the murder scene, so they haven't ruled out the possibility that Fred Heinz rather than my client committed the murder," even if the defense lawyer happens to know that Fred Heinz was actually on vacation in another country at the time of the murder. Similarly, a defense lawyer could ask a witness on cross-examination, "Isn't it true that you hide the murder weapon at the requests of your boyfriend and didn't see my client at all that evening?", even if the defense lawyer knows that his client's girlfriend asked the witness to hide the murder weapon and not the witness's boyfriend. The witness of course, would simply answer "no, that isn't true.", but the defense lawyer's question would put the possibility into the heads of the jurors, possibly leading them astray. (The second example is a little more complicated than that, because the defense lawyer's question is only allowed if there is some foundation established in earlier evidence to show that the boyfriend asked the witness to hide the murder weapon. If not, the prosecutor could object to the question and the judge wouldn't allow the witness to answer it. Whether a defense lawyer can ethically ask a question knowing that it violates the rules of evidence hoping that the prosecution won't object to it and knowing that even if the question is overruled by the judge that it will give the jurors a hint about a possibility that is actually known by the defense lawyer to be false, is somewhat of a gray area.) Also, a lawyer is absolutely allowed to ask cross-examination questions not knowing what the answer will be, even though that is risky and usually considered to be bad trial practice, and a lawyer is allowed to ask questions that limit a witness to telling an incomplete story that sounds bad, even though the whole story, if told, would not sound so bad, and even if the lawyer knows that the other side won't get an opportunity to tell the whole story for some reason later on. For example, suppose that the lawyer asks a witness, "you just told the jury that you saw this fight happen?" to which he responds, "yes." "And, you just have normal vision don't you?" "Yes." "But, isn't it true that you were three miles away from the scene of the fight when it happened." "Yes. Now that sounds like it really discredits that witnesses testimony, even if the lawyer asking the question and the witness and the prosecutor and the judge all know that the witness saw the fight occur though binoculars from the top of the Empire State Building. Normally, this could get corrected with rebuttal testimony. But, suppose that the defense lawyer offering this cross-examination asked the questions in a dull voice like it was a tedious detail and noticed that the prosecutor had been distracted looking at texts on his phone while the defendant was cross-examining the witness and so didn't notice this line of questioning, and therefore was likely to say, "no further questions, your honor" when the judge asked him if he had any rebuttal testimony he'd like to offer from this witness. In that situation, the defense lawyer hasn't acted improperly in causing the jury to make a misleading inference from the testimony, and the defense lawyer is allowed in closing arguments to heavily emphasize that the key prosecution witness who says he saw the fight admits that he was three miles away when it happened, knowing that this argument is disingenuous. Ultimately, a defense lawyer's job is to get the best result possible for their client without violating any relevant ethical rules which are specifically and intentionally relaxed for them relative to other lawyers in some respects regarding advancing frivolous and groundless positions. A prosecutor, in contrast, has a duty to advance only claims that the prosecutor believes to be supported by probable cause, to not hide exculpatory evidence, and to seek justice rather than having a duty to try to convict and get a maximum sentence without regard to guilt or innocence (in principle even if not all prosecutors act this way). Testimony And Evidence Know To Be Intentionally False A lawyer is not permitted to let a witness or his client provide testimony to the court that he knows to be perjured. If his witness starts to commit perjury on the stand, the lawyer has to immediately stop the examination of that witness and discuss the problem with the judge. In many circumstances, the lawyer must correct a knowingly false statement that his witness has provided to the court even if he only learns that the statement was knowingly false after that witness is off the stand if the lawyer learns of this before the jury renders its verdict (or for that matter within the time allowed for post-trial motions). Gray areas come in when the lawyer doesn't know that the testimony is true or false, and knows that someone is under oath, but also knows that they aren't a very credible person and that the person sometimes lies in important situations, and indeed avoids knowing the truth. Similarly, gray areas come into play when the lawyer knows that the witness is likely to be mistaken in the testimony that is offered, but knows that the witness is sincerely doing his best to tell the truth on the stand as he understands it to be. Likewise, a lawyer is not allowed to introduce evidence that he knows to be doctored or forged (i.e. claiming that it is authentic), unless the lawyer explains in the course of introducing the evidence that it is a doctored or forged document and is offering it to show that somebody doctored or forged the document. And, if the lawyer later discovers that the document was doctored or forged before the jury renders its verdict (or within the time allowed for post-trial motions), the lawyer has to tell the court that this happened. Pre-Trial Disclosures While the prosecution has a duty to disclose all exculpatory evidence in its possession prior to a trial in a civilian criminal case (something called Brady disclosures), the defense's duty to disclose what evidence it will offer, or what evidence it knows exists, is extremely narrow. There are a couple of kinds of defense strategies (like an alibi defense or a self-defense defense or certain disputes regarding expert testimony) which the defense must disclose that it plans to use at trial, prior to the trial. But, the defense has much more latitude to call surprise witnesses and to introduce surprise evidence at trial than the prosecution does.
It's hard to say, given how little we know about the case and the information, also what you mean by &quot;corrupted&quot; and what your evidence is. Here are two hypothetical cases that illustrate different possibilities. 1: The accused instructs the lawyer to tell the judge &quot;My client has an alibi against the robbery charge: at the time, he was murdering his brother&quot;. Lawyer deems this to be a bad argument because murder is punished more severely than robbery. The lawyer is doing his job, protecting the interest of the client. No crime or civil wrong. 2: The accused instructs the lawyer to tell the judge &quot;My client has an alibi against the robbery charge: at the time, he was in church&quot;. The lawyer doesn't understand that this is exculpatory evidence, thinking &quot;they never asked about church, there's no point in me raising this issue&quot;. The client can probably sue for incompetence. There are possible criminal charges possible, for example if the lawyer is working for The Mob he might be involved in an actual criminal conspiracy.
Yes, One Can In the United States, one may assert the Fifth Amendment privilege not to testify or otherwise give information that might tend to implicate the speaker in a crime. This is true in any court proceeding, civil or criminal, whether the person asserting the privilege is an accused, a witness, or a party to a civil case. It may be asserted in a Grand Jury or trial proceeding. One may also assert the privilege under police interrogation, or in an administrative proceeding. One may also assert it when testifying before Congress, a state legislature, or any local legislative body. One may also assert it when testifying before a government agency, such as the Interstate Commerce Commission. Asserting the privilege is often informally called &quot;pleading the Fifth&quot;, although strictly speaking &quot;pleading&quot; is something that only an accused does (as in &quot;I plead not guilty&quot;). The availability of the privilege in civil cases has been true at least since the Saline Bank case of 1828 (see below). The privilege is not available when no criminal prosecution is legally possible, such as when the statute of limitations has expired, or when the law invoked has been held unconstitutional or otherwise invalid, and no other valid law applies. Thus, if an authorized government official (usually a prosecutor) offers a grant of immunity, the privilege is no longer available on matters covered by the grant, and the person asserting it must then testify on such matters. The privilege may be asserted when the person doing so is actually guilty, or when the person is not guilty, but has a reasonable belief that the statements asked for might be used against the speaker in some current or future criminal proceeding. A person who has been tried for a crime nut had the case end in a mistrial, or a dismissal without prejudice, could still be re-tried for that accusation, and so may assert the privilege. Any assertion must be clear, but need not use a specific form of worfs. The standard form advised by many lawyers is I decline to answer on the grounds that the answer might tend to incriminate me. but less formal wording such as 'I take the Fifth&quot; will also serve to assert the privilege. When the privilege is asserted in a court case, the Judge may question the person asserting it in private, off the record, to determine whether the fear of incrimination is reasonable. Case Law Saline Bank (1828) In the case of United States v. Saline Bank of Virginia, 26 U.S. 100 (1828) Chief Justice Marshall wrote: It is apparent that, in every step of the suit, the facts required to be discovered in support of this suit would expose the parties to danger. The rule clearly is that a party is not bound to make any discovery which would expose him to penalties, and this case falls within it. [This case was cited in Murphy, below] Saline Bank was a civil suit by the US treasury in Federal curt against an apparently unincorporated bank, but a Virginia state law of the time made it a crime to operate or participate in a bank without a proper charter. Thus the Marshall Court held that a witness in a civil suit could assert the privilege against the future possibility of a state criminal proceeding. Kastigar (1972) In Kastigar v. United States, 406 U.S. 441 (1972) the US Supreme Court wrote (footnotes omitted): It [the privilege against self-incrimination] can be asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory, and it protects against any disclosures that the witness reasonably believes could be used in a criminal prosecution or could lead to other evidence that might be so used. This Court has been zealous to safeguard the values that underlie the privilege [Citing the Miranda case in a footnote]. (Kastigar was a case in which people subpoenaed before a Grand Jury asserted the privilege, were granted immunity, and still refused to testify, alleging that the grant of immunity was not enough to revoke the privialge. They were held in contempt, appealed, and the Court held that the immunity was sufficient to allow the witnesses to be compelled to testify. In the court of its opinion, the Kastigar Court reviewed the history of the privilege and of immunity statutes in some detail.) Murphy (1964) In Murphy v. Waterfront Comm'n, 378 U.S. 52 (1964) the US Supreme Court wrote: We have held today that the Fifth Amendment privilege against self-incrimination must be deemed fully applicable to the States through the Fourteenth Amendment. Malloy v. Hogan, 378 U. S. 1. ... Petitioners were subpoenaed to testify at a hearing conducted by the Waterfront Commission of New York Harbor concerning a work stoppage at the Hoboken, New Jersey, piers. After refusing to respond to certain questions about the stoppage on the ground that the answers might tend to incriminated them, petitioners were granted immunity from prosecution under the laws of New Jersey and New York. [Footnote 2] Notwithstanding this grant of immunity, they still refused to respond to the questions on the ground that the answers might tend to incriminate them under federal law, to which the grant of immunity did not purport to extend. [This case was cited in Kastigar above.] McCarthy v. Arndstein (1924) In McCarthy v. Arndstein, 266 U.S. 34 (1924) (footnotes omitted, boldface added) The US Supreme Court wrote: The case is now before us on rehearing, granted in order to permit argument of the proposition, not presented by counsel before, that the privilege against self-incrimination does not extend to an examination of the bankrupt made for the purpose of obtaining possession of property belonging to his estate. ... The contention now is that the privilege against self-incrimination ought to have been disallowed because, under the Constitution, it does not extend to the examination of a bankrupt in a bankruptcy proceeding. The government insists broadly that the constitutional privilege against self-incrimination does not apply in any civil proceeding. The contrary must be accepted as settled. The privilege is not ordinarily dependent upon the nature of the proceeding in which the testimony is sought or is to be used. It applies alike to civil and criminal proceedings, wherever the answer might tend to subject to criminal responsibility him who gives it. The privilege protects a mere witness as fully as it does one who is also a party defendant. It protects likewise the owner of goods which may be forfeited in a penal proceeding. See Counselman v. Hitchcock, 142 U. S. 547, 142 U. S. 563-564. The government urges more strongly a narrower contention. It claims that the constitutional privilege does not relieve a bankrupt from the duty to give information which is sought for the purpose of discovering his estate. It asserts that, in England, such an exception to the common law privilege prevails, and that the exception had been established there prior to the Declaration of Independence. Whatever may be the rule in England, it is clear that, in America, the constitutional prohibition of compulsory self-incrimination has not been so limited.
This is largely congruent with* the doctrine of laches. The basic idea, under common law, is that you can lose rights by failing to assert them. This is generally important for many reasons, but specifically in the case of appeals: The argument should have been brought before the trial court. Justice is not a game, but it's important to recognize that the party trying to raise the argument had an opportunity to do so already. They have given up their right to raise this argument, and extending them the privilege of doing so is (for the following reasons) not good for the system. Courts of appeals are typically not well-equipped to evaluate factual evidence. It is not their area of expertise. Witnesses or evidence may be less available. It's just not practical to try to adjudicate factual issues on appeal, most of the time. If anyone could get an appeal by bringing new factual arguments, then everyone would do that. You'd bring your strongest argument before the district court, and then if that fails, bring the second strongest before the circuit court. That way, you get an extra trial. This is inefficient. Allowing factual arguments on appeal would encourage attorneys and their clients to strategically bring different facts before different courts. This kind of forum-shopping is harmful because it has little to do with who has the stronger overall case, and more to do with who has the better lawyer. * "Congruent with" is not the same as "an instance of"; this rule is not formally an application of laches. It just happens to share the same justification.
First of all, to clarify some numbering, HR 4635 (107th Congress) was not actually passed. The language was passed as part of HR 5005, becoming Public Law 107-296, and this provision now appears at 49 USC 44921. The exact text of this provision is: A Federal flight deck officer shall not be liable for damages in any action brought in a Federal or State court arising out of the acts or omissions of the officer in defending the flight deck of an aircraft against acts of criminal violence or air piracy unless the officer is guilty of gross negligence or willful misconduct. The language makes it clear that this is only referring to civil liability. So, if the officer is defending the flight deck, and they are sued for damages resulting from their actions, the plaintiff will not win (assuming the law is correctly applied). But this law says nothing about whether or not they can be prosecuted for a crime. In any case, the officer in your example does not appear to have been defending the flight deck, so this law wouldn't apply at all. In your example, the officer's defense against a murder charge would probably be based on defense of others. There is a discussion on Justia. It seems that a key question would be whether shooting the unruly passenger was proportional - was there a reasonable fear that the passenger was actually going to kill someone?
Yes. It will hold up in court. IMHO, there is no difference in the admissible portions of the two testimonies. "Few minutes" vs. "One hour" is immaterial The difference between "a few minutes" and "one hour" IMHO is immaterial given: the witness was unconscious and say, between 45 and 60 minutes would match both descriptions of the time interval. What other people saw and heard is hearsay Testimony about what other people saw and heard (with a few notable exceptions) is hearsay and not allowed into evidence because it is generally unreliable and not subject to cross-examination. So after the rejection of the hearsay portions, there is no difference in the admissible portions of the two versions. Qualification By "hold up in court," I mean it will be allowed as evidence. The weight and veracity of the testimony would be determined by the (judge or) jury after cross-examination.
Only if counsel challenged the point during the trial Difficult as it might be, you can’t allow the judge to be wrong during the trial without calling them on it: very, very politely. For example, there is case law that says you can’t successfully appeal because the judge was asleep through significant parts of the trial; appeals courts are clear that you have to wake them up. If you don’t then you accepted that you didn’t want the judge to hear the parts of the case they slept through, it’s your choice how you present your case. Frankly some cases are better if the judge misses half the evidence. Of course, if the error of law makes it through to the oral or written judgement then you can appeal even if you didn’t take issue with it.
Is an attorney permitted to ask questions like those in either paragraphs two and three? Yes. That does not mean that they will be considered relevant or even appropriate, though. Is the witness allowed to decline to answer such questions for reason of irrelevance, or other grounds? Yes. In general, though, it would be safer for the witness to state an objection (be it on the basis of irrelevance, confrontational, asked &amp; answered, as to form, etc.) and answer the question nonetheless, rather than simply refusing to answer it. By simply declining to answer a question regardless of the basis for refusal, the witness risks affording a crooked lawyer the opportunity to falsely generalize that the witness was uncooperative. One exception to the idea of "object-and-then-answer" is where some privilege is the alleged basis for the objection, since the substance of the answer could be such that it amounts to waiving the privilege even where that privilege is legitimate. The witness may also opt to answer the lawyer's irrelevant questions even without stating an objection. Some questions are so obviously irrelevant, dull, or stupid that a failure to raise an objection will be inconsequential. In such scenarios, raising objections can only lengthen the deposition transcript and make it harder to read. For a real-life example of deposition with plenty of dull questions, take a look at the transcript (which I split in parts one, two and three) of the 4-hour deposition where I myself was the witness (you can download the case file, almost in its entirety, from this page). You will notice that I did not raise objections during the deposition, the main reason being what I explained above: To avoid giving the opposing counsel an opportunity to falsely accuse me in court of being uncooperative during deposition. Furthermore, addressing the crook's futile questions (1) projects transparency and helps on the witness's part, and (2) precludes a false &amp; misleading impression as if the witness had something to hide. After all, wrongdoers are the ones most interested in eluding testimony in ways very similar to this other deposition. The reason of being of objections is precisely that the law "is aware" that, as a matter of fact, lawyers indulge in all kinds of abusive questions when taking sworn testimony --be it in trial or at deposition-- of a witness.