Can a lawyer subject the court to a (temporary) ruse for a legitimate purpose? This question is about the legality of a possible defence tactic that might be used in a criminal trial. It is a variation on things you see in lawyer movies fairly commonly. Suppose that a criminal trial occurs, and the defendant is not already in custody when the matter is heard (e.g., it proceeds by summons, or else he was out on bail). There is a witness to the crime and it is expected that she will identify the defendant in court as the perpetrator of the crime. Now, suppose that the defence lawyer has reason to believe that this witness is actually not able to genuinely identify the defendant (as distinct from someone who looks a bit like him), but expects that the witness wants to assist the prosecution, and so she will nevertheless confidently point to whoever is in the defendant's chair and say that she is certain he is the perpetrator. So the defence lawyer attends court with a person who looks like the defendant, but is not the defendant. The lawyer can prove that this pretend-defendant was nowhere near the crime (e.g., he was overseas at the time). He sits this pretend-defendant in the defendant's chair and proceeds with the matter roughly as normal (while taking any necessary instructions from the actual defendant remotely by some surreptitious means). He is careful not to explicitly say that this is the defendant, but he acts in a manner that ensures that the judge and prosecutor will assume that this is the defendant. Suppose now that the prosecution witness testifies, and as expected, she identifies this pretend-defendant as the perpetrator of the crime, and says that she saw him clearly, and she is absolutely certain it is him. The defence lawyer keeps questioning this, but she is resolute. At this point the lawyer reveals the charade, thus destroying the testimony of the witness and exposing her as either dishonest, or at least unreliable. He brings in the real defendant for the remainder of the proceedings. Now, obviously this is a matter where the defence lawyer has perpetrated a ruse on the court, and has thereby misled the court, albeit temporarily. However, this is done in the pursuit of a legitimate purpose --- namely, to test the evidence of a prosecution witness and expose the unreliability of that witness. Also, to be clear, the defence lawyer will reveal the true defendant at this point in the trial regardless of the witness's testimony. If challenged on this, the lawyer could potentially argue that this kind of temporary ruse does not really constitute "misleading the court", since he will ultimately reveal the true defendant, though that might be a weak argument, since there is certainly a temporary misleading occurring in the ruse. My questions: Firstly, is there any practical impediment that would make it impossible to implement this tactic? Assuming it is possible, what (if any) legal impediments would there be to using this tactic in a criminal matter? In particular, would the defence lawyer (and possibly also the defendant) be exposed to legal danger for misleading the court? Is there any case law where something like this has occurred (i.e., lawyer misleading court temporarily in order to test evidence of opponent)? Note: I have not specified a jurisdiction for this question, but I am interested in the answer in any Western jurisdiction. If the answers depends on jurisdiction, then it would be interesting to know whether this is something that would generally be prohibited. I am aware that there is a large body of case law on the legality of ruses by police against suspects, but I am not aware of any case law on ruses against the court by a lawyer. Update: For what it's worth, this exact tactic was just used by Saul Goodman in an episode of Better Call Saul. In that show, the actual defendent is seated in the gallery of the courtroom with the other spectators, and a similar-looking person is sat at the defendent's table. The result in the episode was a mistrial, and a dressing down to the lawyer from the judge, but no other sanction.
It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question.
The evidence will almost certainly be inadmissible And, of course, you will be disbarred and never work as a lawyer again, you might also go to jail for attempting to pervert the course of justice. Whether the person is convicted or not will depend on the strength of the other evidence the state has. In the notorious case of Lawyer X, Nicola Gobbo was acting as a barrister for a number of Melbourne underworld figures while simultaneously acting as a police informer. A number of those convicted have successfully appealed their convictions on the basis that they didn’t get a fair trial. In their judgement on AB (a pseudonym) v. CD (a pseudonym); EF (a pseudonym) v. CD (a pseudonym) [2018] HCA 58 the High Court said: But where, as here, the agency of police informer has been so abused as to corrupt the criminal justice system, there arises a greater public interest in disclosure to which the public interest in informer anonymity must yield. EF's actions in purporting to act as counsel for the Convicted Persons while covertly informing against them were fundamental and appalling breaches of EF's obligations as counsel to her clients and of EF's duties to the court. Likewise, Victoria Police were guilty of reprehensible conduct in knowingly encouraging EF to do as she did and were involved in sanctioning atrocious breaches of the sworn duty of every police officer to discharge all duties imposed on them faithfully and according to law without favour or affection, malice or ill-will. As a result, the prosecution of each Convicted Person was corrupted in a manner which debased fundamental premises of the criminal justice system.
The prosecution chooses the order of its witnesses and must present all of its witnesses before the defense presents its witnesses, and the defense chooses the order of its witnesses. The parties can agree, with the judge's permission, to take a witness out of order (usually for the convenience of a witness who has limited availability on a relatively minor issue). But this is done far more often in civil cases than in criminal cases, because the defense wants to preserve its ability to argue that the prosecution failed to present evidence sufficient to prove its case beyond a reasonable doubt in its own case, which can be important in an appeal. If a defense witness is taken out of order, something that a defense witness says could inadvertently tip the balance by establishing some minor but mandatory element of some offense that the prosecution failed to include it its &quot;case in chief&quot;. For example, maybe the relevant statute requires that the defendant be over the age of eighteen to be guilty of a crime (e.g. statutory rape), and the prosecution forgets to ask a question about the defendant's age in their case in chief, so the prosecution fails to prove that element of the crime. If a defense witness taken out of order says that &quot;I've known the defendant since I went to his fifth birthday party in 1980.&quot;, that could be the difference between having the case reversed on appeal and affirming a conviction on that count. So the defense is reluctant to allow its witnesses to be taken out of order. After the prosecution has presented its &quot;case in chief&quot;, and the defense has presented its &quot;case in chief&quot;, the prosecution may then present rebuttal witnesses to the testimony of the defense witnesses, and often, the defense may then present rebuttal witnesses to the prosecution's rebuttal witnesses. After the prosecution completes its case in chief, the defense has the right, if it wishes to do so, to present no additional evidence whatsoever. In a criminal trial, the prosecution often presents many witnesses and the defense often presents far fewer witnesses, but that is not a hard and fast rule. Often the defense presents very little evidence for reasons similar to its reasons for not wanting to take a defense witness out of order. For example, suppose a prosecution witness on a key point is not very credible. Offering a defense witness on that point who is also not very credible could bolster the jury's opinion of the prosecution witness's credibility, or could simply help to corroborate that &quot;something&quot; definitely happened that was memorable when the crime was allegedly committed, even if their accounts are not identical.
In an adversarial legal system, the parties are responsible for framing the issues in dispute and adducing relevant evidence. The parties, and perhaps more importantly their lawyers, also have an obligation of candour to the court. Courts routinely accept unchallenged assertions because there are serious consequences for misleading the court, and the opponent (rather than the court which should remain neutral) is in the best position to investigate and prove any suspected dishonesty. It is a matter for the party commencing proceedings (plaintiff or prosecutor) to decide how the parties will be named. People often change their names, and may use multiple spellings. It is not uncommon for typographical or other errors to appear. Generally, it is in the interest of at least one party to name the parties &quot;correctly,&quot; ie. consistently with other government records that will be used to enforce any judgment, but a person's name is ultimately a formal matter that can be corrected if necessary. In cases of uncertainty, aliases can be specified, as occurred in Microsoft v McDonald (aka Gary Webb) [2006] EWHC 3410 (Ch). A person who is genuinely known by an alias (ie. the use of the alias is not part of an attempt to mislead the court) should use their &quot;real&quot; name in court, but could potentially conduct litigation using the alias without anybody noticing. However, court proceedings are public and this would not necessarily protect the person's identity. To achieve this, an anonymity order under CPR 39.2 is required, as explained in XXX v Camden London Borough Council [2020] EWCA Civ 1468 [13]–[22].
It depends on the jurisdiction, but generally speaking, this will not permit you to evade criminal responsibility. In Ohio, for instance, the complicity statute treats the conduct you're describing as equivalent to soliciting another to commit an offense or to aiding and abetting another in committing an offense: No person, acting with the kind of culpability required for the commission of an offense, shall do any of the following: (1) Solicit or procure another to commit the offense; (2) Aid or abet another in committing the offense; (3) Conspire with another to commit the offense in violation of section 2923.01 of the Revised Code; (4) Cause an innocent or irresponsible person to commit the offense. The penalty for complicity is the same as for the underlying offense, so you don't really get any kind of break for running your offense through an innocent party; you just get a pissed off witness who can testify against you.
It might or it might not be fraud. The outcome will depend on how the facts and evidence are interpreted at trial. A more general version of this question is: If two parties discuss and orally agree to X; then sign a contract that states they agree to Y, what are the parties bound to? X? Y? Or something else? In your version, X is a fraudulent statement. And Y is an obfuscated writing. One party will argue fraud. The other will argue not fraud on the basis that all the facts were disclosed in writing. The party alleging fraud will carry the burden of proof. The standard of proof will be preponderance of evidence (more than 50%). Generally speaking, written evidence outweighs oral evidence if not accompanied by substantiating facts. Substantiating facts could be: emails or other written correspondence, a prior history or pattern of making false claims to others regarding this investment, the respective behavior of the parties after the agreement was made or anything else that corroborates the oral testimony presented at trial.
If a person is wrongfully deprived of money (or something else of value) for a period, that is damage, even if the money is later repaid. The victim might have used the money in some profitable or advantageous way during the period when it was taken. But the victim need not prove exactly how s/he might have profited, it is enough to show that the victim was wrongfully deprived of something of value. Of course, there are other elements to fraud. There must have been a lie or deception, on which the victim reasonably relied. There must have been intent that the victim so relay. The deception must have been material and must have directly caused or led to the damage. (Or have gotten the Fraudster a benefit that would not have been provided had the victim known the truth.) But assuming that all the elements of fraud are proved, restitution, even full restitution with interest, does not excuse the fraud. However, as a practical matter, if offered full restitution on condition of a release or an agreement not to prosecute, many victims will choose to take it, preferring their money back, perhaps with interest, to a legal case, even a winning one.
Exactly the same thing that stops the same rogue lawyer from putting on a mask and robbing a bank. One is the crime of fraud and the other the crime of armed robbery but they are both crimes. People commit crimes all the time; that is why nearly 1 million people in the U.S. are in jail right now - some of them may even be in there for crimes they actually committed! Were your lawyer to commit this crime he may get caught or he may not; if he does he's going away for a long time and can never work as a lawyer again. So it's simply a matter of risk assessment; oh, and ethics