II. An Overview of Lawyers as Fact Witnesses

• Library: Professional Responsibility in Litigation (ABA) (2016 Ed.)

II. An Overview of Lawyers as Fact Witnesses

The advocate-witness rule is rooted in evidence law, but it is now a matter of professional responsibility, embodied in Model Rule of Professional Conduct 3.7(a).² Rule 3.7(a) provides that a lawyer "shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness," except in three instances.³ The three exceptions to this ban are (1) where the lawyer's testimony relates to an uncontested issue; (2) where the lawyer's testimony relates to the nature and value of legal services rendered in the case; or (3) where the lawyer's disqualification would work substantial hardship on the client.

The prohibition against lawyers testifying as witnesses in trials in which they also serve as advocates is principally intended to protect the fact-finder from confusion.⁴ For example, it may not be clear to jurors whether an advocate-witness's testimony is proof of some fact or the lawyer's analysis of the proof. The rule also protects the opposing party from unfair prejudice accompanying the lawyer's dual roles. After all, the act of taking an oath does not change the fact that the lawyer is an advocate and may be less than fully objective when testifying.⁵ Conversely, the act of taking the oath may serve to enhance the lawyer's credibility as an advocate in the jury's eyes. Furthermore, a lawyer testifying as a witness may explain evidence rather than offering it, unfairly influencing the jury in the process. Although these problems are most acute from the opposing party's perspective when the lawyer-witness will testify for her client, they exist even when the lawyer-witness may testify against her client, and the opposing party is right to complain in either instance.

Similarly, permitting a lawyer who is a witness to events at issue in a case to participate as an advocate at trial may create what some courts refer to as the "unsworn witness" problem.⁶ In such a case, the lawyer may be able to convey firsthand knowledge of relevant events without having to swear an oath or submit to cross-examination.⁷ That obviously places the opposing party at a disadvantage and impairs the fact-finding process.⁸

In criminal cases, the advocate-witness is especially pertinent to prosecutors because of the sensitive role they assume as the government's representatives in court.⁹ A prosecutor's testimony as a witness plainly poses a heightened risk of prejudice to the defendant.¹⁰ For example, there is substantial concern that jurors will be unduly influenced by the prestige and prominence of the prosecutor's office and will base their credibility determinations on improper factors.¹¹ Accordingly, the principle that a prosecutor should not testify as a witness in a case she is prosecuting is deeply rooted in the law. Prosecutors' assertions of personal knowledge of facts in argument, examinations, or objections at trial may violate the...