Trial Ethics: Witnesses
| Publication year | 2016 |
| Author | By Wendy Wen Yun Chang |
By Wendy Wen Yun Chang
Witnesses. At trial, they literally can make or break your case. Every experienced trial lawyer knows that even the best groundwork cannot fully eliminate uncertainties of how a witness ultimately performs or how a trier of fact responds. Against that backdrop there are also ethical rules that govern how attorneys interact with witnesses. Violating these rules can inject further ambiguity into an already inexact process, giving rise to the potential for unexpected results, including the loss of a favorable decision, sanctions, disciplinary actions and civil liability. You need to be prepared and should familiarize yourself with the rules so that you do not find yourself in an unnecessary quandary.
We start with basic premises: An attorney must act zealously to protect the client's interests but may only do so within the boundaries of the law. (Hawk v. Superior Court (1974) 42 Cal.App.3d 108, 126.) As officers of the court, attorneys are duty-bound to act ethically. (See Styles v. Mumbert (2008) 164 Cal.App.4th 1163, 1169.) The public's regard for the legal profession depends in large part on the public's trust in the integrity of attorneys and the legal system itself. (Ibid.) Thus, an attorney must, at all times, employ only those means that are consistent with the truth. (Bus. & Prof. Code, § 6068, subd. (d).) It is the duty of an attorney to maintain the respect due to the courts of justice and judicial officers. (Bus. & Prof. Code, § 6068, subd. (b).) Committing any act involving moral turpitude, dishonesty, or corruption, whether as an attorney or not, whether felony or misdemeanor, constitutes grounds for disbarment or suspension. (Bus. & Prof. Code, § 6106.) Every attorney is guilty of a misdemeanor who is guilty of any deceit or collusion or consents to any deceit or collusion, with intent to deceive the court or any party. (Bus. & Prof. Code, § 6128.) This article reviews three areas of trial ethics pertaining to witnesses.
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Obviously, witnesses must be prepared for trial. Failing to do so is below the standard of care. But, in preparing a witness for trial, you must not cross the line and "manufacture" evidence. California Rules of Professional Conduct rule 5-200(B) states that a lawyer shall not seek to mislead the judge, judicial officer, or jury by an artifice or false statement of fact or law. Rule 5-220 states that a lawyer shall not suppress any evidence that the lawyer or the lawyer's client has a legal obligation to reveal or produce. Rule 5-310(A) states that a lawyer shall not advise or directly cause a person to secrete himself or herself or to leave the jurisdiction of a tribunal for the purpose of making the person unavailable as a witness therein.
The line between appropriate witness preparation and improper coaching is not a clear one. The Restatement of the Law Governing Lawyers provides some guidance, finding it appropriate for a lawyer to (1) discuss the role of the witness and effective courtroom demeanor, (2) discuss the witness's recollection and probable testimony, (3) reveal to the witness other testimony or evidence that will be presented and ask the witness to reconsider the witness's recollection or recounting of...
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