V. Deception and Illusion as Advocacy Techniques

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

V. Deception and Illusion as Advocacy Techniques

Trial lawyers routinely use demonstrative evidence. The use of demonstrative evidence sometimes spawns ethics issues. Some issues are clear. For example, lawyers cannot alter demonstrative evidence so that it becomes misleading, nor can they falsify demonstrative aids. Lawyers who engage in such deceit risk severe sanctions in the case at hand and professional discipline down the road. Other issues are not so simple. A recurring source of controversy is lawyers' participation in what might be described as "parlor tricks"—courtroom demonstrations that mislead courts or jurors in an attempt to make evidentiary points. In a common example, a lawyer has someone impersonate her client as a means of challenging an eyewitness's or police officer's identification of the client. This may be as simple as having the impostor sit at counsel table with the lawyer, or it may involve more elaborate techniques, such as altering the client's or stand-in's appearance.

Consistent with Shakespeare's view that all the world's a stage, lawyers also perform parlor tricks in depositions. In Cincinnati Bar Ass'n v. Statzer,³⁰⁶ for example, the lawyer arranged blank cassette tapes in front of the deponent, labeled them as exhibits, and then referred to them during her questioning, thereby implying that she had recorded conversations with the witness. The lawyer also cautioned the witness to testify truthfully under penalty of perjury. The Ohio Supreme Court suspended the lawyer for six months, stayed on the condition of good behavior, for (1) conduct involving dishonesty, fraud, deceit, or misrepresentation, and (2) alluding to matters unsupported by admissible evidence when appearing before a tribunal.³⁰⁷ It is noteworthy that the Statzer court considered the lawyer's conduct in a deposition to be before a tribunal—a view that courts generally embrace but that seems to elude many lawyers.³⁰⁸

Consider alternatively the conduct of the late Frank Anzalone, a colorful criminal defense lawyer in St. Louis. The police had arrested Anzalone's female client for allegedly participating in a hand-to-hand drug sale. The arresting detective's ability to identify Anzalone's client was legitimately at issue. In advance of the detective's deposition at Anzalone's office, Anzalone dressed his client in business attire and had her portray his secretary. When the detective entered Anzalone's office for his deposition, the client greeted him as though she were Anzalone's secretary, got him coffee, and chatted with him. The detective did not recognize Anzalone's client as the woman he had arrested. In the deposition, Anzalone asked the detective whether he had seen his client since he arrested her. The detective denied having done so. Anzalone did not attempt to impeach the detective during the deposition. Anzalone never revealed his ruse to the prosecutor or to the court before disclosing it during his opening statement in the client's trial. In a made-for-television ending, the jury acquitted his client.

No one reported Anzalone's conduct to Missouri disciplinary authorities, so we will never know how it might have been judged. It is fair to ask, however, whether his tactical deception passes ethical muster in light of Statzer. Anzalone's conduct is distinguishable from the lawyer's conduct in Statzer because Anzalone's deception did not take place during the deposition and thus did not occur before a tribunal. All Anzalone did during the deposition was question a witness and receive an answer he knew to be false. Eliciting false testimony from a witness for the purpose of later demonstrating its falsity to discredit the witness is ethically permissible.³⁰⁹ The identity of Anzalone's client was truly at issue, meaning that the ruse served a legitimate evidentiary purpose. In contrast, there was no valid reason for the lawyer in Statzer to imply that she had recorded conversations with the deponent. Still, Anzalone's tactic might make some courts uncomfortable. In hindsight, and although nothing ever came of it, Anzalone might have been wise to alert the court to his ploy before he delivered his opening statement.

A. Court as Theater

United States v. Thoreen³¹⁰ is a leading case on lawyers' use of scripted deception as an advocacy technique. Thoreen represented Sibbett, a commercial fisherman, in a bench trial for criminal contempt stemming from alleged violations of a preliminary injunction against salmon fishing. Although there was nothing to suggest that the arresting government agent had picked the wrong man, Thoreen hoped that the agent would be unable to identify Sibbett at trial.³¹¹ He therefore seated at counsel table a fellow by the name of Mason. Mason resembled Sibbett and Thoreen dressed him in the sort of outdoor clothing a commercial fisherman might be expected to wear. Meanwhile, Sibbett wore a business suit and large round glasses, and sat behind the rail in a row of seats normally reserved for the press. Thoreen did not tell the government's counsel what he was doing, nor did he ask the court's permission to pull the switch.³¹²

Thoreen moved at the start of the trial to sequester all witnesses. Mason remained seated at counsel table. Throughout trial Thoreen acted as though Mason were his client; he gave him a pad on which to take notes and the two of them conferred. Thoreen did not correct the district judge when he referred to Mason as the defendant and caused the record to show Mason's identification as Sibbett by two government witnesses.³¹³

When the government rested, Thoreen called Mason as a witness in his case and revealed the switch.³¹⁴ The court called a recess and thereafter allowed the government to reopen its case. The government recalled the agent who cited Sibbett for two of the three violations at issue. This time the agent correctly identified Sibbett, who was convicted of all violations.

The district court held Thoreen in criminal contempt for his conduct. The district court condemned the Mason-Sibbett switch because it was done without the court's or government's knowledge or permission; there was no claimed identification issue before the substitution at trial; it deceived the court and frustrated its responsibility to administer justice; and it violated court custom.³¹⁵ Thoreen's conduct also merited contempt because he planned to have Mason testify when he asked the court to exclude witnesses from the courtroom.³¹⁶ Finally, the district court found that Thoreen violated three Washington ethics rules: DR 1102(A)(4), prohibiting conduct involving dishonesty, fraud, deceit, or misrepresentation; DR 7102(A)(6), prohibiting the creation or presentation of false evidence; and DR 7106(C)(5), mandating compliance with known local customs of courtesy or practice of the bar or a particular tribunal absent timely notice of intended noncompliance.³¹⁷ Thoreen appealed to the Ninth Circuit.

Thoreen's principal defense was that his conduct was a good faith cross-examination tactic and thus fell within "the protected realm of zealous advocacy."³¹⁸ He also argued that his conduct did not violate the contempt statute, he did not intend to deceive the court, and the court's order excluding witnesses was not directed at Mason. The Ninth Circuit rejected all of his arguments.

Thoreen's conduct crossed the line from zealous advocacy to obstruction of justice because it impeded the court's search for truth, delayed the proceedings, and violated a court custom and rule.³¹⁹ Making misrepresentations to the finder of fact "is inherently obstructive because it frustrates the rational search for truth."³²⁰ Thoreen's conduct was also inappropriate because it was done without the court's consent, and it violated court custom to allow only counsel, parties, and others having the court's permission to sit forward of the rail.³²¹

Thoreen argued that his decision to keep Mason at counsel table did not violate the court's sequestration order because Mason would not change his testimony based on what he heard in the courtroom, and because it was unclear that Mason would be a witness. Thoreen's argument was betrayed by the facts. The sequestration order, which Thoreen requested, did not distinguish between witnesses who might alter their testimony and those who were unlikely to do so. Thoreen also acknowledged that he intended from the start to call Mason as a witness after the expected misidentification.³²² Thoreen's decision to have Mason remain despite the court's order was "an unfortunate error in judgment."³²³

Thoreen also argued that the Mason-Sibbett switch did not obstruct justice because he corrected any misrepresentation before the court ruled on Sibbett's guilt.³²⁴ But Thoreen's argument ignored the disruption that the substitution caused. The substitution delayed the proceedings by virtue of the time spent on the misidentification, and by causing the government to recall one witness to correctly identify Sibbett. Furthermore, a court's reliance on a misrepresentation is not necessary to support a finding that deceptive or misleading conduct obstructed justice; mere delay or hindering the court's ability to ascertain the truth is sufficient.³²⁵

Finally, Thoreen asserted that he could not be held in contempt because he did not intend to hinder the court's search for truth. This argument also failed. Criminal contempt does not require evil motive or an actual intent to obstruct justice. A lawyer's intent may be inferred if his conduct reflects a reckless disregard for professional duty.³²⁶ That was the case here, primarily because Sibbett's identification was never an issue. Thoreen should have known that his conduct exceeded reasonable limits and hindered the court's search for truth.³²⁷

Although the Ninth Circuit affirmed the contempt citation, it did so reluctantly. The court noted that certain variations on Thoreen's conduct are acceptable where a defendant's identification is at issue...