Even if (1.) they have no ethics other than winning, (2.) You’re paying them an obscene amount of money to beat the rap, and (3.) They’re certain they can get away with having you lie?
What kind of teams? Football? Baseball? Basketball? Soccer?
I’ve seen it in a couple instances of pro se defendants – never when an accused was represented by counsel.
Maybe a juror should ignore the fact that a defendant doesn’t take the stand, or if they testify in the narrative. But is that really realistic if a juror knows what that usually means? As a juror, I think I would have a hard time compartmentalizing that information and not letting it affect my opinion. Is this something they ever screen for in jury selection?
Several questions come to mind:
Perjury requires 2 independent pieces of evidence to convict. (IIRC, with Martha Stewart they tried to nail her with the secretary’s testimony and scretary’s notes of the same conversation as 2 separate pieces - IIRC it was shot down.) So how definite doe a lawyer have to be that the testimony is false? It disagrees with what the client told him in private, not under oath? It contradicts obvious evidence or other witnesses? “Beyond reasonable doubt”?
What is “elicit testimony”? If I ask a defendant “did you kill Dick, Jane, and Sally” is it my fault if they don’t tell the truth? Or is it my fault if I follow up with “Is it true that you severed Sally’s head like Joe says you did?” after the initial denial, and he still lies? I’m offering leading questions that say he should tell the truth. Or should I have stopped askingwhen he first lied? Or is it only unethical if he warned me ahead of time he would lie and I ask him anyway?
Do I have to stop when I know (or think I know, based on private conversations) that he is lying? Or can I ask other questions?
If this comes out in cross-examination, should we read something into the fact the the defence attorney did not re-cross-examine (or whatever it’s called)?
So if I’m on a jury, and the defence’s impasioned closing argument ignores the defendant’s testimony, should I read something into it?
Is it OK for the defence attorney to say something in closing like “and the defendant told you he didn’t do it”? Nowhere there does he say that’s the truth. It’s true the defendant said he didn’t do it.
I recall hearing (from my usual source of legal wisdom, TV lawyer shows) that a defense attorney should never directly ask his client whether he’s guilty, for the very reason that he’d be faced with suborning perjury if the guy took the stand.
The breach that we have identified here is eliciting false testimony not perjury. And the former is more a professional misconduct violation then a crime (though depending on jurisdiction, it may be).
You ask the defendant that, you’ll be censured by the judge for asking a leading question, whatever the veracity of the answer given, you cannot ask leading questions in examination in chief (known as Direct Examination in the US).
Elicit testimony is what it say, it is obtaining testimony from the witness that hopefully favours your version of events, discredits the other sides.
What I cannot ask knowing or recklessly as a Barrister/Advocate/Attorney are questions or a line of questioning that will or might result in the obtaining of testimony that I know is false.
To take an example, lets say the accused is charged with mugging. In my conferance, I messed up and he told me he did in fact do it.
I cannot when examining him in chief attempt to elicit a denial from him, that would be verboten. When I am cross examining the complainant, I cannot put it to her “Accused did’nt do it”, since I know he did. What I can ask her is (lets say the incident took place at might and in a few second), “it was dark, you did not get a good look at the assailant, it was over quickly, this you can’t be sure” since they are all true.
[/QUOTE]
As stated above, on the stand you have to avoid going places where he could give false testimony.
As for when you have your client conferance, well during the conferance you need to obtain all the facts and close all gaps in evidence. Often times during the conferance you will be able to deduce probable guilt or innocence, and if its the former, so attempt to skirt around it, so he does not say it, while still conducting a proper conferance. If he admits to guilt, well you don’t have to tell anyone, but professional conduct rules hamper you in the fashion mentioned above at trial. If he does not admit, but you deduce, its as if nothing happened and you are in the clear as far as professional conduct is concerned, for the reason that guilt is not a fact that he has told you rather it is something you merely think is the case.
So yes, during the conferance you are indeed thinking “please don’t say that you have done it, you idiot”.
The entire purpose of cross-examination is to put your own case forward and impeach the witness. Cross will be done to this effect by opposing counsel and if you are a competant Barrister/Advocate/Attorney you will have in examination in chief protected the accused from the expected onslaught by explaining away possible problems. For example when the accused admits to being in the area, ask him in chief “why were you there”, and he will say something like “its a shortcut to my flat, and I often take it” which means that the accused presence in the area is something that is less useful to opposing counsel.
Its called reexamine/redirect and NO there can be a hundred reasons why Counsel chose not to do so.
The jury is the trier of fact (pity). It is for them to determine the truth of the matter. I will say something like I(abbreviated), “the defenant stated under oath and has persistantly he did not do it. My learned friend failed under cross examination to impeach his version of events in any way. The honourable jury should thus aquict”
Bumping Saint Cad’s question because I’m curious too.
What happens when the witness is hostile?Can a defendant be declared hostile to his own representation?
Generally, you’re stuck with it. It’s a breach of professional ethics to undermine the lie your client just told, and it’s a breach to support it as well. If the court won’t let you withdraw, then you can walk the tightrope by not using what your client said in argument – that is, point out whatever weaknesses in the case exist, but refrain from saying, “…and he was in Wisconsin that night!” when you close.
When the witness is hostile, it’s generally permitted to ask him leading question during direct examination. The theory is that a witness you call is going to be sympathetic to your cause, and shouldn’t need to be led into answers. But there are cases where a witness that can establish some fact you need for your defense is NOT sympathetic to your cause, and if you can show the judge that this is so, you’ll get some leeway in how you ask questions.
I don’t know of any rule that forbids it but cannot imagine a way it would be found to be so.