Duties to AND of the Court Flashcards
Duty of Candor
A lawyer must not knowingly make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer, and the lawyer must not offer evidence that she knows to be false.
Duty of Candor: Does an attorney have to correct a false statement of material fact?
YES!
This also includes failing to mention a false statement of material fact, whether it relates to your client or opposings!
Duty of Candor: Must an attorney disclose adverse controlling legal authority when opposing fails to do so?
YES!
CA: Must not knowingly misquote the law either.
When does the duty of candor end?
Until judgment has been affirmed, or the time period for appeals have passed.
Can an attorney offer false evidence before the court?
May not knowingly introduce false evidence.
If there is a reasonable belief as to it’s falsity, may refuse to offer it.
What must an attorney do BEFORE false evidence is about to be introduced by the client?
[ABA][CALIFORNIA]
1) Take reasonable remedial measures to convince client not to falsely testify
2) If failed, may attempt to withdrawal
3) If cannot withdrawal, must notify court of error [ABA] or must remain silent [CALIFONRIA].
Can an attorney prevent a criminal defendant from testifying if they know their testimony is about to be false?
[ABA][CALIFORNIA]
No; a client has the right to take the stand and testify. However, the attorney should take reasonable remedial measures to convince them not too.
CA: May have the client testify in a narrative.
What must an attorney do AFTER false evidence is about to be introduced by the client?
[ABA][CALIFORNIA]
1) Take reasonable remedial measures and ask Client to take back the statement.
2) If failed, may attempt to withdrawal
3) If cannot withdrawal, must notify court of error [ABA] or must remain silent [CALIFONRIA].
Duty to Jurors
[ABA][CALIFORNIA]
An attorney MAY NOT communcate with a juror or jury pool IN ANY MANNER, even if juror initiates!
CA: May not attempt to influence future juror services.
May an attorney speak to a juror after proceedings have concluded?
Yes, so long as:
1) It is with jurors consent
2) Not the result of duress, misrepresentation, or harassment
Duty regarding Trial Publicity
An attorney may not say things that the attorney knows/reasonably knows would result in a substantial likelihood of materially prejudicing the proceedings.
What public statements regarding a trial are allowed?
[EIGHT OPTIONS]
1) To mitigate recent prejudicial publicity
2) About relevant claim
3) Information on public record
4) Status of litigation
5) Identity of criminal defendants
6) Identity of officers and agencies involved
7) Assistance in finding evidence or information
8) A warning to a particular individual, but only with enough information necessary to protect them
Duties of a Prosecutor
1) May not prosecute without probable cause
2) Must advise defendant right to counsel and providing **reasonably opportunity to defendant to find counsel
3) Timely disclose exculpatory material evidence
4) Properly disclose new evidence that has a reasonable likelihood of demonstrating defendant’s innocence AFTER they have been convicted
5) Cannot waive pretrial rights with unrepresented defendant.
Trial Publicity: Special Prosecutor Duties
A prosecutor must take reasonable care to ensure other investigators or officers do not make any extrajudicial statements that prosecutor themselves could not make.
ABA: Attorney cannot make public comments that have a substantial likelihood of heightening public condemnation of the defendant.
