False Impressions and Coaching Witnesses - July 11 Flashcards
May a lawyer falsify evidence? (Q)
No. A lawyer may not falsify evidence. This prohibition also bars a lawyer from advising or assisting a witness to testify falsely.
A lawyer represented a defendant in a criminal case. The defendant did not have an alibi witness, i.e., someone to testify that the defendant was not present at the scene of the crime. The lawyer knew that the defendant was home alone at the time of the crime. The lawyer met with the defendant’s girlfriend and explained to her the defendant’s need for an alibi. The girlfriend asked the lawyer whether the lawyer wanted her to testify that she was home with the defendant at the time of the crime. The lawyer replied, “Yes, if you think it’s the right thing to do.”
Was the lawyer allowed to counsel the defendant’s girlfriend to testify falsely? (Q)
No. The lawyer was not allowed to counsel the defendant’s girlfriend to testify falsely. A lawyer is prohibited from falsifying evidence. Among other things, this means that a lawyer may not counsel a witness to testify falsely. These prohibitions help to ensure that the parties compete fairly within an adversarial system.
Here, the lawyer knew that the defendant was home alone at the time of the crime and did not have an alibi witness. Therefore, the lawyer was not allowed to counsel the defendant’s girlfriend to testify falsely that she was at home with the defendant during the time of the crime.
May a lawyer offer a witness any inducement or compensation that is prohibited by law? (Q)
No. To avoid the possibility of improper influence or offering false testimony, a lawyer may not offer a witness any inducement or incentive that is prohibited by law. This rule does not prohibit a lawyer from paying a witness’s expenses or paying a fee to an expert witness to the extent permitted by law. However, in most jurisdictions, a lawyer may not pay an expert witness a contingent fee based on the results of the trial. Nor may a lawyer pay a non-expert witness a fee, as opposed to reasonable expenses, for testifying.
At trial, may a lawyer refer to any matter that the lawyer does not reasonably believe to be relevant or supportable by admissible evidence? (Q)
No. A lawyer at trial may not refer to any matter that the lawyer does not reasonably believe to be relevant or supportable by admissible evidence. This helps to preserve the integrity of the adversary system by protecting the finder of fact from bias or confusion that might otherwise infect the proceedings.
At trial, may a lawyer state his personal opinion as to the virtue of a cause, a criminal defendant’s guilt or innocence, a witness’s credibility, or a civil litigant’s culpability? (Q)
No. At trial, a lawyer may not state his personal opinion as to the virtue of a cause, a criminal defendant’s guilt or innocence, a witness’s credibility, or a civil litigant’s culpability. A lawyer may present arguments about these matters based on the law and the facts. However, this rule is designed to prevent the lawyer from personalizing the controversy or making his own credibility an issue in a way that might improperly influence the trier of fact.
In general, may a lawyer ask a person other than a client to refrain from voluntarily giving relevant information to another party? (Q)
No. In general, a lawyer may not ask a person other than a client to refrain from giving relevant information to another party. However, a lawyer may make the request if:
the person is a relative, employee, or agent of a client; and
the lawyer reasonably believes that the person’s interests will not be adversely affected by withholding the information.
In general, at trial, may a lawyer assert that she has personal knowledge of the facts in issue? (Q)
No. In general, at trial, a lawyer may not assert that she has personal knowledge of the facts in issue. However, the lawyer may do so if she is testifying as a witness.
