Why can't a lawyer just blame a random witness for harming a plaintiff?

Question

It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing unless the lawyer has some basis for asking those questions.

For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash.

Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here in civil cases than criminal, where a defendant's Sixth Amendment rights might complicate the question.

Answer 1

It seems generally uncontroversial that in examining a witness at trial, a lawyer may not ask questions implying that the witness has engaged in some wrongdoing, unless the lawyer has some basis for asking those questions.

This is not true. A lawyer is allowed to guess and ask such a question, although if it assumes a fact not in evidence it could be objected to for lack of foundation.

For example, the opposing counsel could object if the lawyer asked, "After you drank twelve beers at BigTown Sports Bar, isn't it true that you got into a car and drove away?", because there would be no evidence in the record at that point that he drank twelve beers at BigTown Sports Bar.

For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash.

Sure he could. He could ask, "Isn't it true that you were drunk at the time of the crash?" There is nothing objectionable about that question.

If the answer was "no", however, and the lawyer had nothing else to back up that suggestion, the question might not help the case, but the question is proper. Sometimes a lawyer just has a hunch and goes with it, and sometimes the hunch is right.

Is this rule codified in a rule of evidence or is it just rooted in the courts' ideas of decorum and propriety? I can see how it might implicate the Rules of Professional Conduct, but that wouldn't seem to provide a remedy to a party who was prejudiced by such behavior. I'm more interested here with civil cases than criminal, where a defendant's Sixth Amendment rights might be complicate the question.

It isn't codified because such a rule does not exist.

There are some special rules that apply to prosecutors, who are ethically required to bring criminal cases only when they believe that the cases are supported by probable cause. But, that rule applies at the case level and not at the question by question level.

Lawyers are also prohibited, especially in criminal cases, from making statements asserting personal knowledge of the credibility of a defendant or witness. This is because this transforms the lawyer from an advocate to a credibility witness. But, the lawyer can ask a judge or jury to find that someone is not credible in closing argument based upon X, Y and Z evidence presented at trial.

Answer 2

The requirement of a good-faith basis for impeachment and other assertions in cross-examination is rooted in common law principles and codified in many jurisdictions' rules of evidence.

Federal Rule of Evidence 607, for instance, is generally interpreted to require "a good faith basis on the part of examining counsel as to the truth of the matter contained in questions":

Innuendoes and insinuations of inadmissible or nonexistent matters are improper. Thus counsel on cross-examination may not ask Bob, “Isn't it true that Piagano's is located on Birch?” without having a reasonable basis in fact for believing that Piagano's is in fact on Birch and not Apple. Nor may counsel on cross-examination inquire of Bob whether his wife was related to the plaintiff absent a good faith basis. Note that the requirement of a good faith basis applies only when the cross-examiner is effectively asserting in the form of a question the truth of a factual statement included within the question.

4 Handbook of Fed. Evid. § 607:2 (8th ed.)

The rule is recognized in most jurisdictions -- sometimes very broadly with respect to any subject of cross-examination, but sometimes limited specifically to specific instances of untruthfulness, other "past acts" evidence or other categories of evidence.

Sometimes it is explicitly embedded in the state's rules of evidence:

• Ohio Evid.R. 607(B): "A questioner must have a reasonable basis for asking any question pertaining to impeachment that implies the existence of an impeaching fact."
• Maryland Rule 5-608(b): "... The court may permit the inquiry only if (A) the questioner, outside the hearing of the jury, establishes a reasonable factual basis for asserting that the prior instances occurred or that the convictions exist."
• Massachusetts Guide to Evidence, Section 611 (Notes): "Cross-examination must have a reasonable and good-faith basis."

In other jurisdictions, the requirement is a judicial creation, derived from the rules of evidence, from the court's inherent power to control the conduct of trials, or from another source:

• "It was prejudicial error for the trial court to permit cross-examination of defendant as to prior criminal acts, for the purpose of impeaching his credibility, without ascertaining whether the prosecutor had a reasonable basis for his questions and was therefore acting in good faith." People v. Korn, 40 A.D.2d 561, 561, 334 N.Y.S.2d 115, 116 (1972)
• "Where counsel elects to attack the credibility of a witness on cross-examination through questions designed to impeach on collateral matters, he impliedly represents to the court that he is prepared to dispute a denial. In order to ask such questions, the attorney must have a reasonable basis for believing that the answer will be relevant, that is, impeaching. Without information upon which to form a reasonable belief that the witness's response will be impeaching, reasonable basis for asking a question which is intended to degrade the witness does not exist. Indeed, if the attorney has no reasonable basis to believe the question is relevant to the case and the question degrades the witness, asking it violates Disciplinary Rule DR 7-106(C)(2) of the Code of Professional Responsibility." Marsh v. State, 180 Ind. App. 175, 387 N.E.2d 1346, 1348, superseded, 271 Ind. 454, 393 N.E.2d 757 (1979)
• "The trial court does have a right to inquire as to whether the cross-examiner has a reasonable basis for asking the questions as to prior inconsistent statements... The purpose of such an inquiry is to make sure that the cross-examiner is not merely taking a random shot at a reputation imprudently exposed or asking a groundless question to waft an unwarranted innuendo into the jury box." State v. Hilling, 219 N.W.2d 164, 171 (N.D. 1974)
• "It is unfair to allow -- and we cannot countenance -- questions, such as that propounded here, which can cause a doubt in the jury's mind as to the prosecutrix' credibility when there is no reasonable basis in fact for the interrogation." People v. Simbolo, 188 Colo. 49, 52, 532 P.2d 962, 963–64 (1975)

Answer 3

Actually, the plaintiff’s lawyer could. He may not choose to. Also, the court may not allow him to. Although he could. And it could.

See:

Federal Rules of Evidence Rule 611

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Edit to include more detail, as suggested in the comment:

For instance, in the absence of any evidence indicating that alcohol was involved, I would imagine that a plaintiff's lawyer in an accident case could not cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash.

Actually, the plaintiff's lawyer could. According to FRE 611(c), leading questions should be allowed "(1) on cross examination; and (2) when a party calls a hostile witness, an adverse party, or a witness identified with an adverse party."

However, he may choose not to if it does not advance his case.

Also, the court may not allow him to... but, it could. According to FRE 611(a), "The court should exercise reasonable control over the mode and order of examining witnesses and presenting evidence...

If it determines a line of questioning is way off base, FRE 611(a)(3), providing a reason why a court would exercise such control over the examining of witnesses, lists "[to] protect witnesses from harassment or undue embarrassment." Arguably, if you were implicated as being a drunk driver when, in fact, you were not, that could constitute harassment or undue embarrassment.

Expanding on both what the lawyer may ask as well as what control the court may exercise over the questioning, FRE 611(b) says that "[c]ross-examination should not go beyond the subject matter of the direct examination and matters affecting witness's credibility. The court may allow inquiry into additional matters as if no direct examination."

So, the plaintiff's lawyer could cross-examine a defendant with leading questions suggesting that he had been drunk at the time of the crash. Why not? @bdb484, in the answer your provided yourself, it appears you are putting too much weight onto the idea of the lawyer having a reasonable basis to believe something. This is a low bar. If you were at a bar, left the bar, and got in a crash, there would almost certainly be a reasonable basis to inquire as to whether you were drunk.

The rule you cite includes,

Innuendoes and insinuations of inadmissible or nonexistent matters are improper.

Note that it does not bar those insinuations based on evidence not admitted at the trial. Rather, it bars those insinuations based on evidence that can not be admitted at the trial.