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This question is about the legality of a possible defence tactic that might be used in a criminal trial. It is a variation on things you see in lawyer movies fairly commonly. Suppose that a criminal trial occurs, and the defendant is not already in custody when the matter is heard (e.g., it proceeds by summons, or else he was out on bail). There is a witness to the crime and it is expected that she will identify the defendant in court as the perpetrator of the crime.

Now, suppose that the defence lawyer has reason to believe that this witness is actually not able to genuinely identify the defendant (as distinct from someone who looks a bit like him), but expects that the witness wants to assist the prosecution, and so she will nevertheless confidently point to whoever is in the defendant's chair and say that she is certain he is the perpetrator. So the defence lawyer attends court with a person who looks like the defendant, but is not the defendant. The lawyer can prove that this pretend-defendant was nowhere near the crime (e.g., he was overseas at the time). He sits this pretend-defendant in the defendant's chair and proceeds with the matter roughly as normal (while taking any necessary instructions from the actual defendant remotely by some surreptitious means). He is careful not to explicitly say that this is the defendant, but he acts in a manner that ensures that the judge and prosecutor will assume that this is the defendant.

Suppose now that the prosecution witness testifies, and as expected, she identifies this pretend-defendant as the perpetrator of the crime, and says that she saw him clearly, and she is absolutely certain it is him. The defence lawyer keeps questioning this, but she is resolute. At this point the lawyer reveals the charade, thus destroying the testimony of the witness and exposing her as either dishonest, or at least unreliable. He brings in the real defendant for the remainder of the proceedings.

Now, obviously this is a matter where the defence lawyer has perpetrated a ruse on the court, and has thereby misled the court, albeit temporarily. However, this is done in the pursuit of a legitimate purpose --- namely, to test the evidence of a prosecution witness and expose the unreliability of that witness. Also, to be clear, the defence lawyer will reveal the true defendant at this point in the trial regardless of the witness's testimony. If challenged on this, the lawyer could potentially argue that this kind of temporary ruse does not really constitute "misleading the court", since he will ultimately reveal the true defendant, though that might be a weak argument, since there is certainly a temporary misleading occurring in the ruse.

My questions: Firstly, is there any practical impediment that would make it impossible to implement this tactic? Assuming it is possible, what (if any) legal impediments would there be to using this tactic in a criminal matter? In particular, would the defence lawyer (and possibly also the defendant) be exposed to legal danger for misleading the court? Is there any case law where something like this has occurred (i.e., lawyer misleading court temporarily in order to test evidence of opponent)?

Note: I have not specified a jurisdiction for this question, but I am interested in the answer in any Western jurisdiction. If the answers depends on jurisdiction, then it would be interesting to know whether this is something that would generally be prohibited. I am aware that there is a large body of case law on the legality of ruses by police against suspects, but I am not aware of any case law on ruses against the court by a lawyer.

  • The Colorado Supreme Court this week made a ruling on a related issue: "whether due process or Colorado rules of evidence required the exclusion of victim-witnesses’ in-court identifications of the defendant, where each witness had failed to identify the defendant in a photographic array before trial and almost three years had elapsed between the crime and the confrontations." The Colorado Supreme Court holds that it does not. courts.state.co.us/userfiles/file/Court_Probation/Supreme_Court/… – ohwilleke Mar 20 at 19:10
  • But, this is partially due to poor defense counsel lawyering at trial: "Because . . . the record reveals nothing unusually suggestive about the circumstances of the witnesses’ in-court identifications, the supreme court holds that the in-court identifications did not violate due process. The court further holds that the defendant’s evidentiary arguments are unpreserved and that the trial court’s admission of the identifications was not plain error under CRE 403, 602, or 701." A good trial court defense lawyer would have objected and made a record about how the setting was suggestive. – ohwilleke Mar 20 at 19:16
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In the U.S., pretty much the only circumstance in which a proceeding like the one you contemplate could occur without the criminal defendant present physically in the courtroom would be one where the criminal defendant was physically present when the trial started (say on the morning of day 1) and then failed to return after a break in the proceedings without good cause. So, the trier of fact will have seen the defendant in court already.

Pro-Tip: In the real world, criminal defendants who abscond without good cause (e.g. a heart attack or being kidnapped), mid-trial, are almost always convicted even in what might otherwise be marginal cases on the issue of guilt or innocence. So, not showing up is not a good strategy for any criminal defendant who doesn't plan on being convicted and being a fugitive from justice.

He sits this pretend-defendant in the defendant's chair and proceeds with the matter roughly as normal (while taking any necessary instructions from the actual defendant remotely by some surreptitious means).

No U.S. court would allow a defense counsel to do this. In general, only lawyers and clients and legal staff are allowed to be in front of the bar between the judge and the audience in a courtroom and this tends to be rather strictly enforced.

The defense could conceivably ask for permission for the defendant to not be sitting at the defense table (either outside the courtroom or in the audience section) and for permission for the defendant to not be forced to war identifiable garb (e.g. a prison jumpsuit) when the witness came in (the clothing request is routinely granted), in advance of the witness's testimony, if this was a concern. The court might grant that request, although it would rarely be an abuse of discretion reversible on appeal to deny a request like that. But, deception would not be permitted.

The better approach to handling this would be to take the deposition of the witness prior to trial, either using a photo lineup with the defendant not present, or a physical line up, arranged by the defense counsel, and then to use the testimony of the witness in the deposition to impeach the identification testimony given by the witness at trial.

There are also some evidence rules with constitutional dimensions related to witness identifications of defendants in criminal cases prior to trial that limit the kind of conduct you are worried about preventing. Often the main concern is that an out of court witness identification will be tainted and taint the future testimony of the witness, if certain improper defendant identification procedures are used prior to trial with a potential witness. If that happens, the witness's testimony (and testimony from anyone about the out of court identification of the defendant by that witness) may be excluded from evidence at trial in many cases. (This is the subject of a very large volume of case law that I am only summarizing in the most general terms and is probably not "precisely" accurate.)

I don't know how this would play out in non-U.S. jurisdictions but very much doubt that it would be permitted in most of them.

A true jury trial of the type assumed by this question only exists in common law jurisdictions whose legal system is based on English law. The relevant legal practices on this particular issue in common law jurisdictions are very similar to each other.

Many civil law jurisdictions (i.e. countries with laws based on continental European law rather than English law) such as Egypt, actually require criminal defendants to be in a physical cage in the courtroom during criminal trials in most cases. Also, what are called "juries" in most civil law jurisdictions in criminal cases are closer to panels of judges, some of which are professional judges and some of which are non-professional lay judges, than they are to common law juries. But, this structure would make that kind of tactic impossible to use.

  • "Pro-Tip: In the real world, criminal defendants who abscond without good cause (e.g. a heart attack or being kidnapped), mid-trial, are almost always convicted even in what might otherwise be marginal cases on the issue of guilt or innocence." Is it "absconding" to simply not show up in the courtroom, especially if you're in the courthouse? – Acccumulation Feb 7 at 23:06
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    @Acccumulation Unless the court otherwise agrees in advance, and the defense in addition waives the right to have the defendant present in the courtroom, the defendant is supposed to be present in the courtroom for the entire trial. There aren't many absconding cases out there because this rarely happens & then gets appealed creating case law very often, so I'm not rock solid on the precise details of what you can absolutely insist upon regarding presence in the courtroom, although, the defendant definitely can't be excluded involuntarily and definitely must be there at the start of the trial. – ohwilleke Feb 7 at 23:19
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The witness would not be regarded as dishonest - they would be viewed as having been tricked. The defendant and defence team would be viewed as dishonest, and could be considered to have fabricated evidence.

The defendant could be regarded as not having attended their trial, and the defence lawyers (since you're spelling "defence" the same way as I do I'll make a leap and say that would apply to both the barrister and solicitor) could be found in contempt of court and prosecuted for perverting the course of justice.

The person who appeared as the defendant could (unless exceptional circumstances exist - for example duress) also be charged with perverting the course of justice.

Perverting the course of justice carries a maximum sentence of life imprisonment.

There is no legitimate purpose here, and trying something like this would not help the defendant's case. Any defence lawyers involved would not be lawyers for long.

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    It is not necessarily the case that the witness is being honest, and in any case, that does not explain how these actions would constitute fabrication of evidence by defence lawyer. Is there any case law to this effect, or is this just your personal view? – Ben Feb 6 at 13:48
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    @ItWasLikeThatWhenIGotHere In this case, the witness "wants to assist the prosecution", which is not an honest motive. – David Thornley Feb 6 at 18:37
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    @DavidThornley - The reason the witness might want to assist the prosecution is that they saw a crime, which is an honest motivation. The longer quote is "the defence lawyer...expects that the witness wants to assist the prosecution", which looks like another example of the defendant and theoretical legal team projecting their dishonesty on other parties. There is no jurisdiction in which falsely presenting a third party as the defendant and then saying "Ha ha, only kidding" would be considered appropriate behaviour in court. – ItWasLikeThatWhenIGotHere Feb 7 at 9:52
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    You have asserted this several times now. Thank-you for taking the time to provide an answer. However, I have come onto this forum to ask about the actual legal rules and case law of these types of situations. Bald assertion that it is not allowed, from an unidentified internet user, who has not disclosed any legal training or experience in litigation, is not helpful. So either there is case law on ruses, which is helpful, or there is not. – Ben Feb 7 at 11:03
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    It is also worth noting that any time a criminal defense strategy is successful at trial and results in an acquittal that the prosecution isn't allow to challenge the validity of that tactic in an appeal after the trial. It has to either appeal the ruling on the issue prior to the trial taking place or waive any chance to appeal the ruling. If the defense can convince a trial judge and the prosecution doesn't appeal and the tactic works, the defense gets away with it, even if the tactic was legally improper. Also this means there are rarely precedents ratifying aggressive defense tactics. – ohwilleke Feb 7 at 23:35
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It’s against the law

For example, form the New South Wales Legal Profession Uniform Conduct (Barristers) Rules 2015

24 A barrister must not deceive or knowingly or recklessly mislead the court.

Barristers who break the law become ex-barristers.

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I recall this tactic being used in a Perry Mason novel. But even with the flexibility with the law those books had, Mason had the defendant in court although not at the usual place, and had secured the permission of the Judge in advance for this.

I think that deceiving the Court, even briefly and for arguably legitimate reasons, will not go well. Deceiving the witness with the permission of the court might work, but the idea of a deposition with a proper lineup is probably better. Failing that, a lineup in the court might possibly work, with proper preparation, including judicial permission.

  • I recall a more minor deception in A Few Good Men where Defense Counsel Kaffey tells the court he will be calling Airmen Cecil O'Malley and Anthony Rodriguez as rebuttal witnesses with respect to air-flight times. He later concedes that this was all a ruse, and those airmen could not give any useful testimony. – Ben Feb 7 at 23:59
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USA answer, may be similar for Common Law Jurisdictions in General:

Generally no, there is no method for this to be practical. There is trial in absentia which is when the defendant does not show up for a scheduled trial but there is sufficient evidence that it does not matter (remember, the defense does not need to testify at all or call witnesses at all). If he's going to run and the Prosecutor doesn't need to press the identification issue, the trial is still good to go and may proceed.

Rather, the defendant has the right to examine all evidence against him and question the evidence (including witness testimony) so the Defense should look to show reasons that the defendant was mistaken by the witness. For example, the police botched a criminal line up OR the witness had a way of mistaking the defendant. My Cousin Vinny's court scenes were built on the defendants being mistaken for the guilty party by three eyewitnesses. Vinny immediately and correctly identifies why they are not reliable and just mistaken (and it should be pointed out, none of them are out and out lying. The first under reported the timeline between the defendants entering and leaving the store (5 minutes) but in the interim performed a task that meant it was over 3 times longer than his initial estimate about when the defendants entered the store and when they left (and he admits in direct he didn't see their faces when they left). The second witness had terrible vision and her prescription hadn't been checked in years (it was demonstrated that she couldn't see identifiable details at half the distance she claimed the defendants were at. The final witness had a lot of obstructions and a very dirty window blocking him from a clear view of the defendants). Eye witness testimony is notoriously unreliable and these kind of things happen at all times. Of course, this doesn't crack the case, and Vinny has to figure out how to solve the issue with all three witnesses clearly having eyes on a very distinct car... which is epic in it's own right.

  • Is the defendant required to be there at all times? If the defendant has medical issues and can't attend, is the trial halted until the defendant can return? – David Thornley Feb 6 at 18:39
  • First question, No. In Absentia trials occur when the defendant is absent (often by bail jumping or unable to be found). Generally for medical issues, the trial date will be rescheduled to accommodate, but may result in a Recess or Mistrial depending on how long the medical issue would be and how far into the trial it is. These would normally be discussed with the judge and both legal teams in chambers. – hszmv Feb 6 at 18:53
  • "The first under reported the timeline between the defendants entering and leaving the store (5 minutes) but in the interim performed a task that meant it was over 3 times longer than his initial estimate about when the defendants entered the store and when they left" This is my favorite scene of the whole movie and actually an example of exemplary trial lawyering. – ohwilleke Feb 7 at 23:26
  • @DavidThornley A criminal trial cannot be commenced if the defendant is not present in court in the U.S. and the criminal defendant has an absolute right to be present in court while competent to stand trial, during the entire trial, subject to some very narrow exceptions that are basically the defense's fault (or certain very narrow closed circuit TV situations). hszmv is correct on all points in his comment. The "required to be there at all times" rule is not quite as absolute and sometimes can be waived by the defense, but is still highly preferred. – ohwilleke Feb 7 at 23:29
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    @ohwilleke: It's an amazing scene, but the first witness for the defense (or last) will always be my favorite scene. I don't want to ruin it, so I won't go into details, but I just love how awesome it is. Still, "Do the laws of physics cease to apply on your stove?" is probably the funniest line in the whole film just because its a funny statement completely out of context too. – hszmv Feb 8 at 14:50

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