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This question relates to an earlier question I asked here, but I am looking for a broader answer citing case law. I would like to know if there is any case law relating to the legal limitations on allowing counsel to conduct a ruse against a witness for the purposes of testing their evidence. I am particularly interested in situations where the judge is not aware of the ruse (until it is revealed) and so the ruse also temporarily misleads the court.

There are many examples of this that occasionally occur in fictional legal dramas, such as the example below. I include this only as an example, but I am interested in any situation where counsel perpetrates a ruse on the witness, and the judge is misled by that ruse in the process. Presumably this raises the potential for counsel to get in trouble for misleading the court, but I would like to know if there is any case law testing the limits of what is an allowable ruse and what goes too far.


An Example: In the movie A Few Good Men, defence counsel is examining a witness who is trying to hide the existence of a military flight. Defence counsel tells the court that he will call airmen working ground-crew that day as rebuttal witnesses. He then continues the examination. Neither the witness, nor the judge, are aware that his rebuttal witnesses are a ruse.

Judge Randolph: I don't understand. You're admitting evidence of a flight that never existed?

Defence Counsel Kaffee: We believe it did, sir. Defense will be calling Airmen Cecil O'Malley and Anthony Rodriguez.

Prosecutor Ross: These men weren't on the list.

Defence Counsel Kaffee Rebuttal witnesses, Your Honor, called specifically to refute testimony offered under direct examination.

... then later ...

Prosecutor Ross: Airmen Cecil O'Malley and Anthony Rodriguez, what exactly were these guys going to testify to?

Defence Counsel Kaffee Unless I'm mistaken, they were going to testify under oath that they had absolutely no recollection of anything.


My question: Is there any case law (or other sources of law) testing the limitations on situations where counsel conducts a ruse against a witness, and the judge is also unaware of the ruse, and is therefore also (temporarily) misled?

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The broader question is a bit tricky and has many dimensions. It is probably easiest to go over some of the ground rules.

There are probably other particular issues that could come up, but those are the only ones that occurred to me at the moment.

Caveats and Disclaimers

Also, it is worth noting that the considerations that apply are different in criminal v. non-criminal trials, in the U.S. v. other countries, U.S. state courts v. federal courts, in jury trials v. bench trials, and in the civilian v. military justice systems ("A Few Good Men" is a quasi-criminal U.S. court-martial case under the military justice system without a true jury.) At least to start with, I will limit my answer to civilian criminal jury trials in the United Sates.

At least in practice and interpretation, the United States has lower expectations of lawyers at trial than in many other common law countries. Prosecutors have higher duties to not be deceptive than criminal defense lawyers. There is a greater duty for defendants to disclose information that could be harmful to their case in civil cases (especially in state courts) than in criminal cases. The ethical duties of lawyers regarding candor in bench trials are more complicated because there are some facts that in a jury trial, a judge is allowed to know and consider when making rulings in the case, but a jury is not allowed to know.

Military justice is its own thing with far less formal rules of procedure and deeply different basic assumptions than in trials in civilian courts.

For example, in a military trial, the prosecutor, the defense lawyer, the defendants and the judges are all soldiers who owe heightened duties to the same government and the military mission, relative to participants in a trial in a civilian court, that can take priority over the duties a lawyer owes to his client, or duties of judges to respect due process. A prosecutor is not permitted to advance frivolous and groundless positions for any reason.

Some Notable Rules

Opening Arguments and Offers Of Proof

You are not allowed in an opening argument to a jury in a civilian criminal trial, or in an offer of proof to a judge in support of the validity of questions you would like to ask, to state that you will present evidence later in the case that you do not believe in good faith that you will introduce. You are not required, however, to identify all evidence that you plan to introduce in your opening statement.

But, if you say you will offer up evidence later in the case believing that you will introduce it, and then decide later on that you don't need to and want to offer up that evidence after all, you aren't required to do so.

For example, in a case that I tried not so long ago, both sides had expert witnesses. The other side's expert witness testified first and we got him to say everything that we wanted our expert witness to say in cross-examination. We were also worried that our expert witness might say something that would hurt our case because he understood some complicated facts in the case better than the other side's expert witness who didn't realize that those facts were an issue. So, when it was my turn to present the expert witness (who was supposed to have bee the last witness in the case) that we'd said in opening arguments would testify for several hours, we told the court, "we planned on calling Mr. So and So as an expert witness, but have concluded that his testimony would be cumulative so we conclude our case now," after which the Court immediately moved on to closing arguments which we knew that we'd have to present right away, but the other side expected to have several more hours to think about while our last expert witness testified consistently with his previously disclosed expert witness report for a couple of hours.

What the lawyer did in "A Few Good Men" (which was in substance an "offer of proof" to provide authority for him to ask certain questions) came close to the line of what is permissible in terms of saying that you will introduce evidence when you don't actually plan to do so, but probably didn't cross the line because he didn't say what they would testify to if called. This would be bad form, and it might undermine the lawyer's credibility with the judge not just in this case, but in the long run, but a lawyer could decide as this one did, that this downside was worth it.

Statements About Lying Witnesses

Neither the prosecution lawyer nor the defense lawyer is allowed to say that they know that a particular witness was lying. This is because this turns the lawyer into a witness and puts the lawyer's credibility at issue. This is also because a statement like that can be used to signal to the jury that the lawyer knows something based upon evidence that the jury didn't hear (perhaps because they weren't allowed to hear it) that they should consider when weighing credibility. Numerous felony convictions are overturned every year because a prosecutor told a jury that a witness was lying. These statements are prohibited without regard to whether they are true, false or debatable.

Of course, a lawyer can say, "as you evaluate the credibility of the first witness you heard you should consider the fact that he will avoid a life in prison term and receive a $1,000,000 life insurance policy payout and that the first witness is blind and yet told you the exact color and texture of the sweater that the defendant was wearing even though the first witness doesn't claim to have ever touched that sweater." The lawyer simply isn't allowed to connect the dots and conclude for the jury that therefore, the first witness is lying.

Arguments Based Upon False Inferences

As a general rule, in a civilian criminal jury trial, a defense lawyer is allowed to ask questions in cross-examination and make arguments in closing arguments that are based upon inferences from the evidence that was presented that the defense attorney knows to be false, so long as the factual testimony presented is not known to be false.

For example, the defense lawyer could argue in closing arguments, "the prosecution did not rule out the possibility that Fred Heinz was present at the murder scene, so they haven't ruled out the possibility that Fred Heinz rather than my client committed the murder," even if the defense lawyer happens to know that Fred Heinz was actually on vacation in another country at the time of the murder.

Similarly, a defense lawyer could ask a witness on cross-examination, "Isn't it true that you hide the murder weapon at the requests of your boyfriend and didn't see my client at all that evening?", even if the defense lawyer knows that his client's girlfriend asked the witness to hide the murder weapon and not the witness's boyfriend. The witness of course, would simply answer "no, that isn't true.", but the defense lawyer's question would put the possibility into the heads of the jurors, possibly leading them astray.

(The second example is a little more complicated than that, because the defense lawyer's question is only allowed if there is some foundation established in earlier evidence to show that the boyfriend asked the witness to hide the murder weapon. If not, the prosecutor could object to the question and the judge wouldn't allow the witness to answer it. Whether a defense lawyer can ethically ask a question knowing that it violates the rules of evidence hoping that the prosecution won't object to it and knowing that even if the question is overruled by the judge that it will give the jurors a hint about a possibility that is actually known by the defense lawyer to be false, is somewhat of a gray area.)

Also, a lawyer is absolutely allowed to ask cross-examination questions not knowing what the answer will be, even though that is risky and usually considered to be bad trial practice, and a lawyer is allowed to ask questions that limit a witness to telling an incomplete story that sounds bad, even though the whole story, if told, would not sound so bad, and even if the lawyer knows that the other side won't get an opportunity to tell the whole story for some reason later on.

For example, suppose that the lawyer asks a witness, "you just told the jury that you saw this fight happen?" to which he responds, "yes." "And, you just have normal vision don't you?" "Yes." "But, isn't it true that you were three miles away from the scene of the fight when it happened." "Yes.

Now that sounds like it really discredits that witnesses testimony, even if the lawyer asking the question and the witness and the prosecutor and the judge all know that the witness saw the fight occur though binoculars from the top of the Empire State Building. Normally, this could get corrected with rebuttal testimony. But, suppose that the defense lawyer offering this cross-examination asked the questions in a dull voice like it was a tedious detail and noticed that the prosecutor had been distracted looking at texts on his phone while the defendant was cross-examining the witness and so didn't notice this line of questioning, and therefore was likely to say, "no further questions, your honor" when the judge asked him if he had any rebuttal testimony he'd like to offer from this witness.

In that situation, the defense lawyer hasn't acted improperly in causing the jury to make a misleading inference from the testimony, and the defense lawyer is allowed in closing arguments to heavily emphasize that the key prosecution witness who says he saw the fight admits that he was three miles away when it happened, knowing that this argument is disingenuous.

Ultimately, a defense lawyer's job is to get the best result possible for their client without violating any relevant ethical rules which are specifically and intentionally relaxed for them relative to other lawyers in some respects regarding advancing frivolous and groundless positions.

A prosecutor, in contrast, has a duty to advance only claims that the prosecutor believes to be supported by probable cause, to not hide exculpatory evidence, and to seek justice rather than having a duty to try to convict and get a maximum sentence without regard to guilt or innocence (in principle even if not all prosecutors act this way).

Testimony And Evidence Know To Be Intentionally False

A lawyer is not permitted to let a witness or his client provide testimony to the court that he knows to be perjured. If his witness starts to commit perjury on the stand, the lawyer has to immediately stop the examination of that witness and discuss the problem with the judge. In many circumstances, the lawyer must correct a knowingly false statement that his witness has provided to the court even if he only learns that the statement was knowingly false after that witness is off the stand if the lawyer learns of this before the jury renders its verdict (or for that matter within the time allowed for post-trial motions).

Gray areas come in when the lawyer doesn't know that the testimony is true or false, and knows that someone is under oath, but also knows that they aren't a very credible person and that the person sometimes lies in important situations, and indeed avoids knowing the truth.

Similarly, gray areas come into play when the lawyer knows that the witness is likely to be mistaken in the testimony that is offered, but knows that the witness is sincerely doing his best to tell the truth on the stand as he understands it to be.

Likewise, a lawyer is not allowed to introduce evidence that he knows to be doctored or forged (i.e. claiming that it is authentic), unless the lawyer explains in the course of introducing the evidence that it is a doctored or forged document and is offering it to show that somebody doctored or forged the document. And, if the lawyer later discovers that the document was doctored or forged before the jury renders its verdict (or within the time allowed for post-trial motions), the lawyer has to tell the court that this happened.

Pre-Trial Disclosures

While the prosecution has a duty to disclose all exculpatory evidence in its possession prior to a trial in a civilian criminal case (something called Brady disclosures), the defense's duty to disclose what evidence it will offer, or what evidence it knows exists, is extremely narrow. There are a couple of kinds of defense strategies (like an alibi defense or a self-defense defense or certain disputes regarding expert testimony) which the defense must disclose that it plans to use at trial, prior to the trial. But, the defense has much more latitude to call surprise witnesses and to introduce surprise evidence at trial than the prosecution does.

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Sample Case

I can offer Rees v Bailey Aluminium Products Pty Ltd & Anor [2008] VSCA 244 (5 December 2008), a successful appeal that the plaintiff was denied a fair trial due to the misconduct of the barrister of one of the defendants. The Hon. Marilyn Warren AC summarised this in a speech in 2009 [my emphasis]:

It was conceded on appeal that senior counsel for the respondent had, during cross-examination, sought to convey that the appellant and the third party had engaged in a conversation in the court precinct which amounted to them conspiring to pervert the course of justice. The intimation was that they were planning to fraudulently implicate the respondent as being responsible for the applicant’s accident thereby exonerating the third party. However, no evidence was adduced to support this allegation and it was not put to the appellant, a clear breach of the rule in Browne v Dunn.

In fact, the cross-examination was based upon the personal observation by senior counsel for the respondent of the appellant and the third party in discussion outside the court building. Further criticism was made of the method of cross-examination in relation to counsel repeatedly cutting the witness off, treating his own questions as answers of the witness and disregarding the trial judge’s repeated interventions.

The Court of Appeal held that the various aspects of the conduct of senior counsel for the respondent during the trial had breached the duty to the court. The Court noted that an allegation of fraud with no factual basis ‘constitutes a serious dereliction of duty and misconduct by counsel’ and that the obligation not to mislead the court or cast unjustifiable aspersions on any party or witness arises as part of the duty to the court.

Other examples of senior counsel’s dereliction of his duty to the court are also described in the judgment, including a failure to comply with a ruling of the trial judge, failures to meet undertakings provided to the trial judge and the introduction of extraneous and prejudicial matters in the closing address.

The case makes for instructive reading and is a signal that practitioners must remain ever mindful of their role as officers of the court and the standards of professional conduct that must attend such a position. The desire to win a case has no part to play in the assessment by a practitioner of their responsibility towards the court. The duty to the client is subordinate to the duty to court. There is a line between permissibly robust advocacy and impermissible dereliction of duty. It is incumbent upon practitioners to continue to examine the ethical dimensions of their behaviour and consider their actions in the context of their role as officers of the court.

A Few Good Men

Lt. Kaffee misled the court. Indeed, part of the dramatic tension of this scene is that both his co-council had previously warned him that he "could get in a lot of trouble".

In the particular exchange, you quote he intimated that he had evidence that the flight exited and that the Airmen would provide it - this was not true. Notwithstanding, when he launches into his famous tirade at Col. Jessop he lays out a sequence of events for which he had no evidence for the role Col. Jessop played (he did have the evidence of his clients for part of the role Lt. Kendrick played). Now, it happened to be a correct sequence of events but, without evidence, a lawyer is not allowed to lay it before the court.

It is likely that Col. Jessop's statements in response would be inadmissible, both in the current case and any future case against either Col. Jessop or Lt. Kendrick. As a practical matter, a jury does not have to give reasons for their decisions and a jury that had heard what was said, even if it was later ruled inadmissible, might well find not enough evidence for a conviction in the evidence that was admissible - after all, they get to decide what "reasonable doubt" means.

As to misconduct proceedings against the defence team they do have a tiny bit of wiggle room. It is my recollection that the Airmen were described as "rebuttal witnesses" by Lt. Cdr Galloway and not Kafee and neither had spoken to Lt. Weinberg. They could claim that the misleading of the court was unintentional and due to a communications failure between the three of them - except Kafee admitted it to Cpt. Ross. Perhaps Cpt. Ross felt his duty to the court lay more in tha abstract notion of justice rather than the specifics of this case.

Good movie, not real law.

  • The first example would very likely be considered permissible conduct of an attorney in a U.S. civilian criminal jury trial (illustrating that the different court systems draw the line regarding what is permissible in different ways in different jurisdictions). In general, in the U.S., counsel has weaker duties as an officer of the court than in many other common law jurisdictions, especially as defense counsel in criminal cases. – ohwilleke Feb 8 at 1:59
  • @ohwilleke which is “the first example” so I can clarify my answer? – Dale M Feb 8 at 2:01
  • The material under the heading "Sample Case". – ohwilleke Feb 8 at 2:01

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