Deception at Trial
There’s an artistry to trial presentation. Even judges who decry gamesmanship and abhor trial by ambush understand that there are better and worse ways of carrying out a witness examination or argument. So, while the rules might prevent you from bushwacking the other side with a new piece of evidence, they do not require you to precisely telegraph your approach to the case. If a witness is caught in a lie because they “didn’t see where you were going” with a line of questioning or an attorney wastes time in their closing preempting material that you had no intention of discussing, that’s part and parcel of being an effective advocate.
But while a little misdirection may be part of the practice, outright deception is not allowed. ABA Model Rule of Professional Conduct 4.1 broadly mandates that a “a lawyer shall not knowingly: (a) make a false statement of material fact or law to a third person.” Rules 3.3 and 3.4 contain even more specific duties of candor toward opposing counsel and tribunals. And state ethics rules contain similar prohibitions.[1] So, you can’t outright lie. And even less explicit forms of trial deception are generally looked unfavorably upon by judges and legal ethics authorities.
Of course, that doesn’t stop some lawyers from engaging in deceptive behavior anyway. So, while acknowledging that none of what follows are good ideas, what kinds of deception might you expect to encounter at trial?
1. Trust Me, I’m One of You
The most basic form of deception falls into what I call the “trust me, I’m one of you” bucket. You’ve probably seen it some version of it yourself. A lawyer who you could have sworn was single shows up to trial wearing a wedding band. An attorney who never seemed terribly observant starts wearing a yarmulke when appearing in front of an Orthodox judge or a crucifix in front of a Catholic judge. And a litigation team that was exclusively white men adds a female associate or person of color when it comes time for trial.
The intent is obvious – the other side hopes to curry favor or gain credibility by appearing to have some common connection with the judge or jury. While some versions of this can be pretty shameless, it’s unlikely to result to result in serious consequences. Perhaps a savvy judge will chide an attorney for their newfound religiosity, but that’s about it. [2]
Should you try this kind of thing at trial? I’d advise against it. Even short trials involve many hours in a courtroom in front of judges and jurors without much to distract them. You may get away with a wedding band – married folk don’t obviously act differently than unmarried ones – but anything more than that and you run a real risk of saying or doing something that makes clear that you aren’t really in the club. This is most obvious with token additions to a trial team; jurors will notice if the only speaking members of your stock-photo-ready trial team are the older white men. Many in the public are already predisposed to believe that lawyers are “phony” and woe to the advocate who gives them proof that this is correct. Be the best version of yourself in front of the jury and avoid trying to be someone else.
2. He’s Not Really a Grieving Widower, Is He?
A dastardly twist on the above comes courtesy of the King of Torts, Melvin Belli. Rather than subtly suggesting that the attorney or his client is “one of you,” this trick involves subtlety hinting that the other side is not what they appear to be.
In his memoir, [3] Belli writes about a negligence trial involving a woman killed in an automobile collision. Her husband, a middle-aged businessman, sued the defendant for negligence leading to the crash. The visibly grieving widower was a sympathetic character, and the defense team was concerned about the impact he was having on the jury, sitting sadly alone in the courtroom day after day.
According to Belli, the defendant’s lawyer arranged for a young, attractive secretary to come into the courtroom toward the end of trial. She sat herself next to the plaintiff widower in the gallery. Once sure that at least some of the jury had seen her, she smiled at the plaintiff, leaned over to quietly ask him a series of irrelevant questions, and then patted him on the hand as she left. In the words of the defense counsel: “Just one look at the cold expressions on the lady jurors' faces was enough to tell me that we were home free.” [4]
While this specific dirty trick is somewhat narrow, the potential variations are as limitless as prejudice itself. Any negative stereotype about a party or their demographic background can be given physical form to drop by for “moral support” as the trial plods along. While there is no specific ethics rule on point, the potential downside to engaging in this level of chicanery is serious. I do not advise that you try this.
But be aware if some characters straight out of central casting mysteriously drop by your trial. And don’t hesitate about asking why they’ve decided to show up. Even in a public courtroom visitors can be asked why they’ve chosen to attend. A few well-placed questions may ensure that your courtroom remains free of character actors and walking stereotypes.
3. Go Easy On Me. It’s My First Trial!
Moe Levine, famed as one of the greatest plaintiff’s lawyers of all time, was not shy about currying favor with juries. In his book On Advocacy, [5] he claimed to have taken full advantage of the sympathy that a junior attorney receives from a jury when trying his first case. In fact, he was so pleased by the effect that “I’m doing my best, this is my first trial” had on juries that he continued to tell juries that he was trying his first case over and over again, for the first ten or fifteen years of his practice. [6] According to Levine, he only stopped doing it after a judge – who had seen the act before – called him out for doing it, saying “Please, you have been before me forty times.” [7]
Should you try this? Again, I would not recommend it. But you could consider doing what Levine did afterwards. Once he was called out for his “first trial” shenanigans Levine “decided I would change that, and since then I have told juries that, 'I have been around so long that I do not have to try bad cases.’” [8]
4. But That’s Not My Client!
The idea of a witnesses identifying the defendant in a courtroom always feels a little phony. After all, the defendant usually sits in a particular place, at the defense table beside their lawyer. Because of this, you can generally pick out the defendant even if you’ve never seen them before. So even when a witness genuinely knows what a defendant looks like, an in-court identification is not really like a conventional lineup.
Relying on that, more than one attorney has tried the “but that’s not the defendant!” trick. The Court of Appeals for the Ninth Circuit described one such instance in United States v. Thoreen, [9]
In February 1980, [Attorney Thoreen] represented Sibbett, a commercial fisher, during Sibbett's non-jury trial before Judge Tanner…. In preparing for trial, Thoreen hoped that the government agent who had cited Sibbett could not identify him. He decided to test the witness's identification.
He placed next to him at counsel table Clark Mason, who resembled Sibbett and had Mason dressed in outdoor clothing denims, heavy shoes, a plaid shirt, and a jacket-vest.
Sibbett wore a business suit, large round glasses, and sat behind the rail in a row normally reserved for the press.
Thoreen neither asked the court's permission for, nor notified it or government counsel of, the substitution.
On Thoreen's motion at the start of the trial, the court ordered all witnesses excluded from the courtroom. Mason remained at counsel table.
Throughout the trial, Thoreen made and allowed to go uncorrected numerous misrepresentations. He gestured to Mason as though he was his client and gave Mason a yellow legal pad on which to take notes. The two conferred. Thoreen did not correct the court when it expressly referred to Mason as the defendant and caused the record to show identification of Mason as Sibbett.
Because of the conduct, two government witnesses misidentified Mason as Sibbett. Following the government's case, Thoreen called Mason as a witness and disclosed the substitution. [10]
Attorney Thoreen was probably expecting the court to congratulate him on his clever proof that the government witnesses were unreliable. Instead, the court recalled the witnesses, had them identify his actual client, convicted his client, and then found Thoreen in criminal contempt. On appeal, the Court of Appeals affirmed, finding that Thoreen’s tactic was “misleading and obstructive of justice.” [11] Oops!
The Supreme Court of Illinois reached similar result in People v. Simac. [12] There an attorney was defending a client charged with reckless, unlicensed driving in connection with an accident. Again, the case depending on an eye-witness identification, so the attorneys sat “a clerical worker employed at his law firm” next to him at counsel’s table. The state’s witness misidentified the clerical worker as the defendant. After the state rested its case, the attorney revealed the ruse and moved for a directed verdict. Instead “[t]he order prepared by the court stated that defense attorney is held in direct contempt of court for having a person bearing the likeness of defendant sit at the counsel table with him in the location usually occupied by defendant.” [13]
On review, the Illinois Supreme Court affirmed, finding that the conduct “embarrass[ed], hinder[ed], and obstruct[ed] the court and the proceedings.” [14] While both Simac and Thoreen are a little fuzzy on the precise ethics rules that were violated, it seems likely that the first word –“embarrassed” – may be driving some of the decision. Judges do not enjoy being tricked in their own courtroom, it makes them feel foolish and undermines their sense of control over the proceedings.
And as clever as some of these ideas are, that’s ultimately where they run aground. As satisfying as it might be to bamboozle opposing counsel – who often has it coming – any such tricks can easily offend the judge. And there’s very little tactical benefit worth facing down a contempt order from the one person in the courtroom that no amount of cleverness can outmaneuver.
[1] See, e.g., New York Rules of Professional Conduct §§ 3.3, 4.1, 4.3.
[2] I’ve yet to encounter any discipline cases based on this kind of behavior, though I would love to be proven wrong.
[3] Melvin Belli, Melvin Belli: My Life on Trial, pp. 107-08 (1976).
[4] Id.
[5] Moe Levin, Moe Levin on Advocacy (2009).
[6] Id. at 100.
[7] Id.
[8] Id.
[9] 653 F.2d 1332 (9th Cir. 1981).
[10] Id. at 1336-37
[11] Id. at 1342. The Court of Appeals suggested, somewhat dubiously, that Thoreen could have done what he did had he only informed both the court and the prosecutor in advance. Good luck trying that!
[12] 161 Ill. 2d 297 (1994).
[13] Id. at 419.
[14] Id. at 310.
