Beware of Danger Zones When Addressing a Jury: My Cousin Vinny

Beware the danger zones when addressing a jury. Why should counsel avoid violating the Rules of Professional Conduct when addressing the jury? The consequences of a violation include: a mistrial; reversal of a favorable verdict; loss of your license to practice law; a judge’s reprimand; and damage to your reputation. 

This post identifies common danger zones for trial lawyers when addressing a jury. Here is a prosecutor delivering an opening statement:

“The State will call Mr. Ethridge, who has tendered a plea of guilty to attempted strong-arm robbery.  And I’ll say this from the bottom of my heart, that there is one soul, who was at one time unclean and is now clean. . .  That’s good for the soul, and he is looking forward to this.  As much as someone tragically is, he’s at a point where he wants to be clean.  That’s really what it’s all about.  And there will be evidence in this case that Mr. Ethridge is wanting to let it all out.   This is his day to let all these things fly.  He’s beyond that now.  Hallelujah.”  

The South Carolina Appellate Court in Gilchrist v. State, 565 S.E.2d 281, 285 (S.C. 2002) explained that the solicitor (prosecutor): “Cannot vouch for the credibility of a witness by expressing or implying his personal opinion concerning a witness’ truthfulness. . .” Rule of Professional  Conduct 3.4 states that counsel shall not state a personal opinion as to . . .the credibility of a witness.”

Here is another prosecutor in closing argument: “Whenever a jury acquits a person who has been proven guilty they don’t follow their oaths.  And if you let the defendant, Tracy Nelson, walk out of this courtroom on this evidence I would suggest you have not lived up to your oaths.” The Florida Court of Appeals held: “. . .ultimate deductions from the evidence are for the jury to draw.  Counsel may argue what deductions in his judgment the evidence would reasonably support, but under no circumstances is he warranted in offering dogmatic statements as to what the evidence proves.” People v. Nelson, 737 N.E.2d 632, 639, 193 Ill. 2d 216 (2000).

Regarding dogmatic statements to the jury, watch this scene from My Cousin Vinny:

Another danger zone is never say “I”. RPC 3.4 (d)(3) states: “A lawyer shall not in appearing as a lawyer before a tribunal on behalf of a client shall not: assert a personal opinion as to the justness of a cause, the credibility of a witness, the culpability of a civil litigant or the guilt or innocence of an accused but the lawyer may argue, upon analysis of the evidence, for any position or conclusion with respect to the matters stated herein.

A mother cat decided to take her kittens out for a walk. The kittens had never been outside the house. They encountered a Rottweiler that was growling and drooling at them. The mother cat went up face to face with the dog—and barked. The Rottweiler turned and ran away in fear. The  mother cat took her kittens back under the porch, gathered them around her and said, “Now I need to talk to you about the importance of a second language. 

The point is that you need not state a personal opinion; use a second language. Never say, “I”; say, “The evidence shows.” 

ERADICATING “PROSECUTORIAL MISCONDUCT”

-->

The word “misconduct” has nasty connotations.   “Misconduct” has been defined as “intentional wrongdoing” and specifically “deliberate violation of a law or standard especially by a government official.”[1]   When referring to alleged prosecutorial error, some appellate courts have elevated the prosecutor’s conduct to that tantamount to criminal behavior.  For instance, State v. Campbell, 23 P.3d 176, 181 (2001), observed:  “The question of whether a particular prosecutor has been guilty of misconduct in the trial of a criminal case is the subject of some relatively controversial recent decisions by our Supreme Court and by this court.  .  .  .”  (Emphasis added.).  

When a trial judges commit trial errors and are reversed for them, appellate courts do not consider finding the trial judges guilty of “judicial misconduct.”  How receptive would an appellate court bench be to finding “trial judge misconduct” when the allegation on appeal refers to trial error, not bad or dishonest conduct by the trial judge.  Also, it is ironic when an appellate court applies the deprecatory description of “prosecutorial misconduct” in rendering a decision on alleged epithets employed by a prosecutor in closing.  “Trial error” is a more apt description for all but the few cases where the prosecutors’ conduct actually fits the description of “misconduct.”  

This discussion suggests putting an end to use of the phrase “prosecutorial misconduct” when it is an inaccurate description, and that is a small part of why this article is entitled “Eradicating ‘Prosecutorial Misconduct.’”  But more significantly, this article and future ones explore significant areas of vulnerability for prosecutorial error that appellate courts  have considered under the rubric “prosecutorial misconduct,” and offer ways to make sure no prosecutorial error is committed.  No matter what the label is, prosecutorial “error” or “prosecutorial misconduct,” we want none of it.

Prosecutors are “ministers of justice.” In its 1935 decision of Berger v. United States, the United States Supreme Court held:

The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done.  As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer.  He may prosecute with earnestness and vigor--indeed, he should do so.  But, while he may strike hard blows, he is not at liberty to strike foul ones.  It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."[2] 

The Comment to Model Rule of Professional Conduct 3.8 “Special Responsibilities of a Prosecutor” echoes Berger: “A prosecutor has the responsibility of a minister of justice and not simply that of an advocate.” This is the elevated role of the prosecutor.

The Washington's Supreme Court in State v. Gibson, 75 Wn.2d 174, 177 (1969) stated, "The closing paragraph in State v. Montgomery could well be on the desk of every prosecutor as a constant reminder of the high duties of his office."  Here is the paragraph in that 1909 State v. Montgomery decision:

            It is not our purpose to condemn the zeal manifested by the prosecuting attorney in this case.  We know that such officers meet with many surprises and disappointments in the discharge of their official duties.  They have to deal with all that is selfish and malicious, knavish and criminal, coarse and brutal in human life.  But the safeguards which the wisdom of ages has thrown around persons accused of crime cannot be disregarded, and such officers are reminded that a fearless, impartial discharge of public duty, accompanied by a spirit of fairness toward the accused, is the highest commendation they can hope for.  Their devotion to duty is not measured like the prowess of the savage, by the number of the victims.[3]

Prosecutors rightfully are held to a higher standard of conduct than any other lawyer. The goal of this and upcoming articles is to eradicate not only the misuse of the phrase “prosecutorial misconduct” but also trial error that can be avoided by pointing out danger zones for prosecutors.     

           

---

[1] Merriam Webster Dictionary

[2] Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed 1314 (1935).

[3] State v. Montgomery, 56 Wash. 443 (1909).

JUROR ONLINE MISCONDUCT

Juror Googles the Defendant

Recently a family member of mine who is a prosecutor finished a jury trial. The jury convicted. He was talking to the jurors after the verdict and learned that one of the jurors had Googled the defendant in violation of the jury instructions. The juror learned information that had not been admitted at trial. The juror did not communicate what was learned was to the other jurors. Now, following his prosecutorial duty, my family member disclosed the juror’s misconduct to the judge. A new trial may well be granted. All the time, money and stress expended so far is likely to go down the drain.

Preventing juror misconduct with social media is a major goal of today’s justice system. A prior post here noted the state of Washington’s Pattern Jury Instruction committee created a poster to warn jurors not to go online and access information about the case. Other courts have used sterner measures. In August, 2011, a Fort Worth, Texas trial judge held a juror in a civil auto accident case in contempt for trying to friend the defendant and discussing the case on Facebook when the jury instructions forbid the jurors from discussing the case online. The juror was dismissed and after that he posted a message to the defendant on his Facebook that said in part “. . . I guess you know what it feels like to be prosecuted too. Good luck with everything.”

What other measures can be taken to prevent this form of juror misconduct?

CIVILITY CREED

A Creed to Guide Professional Conduct

Civility is not a new subject here – see earlier post. Just attended the first of three sessions at Seattle University Law School on civility. I sat next to and visited with Judge Harry McCarthy who was there as a speaker. Judge McCarthy served on the Professionalism Committee of the Washington State Bar Association that promulgated the Bar Association’s Creed of Professionalism. A plaque with this Creed should be on the desk of every lawyer.

Washington State Bar Association Creed of Professionalism

As a proud member of the legal profession practicing in the state of Washington, I endorse the following principles of civil professional conduct, intended to inspire and guide lawyers in the practice of law:
·In my dealings with lawyers, parties, witnesses, members of the bench, and court staff, I will be civil and courteous and guided by fundamental tenets of integrity and fairness.
·My word is my bond in my dealings with the court, with fellow counsel and with others.
·I will endeavor to resolve differences through cooperation and negotiation, giving due consideration to alternative dispute resolution.
·I will honor appointments, commitments and case schedules, and be timely in all my communications.
·I will design the timing, manner of service, and scheduling of hearings only for proper purposes, and never for the objective of oppressing or inconveniencing my opponent.
·I will conduct myself professionally during depositions, negotiations and any other interaction with opposing counsel as if I were in the presence of a judge.
·I will be forthright and honest in my dealings with the court, opposing counsel and others.
·I will be respectful of the court, the legal profession and the litigation process in my attire and in my demeanor.
·As an officer of the court, as an advocate and as a lawyer, I will uphold the honor and dignity of the court and of the profession of law. I will strive always to instill and encourage a respectful attitude toward the courts, the litigation process and the legal profession.

This creed is a statement of professional aspiration adopted by the Washington State Bar Association Board of Governors on July 27, 2001, and does not supplant or modify the Washington Rules of Professional Conduct.

And yes you can order a mounted copy of the Creed for your desk from the Bar Association for $20 by going here.

CIVILITY IN PRETRIAL, TRIAL AND APPELLATE ADVOCACY

Principles of Civility, Integrity and Professionalism

Last week I was at the University of Montana Law School teaching at their Advanced Trial Advocacy course and met Don Robinson. Don is a member of the American Board of Trial Advocacy, and during the course he lectured on civility and showed a video produced by ABOTA, which is intended to encourage civility in the practice of law.




AMERICAN BOARD OF TRIAL ADVOCATES

ABOTA has promulgated Principles on Civility, Integrity and Professionalism which are to be followed by its members. The principles for courtroom behavior are set out below. The remainder of the principles can be found on line at the ABOTA website. Wouldn’t life be better if all lawyers adhered to them?

American Board of Trial Advocates Principles of Civility, Integrity and Professionalism:

When In Court I Will:

1. Always uphold the dignity of the court and never be disrespectful.
2. Never publicly criticize a judge for his or her rulings or a jury for its verdict. Criticism should be reserved for appellate court briefs.
3. Be punctual and prepared for all court appearances, and, if unavoidably delayed, notify the court and counsel as soon as possible.
4. Never engage in conduct that brings disorder or disruption to the courtroom.
5. Advise clients and witnesses of the proper courtroom conduct expected and required.
6. Never misrepresent or misquote facts or authorities.
7. Verify the availability of clients and witnesses, if possible, before dates for hearings or trials are scheduled, or immediately thereafter, and promptly notify the court and counsel if their attendance cannot be assured.
8. Be respectful and courteous to court marshals or bailiffs, clerks, reporters, secretaries, and law clerks.

PRETRIAL DISCOVERY TRAIN WRECK

The Steven‘s Ethics Trial and the Prosecutors’ Ethics

No topic gets more attention in my Seattle University Law School Pretrial Advocacy class on criminal case discovery than the prosecutor’s responsibility to turn over exculpatory information. Violating the duty can lead to disastrous consequences. A prosecutor can lose the case – do it right or do it again. The prosecutor can be reprimanded, destroy his reputation, lose her ticket to practice law and even risk contempt.

All these potential consequences might await on the horizon for the United States Attorneys in the Senator Stevens' case. Doing it again isn’t going to happen; there will be no retrial. Charges have been dismissed with prejudice. It’s a train wreck.

How ironic that a prosecution of Ted Stevens for ethics violations ends with Stevens walking away claiming vindication and the United States attorneys facing charges of ethics violations and potentially contempt of court and ruined reputations.




Dismissed : Ethics violation for failure to disclose Alleged: Ethics violation for failure to disclose

It’s so simple that a prosecutor’s discovery responsibilities can be summed up this way: if it hurts, give it up. The ethical responsibility is spelled out in Rule of Professional Responsibility 3.8(d). The prosecutor’s constitutional obligation was articulated in Brady vs. Maryland in 1935, and it has been said that every prosecutor’s office should have this declaration of a prosecutor’s role on a prominently displayed plaque:

"The United States Attorney is the representative not of an ordinary party to a controversy, but of a sovereignty whose obligation to govern impartially is as compelling as its obligation to govern at all; and whose interest, therefore, in a criminal prosecution is not that it shall win a case but that justice shall be done. As such, he is in a peculiar and very definite sense the servant of the law, the twofold aim of which is that guilt shall not escape nor innocence suffer. He may prosecute with earnestness and vigor--indeed, he should do so. But, while he may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one."

Berger v. United States, 295 U.S. 78, 88, 55 S.Ct. 629, 633, 79 L.Ed 1314 (1935).

LAWYER LINCOLN’S LESSONS

Lesson 1: A Trial Lawyer’s Creed

When I left the prosecutor’s office for the first time way back, my colleagues gave me the multi-volume set of Sandburg’s biography of Abraham Lincoln. They knew he was my role model for being a lawyer. He still is.

In this bicentennial year of Lincoln’s birth, we can still learn from his trial lawyer’s creed:

“I am not bound to win.
But I am bound to be true.
I am not bound to succeed.
But, I am bound to live up to what light I have.
I must stand by anyone that stands right.
Stand with him while he is right,
And part with him when he goes wrong.”

Abraham Lincoln