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Courtroom Decorum


“Extrajudicial Statement”
Statement made outside the court; such statements are of concern when we examine the effect publicity has on a court case.

“Personal Opinion” 
Prohibited statement by a lawyer during the trying of a case; since personal opinion by a lawyer is not admissible testimony or evidence, its use may prejudice the administration of justice.

Maintaining decorum in and around a courtroom is not merely a superficial means of protecting the image of lawyers and judges – it is absolutely essential to the administration of justice. 

The look and feel of a standard courtroom is quite formal and imposing. There are pews, an area that resembles a dais or altar, and there is a ranking figure who presides over meetings. The aesthetics of a courtroom are a function of the public’s respect for the administration of justice, as well as a manifestation of our understanding of the power that certain signs and symbols may have over people. The judge’s robes, the hushed intimacy, the ceremonial practices, the standard seating arrangements – these are all symbols of a place where justice is to be reverentially served.

The lawyer’s role in maintaining decorum is substantial. What the lawyer says and fails to say, who the lawyer calls to the stand, and what the lawyer demonstrates to a jury as evidence all impact the decorum of the courtroom. As we have discussed many times before, the lawyer is not only the advocate for a client – she is an officer of the court, bound to uphold the court’s integrity and to preserve the administration of justice. As such, the Model Rules, as well as the American Bar Association’s Canons of Judicial Ethics, speak volumes on the responsibilities a lawyer has in and around the courtroom. 

Lawyers and Prejudicial Statements

Given their central role in the administration of justice in a courtroom, things that lawyers say do have an important impact on the administration of justice. Certain things that lawyers say are likely to have a negative or prejudicial effect on the outcome of a proceeding. This is of special concern in any matter that is triable to a jury – and certainly where a person’s freedom or life is on the line in a criminal matter. See Model Rule 3.6, Comment [5]. Of particular concern to the ethical authorities are the lawyer's comments on the following subjects:

  • The character, credibility, reputation, or criminal record of a party, suspect or witness;
  • The identity of a witness;
  • A party’s or witness’s expected testimony;
  • The possibility of a guilty plea by a criminal defendant;
  • Existence or contents of a confession, admission, or statement given by a defendant or suspect (as well as the refusal or failure to make such a statement); 
  • The results of examinations or tests performed; or the refusal or failure of a person to take such tests;
  • Any opinion as to the guilt or innocence of a defendant or suspect in a criminal proceeding;
  • Any information known by the lawyer which is reasonably likely to be inadmissible at trial or which would be substantially prejudicial if disclosed; 
  • The fact that defendant has been charged with a crime (unless the lawyer also states that the charge is only an accusation and defendant is presumed innocent unless or until proven guilty). See Model Rule 3.6, Comment [5]

A lawyer must therefore be especially careful when attempting to discuss such issues during a trial. Take the following examples: 

  1. A prosecutor wants to mention the fact that the defendant on trial has killed two people, once in self-defense, and the other time in a brutal beating. The prosecutor must be very careful not to introduce any evidence of these acts unless the judge deems it acceptable. Otherwise, the jury will be prejudiced in its judgment.
  2. In a criminal trial, the fact that a defendant withdrew a plea of guilty should not be introduced, so as not to risk a jury determination that is not based on the evidence presented in the case. The reason for plea bargaining has to do with economy of administration – we give defendants a chance to bargain so that the government will not have to invest in the time and expense demanded by a trial. Because of the stress a defendant suffers during the criminal defense process, the law often gives a defendant a chance to change his mind and withdraw a guilty plea that, were it not for the stress that the defendant was under, he would not have entered. Therefore, we would not want the defendant’s admission of guilt in such an agreement to bar him from obtaining his constitutionally-guaranteed right to a trial. See United States v. Herman, 544 F.2d 791 (5th Cir. 1977).

The above are just two examples of many instances in which information can damage the administration of justice. Below we will discuss some other issues associated with maintaining courtroom decorum. 

Asserting Personal Opinions

Attorney's personal opinions are not admissible as witness testimony. They are not admissible evidence, and should play no role in influencing the outcome of a case. Therefore, the attorney may not offer such opinions to the jury. Another reason for preventing attorney opinions is this: If one side has a garrulous attorney, who spews forth personal opinions on every aspect of his client’s case, and the opposing attorney does not respond in kind, the jury might interpret her silence as evidence that her case is not sound. 

So as not to influence the outcome of a trial in a way that does not take into account admitted evidence, a lawyer is prohibited by the Model Rules from asserting a personal opinion as to the following:

  • the justness of her client’s cause;
  • the credibility of a witness;
  • the culpability of a civil litigant; or
  • the guilt or innocence of an accused in a criminal proceeding. See Model Rule 3.4 (e)

Here’s an example of a personal opinion: 

A lawyer is presenting a closing argument on behalf of a client in a contract dispute. If the lawyer says to the jury, “I’ve been at this job for a long time, folks, and I’ve seen it all. Let me tell you one thing – this guy is lying.” In this case, the lawyer is impermissibly arguing his own personal opinion. Such opinions have no place in a trial, because they cloud the evidence that is actually admissible. See United States v. Bess, 593 F.2d 749 (6th Cir. 1979).

States, however, cannot limit lawyers to only the “general nature” of a defense “without elaboration,” as such limitation have been held to be void for vagueness.  Gentile v. State Bar, 501 U.S. 1030 (1991)

Lawyers Acting as Witnesses 

In order to admit a lawyer’s personal knowledge or testimony in a case, the lawyer has to testify as a witness under oath. See Model Rule 3.4(e). However, in most situations, a lawyer who knows he will appear as a witness is prohibited from advocating. However, there are exceptions to the rule:

  • where the lawyer’s testimony relates to an issue that is not contested in the case;
  • where the testimony relates to the nature and value of legal services rendered in the case; or
  • if disqualification would result in a substantial hardship on the client. See Model Rule 3.7(a)

The problem with lawyers acting as witnesses is that such a function is not consistent with the adversarial process. Lawyers acting as advocates for clients are supposed to advance their client’s position and persuade the court of the correctness of their client’s position. The lawyer might have a financial interest in the outcome of the case, and this interest impacts his actions in the courtroom. When lawyers act as witnesses, on the other hand, their role is to provide impartial, objective testimony for the court to use as evidence in making its decision. The witness’s job is to inform, and not to persuade. 

When a jury is presented with testimony by a lawyer, the jury is forced to consider the lawyer as an impartial witness disseminating information, and may not base the lawyer's credibility on the case that the lawyer has presented on behalf of his client. This is a very difficult additional burden for a jury already taxed with the complexities of sorting out the various issues involved in the case. 

Trial Publicity

A celebrated or notorious trial may attract a lot of publicity. A lawyer must know how to conduct herself under the glare of video cameras and flash bulbs, especially since publicity could have an unwanted hand in influencing the outcome of a trial. The Model Rules address the realities of the modern lawyer’s frequent struggle with intrusive publicity. 

A lawyer may not make an “extrajudicial statement” “that a reasonable person would expect to be disseminated by means of public communication…” if he “…knows or reasonably should know that it will have a substantial likelihood of materially prejudicing” the outcome of a case. This rule constitutes an attempt to strike a balance between the needs of the court for privacy (and the right to a fair trial) with the right of free expression as guaranteed by the Constitution. See Model Rule 3.6, Comment [1]

Gentile v. State Bar, 501 U.S. 1030 (1991) had a strong impact on the way the legal profession can enforce publicity regulation. In "Gentile", a lawyer was subjected to discipline for setting up a press conference and declaring his client’s innocence. The lawyer’s goal was to use the conference as a means to fend off adverse publicity. The United States Supreme Court held that while the lawyer should not have been disciplined, states may impose reasonable restrictions on the conduct of lawyers so as to prevent extrajudicial statements from prejudicing the outcome of a case. 

Criminal prosecutors, in particular, are most likely to be subject to discipline for their extrajudicial public statements. They are highly visible in the media and therefore must always be careful about what they say to the media, to avoid being subjected to discipline.

In order to clarify what a lawyer may say about a client’s case to the public, Model Rule 3.6(b) lists some permissible statements:

  • Information on the general nature of a claim, offense or defense involved, and (unless prohibited by law) the identity of persons involved;
  • Information already in a public record;
  • The fact that an investigation is in progress;
  • The scheduling or result of any step in litigation;
  • A request to the public for help in obtaining evidence;
  • A warning of danger concerning the behavior of someone involved in a case if it is reasonable to believe there is a likelihood of substantial harm to the public;
  • The defendant’s identity, residence, occupation, and family status;
  • Information necessary to aid in the apprehension of an accused or a defendant.
  • The fact, time, and place of a defendant’s arrest; and
  • The identity of the investigating and arresting officers or agencies, and information on the length of the investigation. 

The prohibition against making potentially prejudicial extrajudicial statements does not apply to lawyers who are not involved in the case at bar. Commentators or other attorneys outside the case enjoy First Amendment protections to analyze and comment on pending cases, just as anyone else in the public. See Polk v. State Bar, 374 F. Supp. 784 (1974). This should come as no surprise to those of you who have seen lawyers on television commenting on cases without abandon on the morning, afternoon, and nightly news. 

Evidence Tampering

For our final professional responsibility topic, we will look briefly at an area of the law which combines a few doctrines you have already seen – evidence tampering, also known as “spoliation” of evidence. 

It should seem obvious that a lawyer is not allowed to hide evidence related to a crime or that might prove a client liable or guilty of a crime. But think about the following scenario:

EXAMPLE: You are a lawyer for the accused in a murder trial. You stumble upon the murder weapon in a trash can after being given a “tip” on its whereabouts by your client. Do you tell the authorities where they can find it? If you do, will you be forced to reveal how you came across the weapon? This might mean you have to disclose client confidences. Certainly, your client would invoke his attorney/client confidentiality rights and prevent you from disclosing information related to the location of the murder weapon. Then again, because a client cannot simply “hand over” facts to a lawyer and expect never to have to disclose them, perhaps the information is not privileged. Perhaps you should have to provide the authorities with the information they will likely seek. 

As you can see, a number of issues come into play – issues related to our confidentiality doctrines, issues related to candor to the tribunal and to the adversary and issues related to the treatment of evidence. We talked about this in the context of documents – how it is unethical for a lawyer in possession of a “smoking gun” document to shred or file it away where neither the adversary nor the court will ever find it. Here, the problem with turning over physical evidence is made more complicated when we include the lawyer's duty of confidentiality in the equation. 

First off, as we have previously seen, Model Rule 3.4 holds that a lawyer may not “unlawfully obstruct another party’s access to evidence.” This includes hiding a murder weapon and shredding documents, of course. 

When it comes to physical evidence linking a suspect to a crime, lawyers have special obligations. If the lawyer comes across information related to evidence that links his client to a crime, the lawyer must leave the evidence in place. Removing the evidence is an ethical violation. If the client tries to give the evidence to the lawyer, whether or not the client is trying to hide the evidence, the lawyer has a responsibility to reject the evidence. If, by some method, the lawyer comes into possession of physical evidence, the lawyer is required to surrender the evidence to the authorities. See Model Rule 3.4

If the lawyer is asked by the authorities to reveal the source of evidence, the lawyer has to be careful not to reveal information disclosed by his own client. If information related to the evidence came from the client, the attorney-client privilege will apply. 

Prosecutors in a criminal trial also have a duty to reveal evidence. They might be tempted not to reveal information or evidence that could be exculpatory. Prosecutors are required by the Model Rules to immediately disclose to the defense any evidence known to them that “tends to negate the guilt of the accused or mitigates the offense.” See Model Rule 3.8(d). This principle is always applicable – whether it is around the time of trial, or during sentencing. Note that the duty of a prosecutor to turn over exculpatory evidence is more than just an ethical imperative. It is a Constitutional right of a defendant that the prosecutor turn over exculpatory evidence. See Brady v. Maryland, 373 U.S. 83 (1963).

Failure to properly deal with evidence in an ethical fashion can cause a lawyer to be exposed to criminal liability as an accessory after the fact. Moreover, a lawyer who hides evidence will have violated numerous Model Rules, including 1.2(d), which holds that a lawyer may not “assist a client in conduct that the lawyer knows is criminal or fraudulent,” and Model Rule 8.4, which holds that a lawyer may not engage in “conduct involving dishonesty, fraud, deceit…” and “conduct that is prejudicial to the administration of justice.”