Credibility in the courtroom

Part 2 – why the attorney should not try to mislead the judge:

Sometimes the result in the courtroom comes down to credibility – whether it is with a jury at trial or with a judge in a motion hearing, the decision maker is not likely to rule in favor of a person he or she does not trust, and judge or jury is not likely to forgive the advocate that attempts to mislead them.  It is not always the case that an advocate or witness is caught red-handed in a lie – I believe that, whether there is hard evidence or not, with the heightened awareness that comes with the courtroom setting, judge and jurors will sense that a person is not being straightforward.  They may not intellectualize why they do or don’t trust the advocate or the witness, but they have a feeling that nags at them that something just doesn’t add up.

When making representations to the court this doesn’t just affect the outcome of a single motion hearing, it has long term consequences.  A judge may not notice or care about the 100 times that I have appeared before him or her and given them the straight truth, but if I try to mislead them once they will remember it forever.

I recently had a hearing on a motion to reopen a case in the municipal court, where the defendant entered a guilty plea at his bond hearing the morning after his arrest.  The grounds to reopen the case were simple – there was no plea colloquy, there was no knowing and voluntary waiver of his rights such as his right to counsel, or his right to trial by jury and all of the constitutional rights that come along with the right to a trial by jury.  The recording of the bond hearing reflected that there was no plea colloquy.

The prosecutor, in opposing the motion to reopen, argues to the court that a plea colloquy is not necessary, hands up two cases, and reads from one a passage where it says, essentially, that the guilty plea was affirmed in that case because the defendant knew he had a right to trial and waived it.  The prosecutor then argues that nothing more is necessary – after all, the case she has handed up says so.

Except that is not what the law says – the defendant has to knowingly and voluntarily waive his rights for the plea to be valid, including the right to counsel, including the right to trial by jury, etc.  I simply pick up the case the prosecutor handed up, flip to the next page, and read to the court where the opinion I’m holding says that all of those rights were waived on the record in that case, and that is why the guilty plea was affirmed.

As a minister of justice, as opposed to an advocate whose sole objective is to obtain a conviction, I think the appropriate response is to concede when you know that the law is not on your side.  When I get a brief or memorandum from a client who has employed a jailhouse lawyer to write for them, they typically search through cases for a passage, or single sentence, that supports their position, then cite that case as supporting authority.  It really doesn’t work that way.  We even have an ethics rule that requires attorneys to disclose contrary authority:


(a) A lawyer shall not knowingly:

(1) make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;

(2) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; . . .


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