Evidence and Ethics: Litigating in the Shadows of the Rules
Posted: 5 Dec 2007 Last revised: 11 Mar 2008
Obviously, it is virtually inconceivable that we could identify and catalog all of the possible scenarios that will face attorneys as they litigate cases. Litigation routinely creates situations that require counsel to make difficult choices. No list of possibilities or set of rules would ever be truly complete or particularly helpful.
This article introduces, then analyzes, two scenarios to examine the customary conduct of attorneys and judges during criminal litigation. The scenarios seek to place the attorney in each scenario in a realistic predicament in which unresolved ethical questions remain after application of all evidence and ethics rules. The applicable rules are identified, analyzed, and applied within the scenarios to discuss the role of lawyers in the litigation setting. Additionally, the analysis addresses three schools of thought in professional ethics: namely, zealous advocacy, personal conscience, and professional conscience.
The first scenario is drawn from an actual homicide prosecution in which the prosecution's evidence addresses motive. Scenario 2 is built from several rape cases. The scenario examines previous false claim evidence in a rape case. In this scenario, the evidence is defense-proffered. The proffered evidence in each scenario introduces the potential for prejudice. The evidence also provides an opportunity to examine rules of evidence and ethics and how they protect or fail to protect against prejudice
The piece notes the difficulty of identifying beforehand the countless situations attorneys may face during litigation and the difficulty of drafting rules sufficiently detailed to be useful to attorneys and judges during trials, yet general enough to apply to the broad range of circumstances likely to be confronted. Nevertheless, some possibilities for strengthening the guidance to counsel during litigation are suggested.
Keywords: attorney, character, criminal, defense, ethics, evidence, false claim, homicide, judge, litigation, motive, personal conscience, prejudice, professional conscience, propensity, prosecution, rape, rule, zealous advocacy
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