American Justice

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."

When the Constitutional framers drafted the first ten amendments of the Constitution more than two hundred years ago, commonly known as "The Bill of Rights," their intent was to protect individuals from undue government interference. The rights they enumerated were deemed so basic to the concept of justice that without them true democracy could not flourish.

The Amendments have since been liberally construed and codified to ensure that those who stand at the greatest risk of losing their liberty are afforded maximum protection from what has been perceived the gravest danger of all: An overreaching government left unchecked. Of course, the framers could have little imagined the complex issues that would today riddle our courtrooms. They could not have foreseen how the "fighting words" exception to the First Amendment would be used to litigate against hate crimes. And they certainly did not foresee a day when forensic technology would demand answers to questions like whether compelled DNA sampling is a violation of Fourth Amendment search and seizure or Fifth Amendment freedom from self-incrimination. So below we revisit the Constitution to understand the bases of contemporary criminal law, which remains the cornerstone of American Justice.

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Meaning ... even the Nazi party or Ku Klux Klan has the right to convene 'peacefully' in front of a Synagogue or a black university. Recent limitations have been imposed on hate-crimes for speech intended to and reasonably likely to incite violence against certain protected classes, such as racial and ethnic 'minorities' and homosexuals.

See Blueprint for a Murder, where a publisher was held accountable for detailing a murder plan; Also see The Matthew Shepard Story , where a gay-bashing homicide led to an exception for the use of language intended and reasonably likely to incite violence against protected classes, including minorities and homosexuals.

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

Meaning ... this one is still hotly contested, but the right to bear arms has not been deemed a fundamental liberty guaranteed to the states via the 14th Amendment equal protection clause.

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Meaning ... the government can occupy private property under a theory of "eminent domain," where it is rationally related to the execution of national security, public welfare and military defense. Nonetheless, citizens are entitled to the just value of any damage or destruction that derives from this 'taking.' Of course, this hasn't come up much, since the United States has thus far waged its wars on other countries' soil.

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Meaning ... citizens cannot be subjected to random searches by police or government officials simply because someone doesn't look like they 'belong' in a certain neighborhood or because they look 'suspicious.' This has largely arisen in cases involving racial profiling, where police were formally given great discretion based on their 'seasoned experience' to conduct warrantless stops and searches. Now, more specific reasons must be articulated to justify even a limited intrusion and where none are present, the fruits of the illegal search are deemed constitutionally 'tainted' and inadmissible.

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Meaning ... a defendant is not required to take the stand in court. Moreover, the prosecution may not even allude to a defendant's failure to take the stand. To prevent the use of trials as 'fact-finding' expeditions by the government, the double jeopardy clause ensures that if the prosecution fails to produce sufficient evidence and the jury returns a verdict of not guilty or acquittal, the defendant walks away freely and cannot be retried, even if damning evidence is later discovered. Note that this does NOT pertain to civil trials.

See Getting Away with Murder, where the double jeopardy clause enabled a killer to walk free; For an example of how military jurisdiction facilitated two separate criminal trials for same crime, see The Green Beret Murder Mystery.

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defense.

Meaning ... despite what you may have seen on TV, someone may not be detained by police or held in custody for hours on end with only cigarettes, threats and coffee for sustenance. In addition, police must inform potential suspects of their right to counsel (even if a suspect states that they already know their rights). Once a request for a lawyer is articulated, a moratorium on further questioning attaches, and any further admissions based on police questioning will not be held constitutionally admissible, unless specifically voluntary.

See In the Hands of a Child, where a young girl was held and interrogated by police without counsel until she confessed to a crime, without necessarily understanding the nature of the charge. See also Who Is The Lipstick Killer?, where the failure of government to compel favorable witnesses led a jury to convict a man on uncorroborated testimony.

In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Meaning ... while twenty dollars doesn't go as far as it used to, the right to a trial by jury remains a mainstay of penal justice. In fact, in order to waive this right, a criminal defendant must be interviewed by a Judge with counsel present--called a plea colloquy--and sign a sworn affidavit. Cases that have arisen under this issue have dealt with whether plea terms have been contractually honored and whether a defendant was competence to understand the nature of the right being waived.

See We The Jury, a probing examination of jury selection, profiling and practices, featuring candid interviews with prosecutors and defense attorneys.

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Meaning ... even a criminal on death row cannot be caused to suffer unduly. In addition, sentences must be reasonably commensurate with the severity of the crime, which is why judges are given such wide discretion in sentencing.

See Justifiable Homicide, where the murder of a detested, abusive man who was hated by one and all led to a life sentence without parole; See also An Execution in Doubt, where a potentially innocent man was executed; See also Who is the Lipstick Killer, where failure to produce witnesses left an arguably innocent man-the first to finish a college degree from a jail cell-- to serve a life sentence; Lastly see Cruel and Unusual, for glaring cases of brutal police misconduct and excessive sentencing.

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Meaning ... some states, like Vermont, Hawaii and California, choose to give greater protections than those recognized under the Constitution. Federal law does not forbid states from granting or expanding individual liberties beyond those constitutionally mandated.

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Meaning ... states are permitted to pass laws, for instance zoning laws and health regulations, where the issue is not dealt with and pre-empted by Federal law. Smoking laws are an apt case in point.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. (excerpt)

Meaning ... the fundamental liberties enumerated in the Bill of Rights are extended to state courts through the due process or inclusionary clause (with the exception of the right to bear arms and the right to a grand jury). The Fourteenth Amendment was passed as a means to ensure that citizens from different states were afforded equal protection and would not face discrimination within their local judicial arena. Historically, this issue has come up to protect against local prejudice against "discrete and insular minorities."

See A Questionable Doctor, where a pariah in the community was charged and convicted and later exculpated for a murder on the basis of circumstantial evidence and local prejudice; See also The Hurricane Carter Story , where a young black athlete was falsely convicted for a triple homicide based on a questionable identification for nearly thirty years until the decision was finally overturned.

It is unclear what the State is referring to by "the direct appeal."

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."

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TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN






NO. 03-01-00584-CR

Ex parte Jesus Aviles, Appellant






FROM THE DISTRICT COURT OF TRAVIS COUNTY, 167TH JUDICIAL DISTRICT

NO. 002294, HONORABLE CHARLES F. CAMPBELL, JR., JUDGE PRESIDING

&


NO. 03-01-00547-CV

In re Jesus Aviles






ORIGINAL PROCEEDING FROM TRAVIS COUNTY

Jesus Aviles filed an application for writ of habeas corpus and plea in bar seeking to prevent the State from trying him on an indictment alleging intoxication assault and aggravated assault. The writ issued and after a hearing, the relief sought was denied. Aviles appeals from the order denying relief. In a related action, Aviles asks this Court to issue a writ of mandamus ordering the district court to issue a written judgment of conviction for driving while intoxicated (DWI) based on a jury verdict at a previous trial convicting him of that offense. We will reverse the court's order denying relief in the habeas corpus proceeding and conditionally grant the writ of mandamus.

BACKGROUND

Aviles was originally indicted for intoxication assault stemming from an automobile collision in which an Austin police officer was seriously injured (cause number 002294). In a second indictment (cause number 005714), the State added the charge of aggravated assault. Aviles was ultimately tried on a third indictment (cause number 9014041) that, like the second indictment, charged both intoxication assault and aggravated assault. The third indictment did not materially differ from the first two indictments in terms of the offenses charged and it is undisputed that all three indictments were based on the same criminal transaction. (1) The jury deliberated for several hours before returning a verdict acquitting Aviles of the assault charges, but finding him guilty of the lesser included offense of DWI. The trial court accepted the verdict and discharged the jury. The court then assessed punishment at 180 days' confinement in the county jail and imposed sentence in open court.

The State later learned that the verdict was not unanimous on the assault charges and filed a motion to inquire into the validity of the verdict under Rule 606(b) of the Texas Rules of Evidence. (2) After a hearing, the court overruled the motion. (3) The State then obtained a trial setting for the second of the two original indictments (cause number 005714). Aviles then initiated the habeas corpus and mandamus proceedings now before us.

At the habeas corpus hearing, Aviles argued that his DWI conviction in cause number 9014041 constituted an acquittal of the charged greater offenses, and that double jeopardy principles barred further prosecution for either intoxication assault or aggravated assault. In response, the State called several jurors to testify that the jury, acting on the advice of the court bailiff, erroneously concluded that it was not necessary to reach a unanimous verdict of "guilty" or "not guilty" on each offense charged against Aviles before proceeding to the next charge. The foreperson testified that the jury was split 9-3 and 10-2 (guilty/not guilty) on the aggravated assault and intoxication assault charges, respectively. She then filled out and signed the verdict form, checking "not guilty" on the first two counts and "guilty" on the DWI count. However, because she was uncertain about the bailiff's advice, she noted the vote tallies, i.e., "9-3" and "10-2", on the first two counts in the right margin of the verdict form so that the judge would see it and "perhaps comment on it." The jury then returned to the courtroom to deliver the verdict:


COURT: All right. Let the record reflect that the attorney for the state, attorney for the defendant, the defendant and all the members of the jury are present and seated in the courtroom. Who is the presiding juror or foreperson? Is that you? All right. Have you reached a verdict in this case?


[FOREPERSON]: Yes, we have.


COURT: Would you deliver the verdict form to the bailiff so that he can hand it to me. All right. Let me ask the foreperson: Is this verdict the unanimous verdict of all members of the jury?


[FOREPERSON]: Yes, it is, your Honor.


COURT: All right. Thank you. Cause No. 90-14041, the State of Texas versus Jesus Aviles. Verdict of the jury.


Part A: We the jury find the defendant, Jesus Aviles not guilty of the offense of aggravated assault as alleged in the indictment and it's signed by the foreperson of the jury.


Part B: We the jury find the defendant, Jesus Aviles not guilty of the offense of intoxication assault as alleged in the indictment.


Paragraph C: We the jury find the defendant, Jesus Aviles guilty of the offense of driving while intoxicated and it's signed by the foreperson of the jury.


That is the unanimous verdict of all 12; is that correct?


[FOREPERSON]: Guilty verdict is - I mean the not guilty.


COURT: Would you say that again please, ma'am?


[FOREPERSON]: The guilty of DWI was unanimous. The other two were not.


COURT: All right. Thank you. All right.




While this exchange was taking place, there was a commotion in the courtroom as the victim's family reacted to the verdict. In his findings of fact in the habeas proceeding, the trial judge stated that because of the commotion neither he nor the prosecutors were able to hear the foreperson's remarks regarding the jurors' lack of unanimity. Before the foreperson was finished reading the verdict, the State's lead counsel left the courtroom to comfort the victim's family. The jury was not polled. The judge then discharged the jury, assessed punishment, and imposed sentence. To date the judge has not signed a written judgment in cause number 9014041.

After the hearing, the court denied the requested habeas corpus relief and plea in bar and set aside the verdict in cause number 9014041. The court subsequently filed findings of fact and conclusions of law. (4)

On appeal, Aviles claims that the double jeopardy clause of the United States Constitution bars the State from retrying him in cause numbers 002294 and 005714. He also seeks a writ of mandamus ordering the trial court to issue a written judgment in cause number 901404 finding him not guilty of the assault charges and guilty of DWI.


DISCUSSION

The Fifth Amendment guarantee against double jeopardy protects against a second prosecution for the same offense following conviction or acquittal and against multiple punishments for the same offense. See U.S. Const. amend. V; Illinois v. Vitale, 447 U.S. 410, 415 (1980); Cervantes v. State, 815 S.W.2d 569, 572 (Tex. Crim. App. 1991). (5) That a verdict of acquittal may not be reviewed without placing the defendant twice in jeopardy has been described as the most "fundamental rule in double jeopardy jurisprudence." Sanabria v. United States, 437 U.S. 54, 64 (1978). This holds true even where a verdict of acquittal is based on an "egregiously erroneous foundation." Fong Foo v. United States, 369 U.S. 141, 143 (1962) (per curiam); see also United States v. Martin Linen Supply Co., 430 U.S. 564, 571 (1977). In addition, the Texas Code of Criminal Procedure bars retrial of a defendant after an acquittal, "however irregular the proceedings may have been." Tex. Code Crim. Proc. Ann. art. 1.11 (West 1977). (6)

The State conceded at Aviles's habeas corpus hearing that the first and second indictments are fundamentally the same as the third indictment for which Aviles was tried and acquitted. As such, retrial would ordinarily be barred by double jeopardy. See Sanabria, 437 U.S. at 64. (7) Instead, the State contends retrial is permissible because the jury returned an invalid verdict which the court was not authorized to accept and render judgment on. We agree that the verdict the jury returned in this case was erroneous. See Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2002) (requiring a unanimous verdict by twelve jurors in felony cases). However, we conclude that the critical question in terms of the double jeopardy prohibition against multiple prosecutions is whether the court's action in accepting the verdict, discharging the jury, and imposing sentence effectively brought an end to Aviles's trial. We conclude that it did.

The concept of finality is inherent in the policy concerns that animate the double jeopardy prohibition against multiple trials. See United States v. Jorn, 400 U.S. 470, 479 (1971) (prohibition against double jeopardy "represents a constitutional policy of finality for the defendant's benefit in federal criminal proceedings"). With few exceptions, the State may not make repeated attempts to convict the accused "thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuing state of anxiety and insecurity, as well as enhancing the possibility that even though innocent, he may be found guilty." Green v. United States, 355 U.S. 184, 187-88 (1957). Society's awareness of the personal strain that a criminal trial places on the individual defendant is "manifested in a willingness to limit the Government to a single criminal proceeding to vindicate its very vital interest in enforcement of criminal laws." Jorn, 400 U.S. at 479.

While we are unaware of a Texas case that addresses finality in this exact context, the court of criminal appeals' recent decision in Ex parte Madding, 70 S.W.3d 131 (Tex. Crim. App. 2002), is instructive. In Madding, the trial court orally pronounced that the defendant's sentences would run concurrently, but later issued a written judgment ordering that the sentences were to run consecutively. Id. at 133. The court of criminal appeals held that once sentence was pronounced in open court it could not be increased by a later written judgment, which is "merely the written declaration and embodiment of that oral pronouncement." Id. at 135.


[T]he imposition of sentence is the crucial moment when all of the parties are physically present at the sentencing hearing and able to hear and respond to the imposition of sentence. . . . Once applicant was removed from the courtroom and began serving his sentence, it was too late to cumulate the sentence just imposed with an earlier one.




Id. at 135-36 (emphasis added). The court reasoned that to hold otherwise would violate the defendant's right to due process by depriving him of adequate notice of his sentence. Id. at 136; see also Jones v. State, 795 S.W.2d 199, 201 (Tex. Crim. App. 1990) ("No further ritual or special incantation from the bench is necessary to accomplish an adjudication of guilt beyond the pronouncement of sentence as required by law."). Similarly, Aviles was adjudged guilty of DWI when the court accepted the verdict and imposed sentence in open court. The trial court cannot forestall this result by refusing to issue a written judgment. In a criminal proceeding, a written judgment is "merely a record of events which have occurred in fact." Jones, 795 S.W.2d at 202; Ex parte George, 913 S.W.2d 523, 526 (Tex. Crim. App. 1995); see also Tex. Code Crim. Proc. Ann. art. 42.01 (West Supp. 2002). A trial judge is required to immediately enter judgment upon receipt of the verdict. Tex. Code Crim. Proc. Ann. art. 37.12 (West 1981). Furthermore, a trial judge may not receive a jury verdict and refuse to abide by it. Combes v. State, 286 S.W.2d 949, 950 (Tex. Crim. App. 1956); Hardy v. State, 261 S.W.2d 172, 174 (Tex. Crim. App. 1953).

The State cites United States v. Taylor, 507 F.2d 166 (5th Cir. 1975), and United States v. Love, 597 F.2d 81 (6th Cir. 1979), in support of its argument that the trial court lacked the authority to accept an invalid verdict. However, both cases are distinguishable. In Taylor, a juror died before the verdict was signed or returned in open court. 507 F.2d at 167. After assembling the remaining jurors and determining that all twelve had agreed on a verdict before the juror's death, the court then instructed the jurors to sign the verdict and return it to the court. Id. On appeal, the Fifth Circuit found that the votes taken in the jury room before the verdict was returned were merely preliminary, thus the verdict was invalid. Id. at 168-69. In reaching this conclusion, the Fifth Circuit held that "a jury has not reached a valid verdict until deliberations are over, the result is announced in open court, and no dissent by a juror is registered." Id. at 168; see also Tex. Code Crim. Proc. Ann. art. 37.04 (West 1981). (8) In Love, the trial court undertook a jury poll that revealed the jury's lack of unanimity and declared a mistrial. 597 F.2d at 82-3. On appeal, the Sixth Circuit, in addressing whether the trial court could poll a jury which had returned a not guilty verdict, upheld the declaration of a mistrial on the basis that the jury poll revealed the invalid nature of the verdict. Id. at 87.

While the foreperson in the present case did indicate a lack of jury unanimity, neither Love nor Taylor addresses the precise situation here, where a jury has signed and returned an apparently valid verdict which is then accepted by the court. Unlike Love, the jury was not polled nor was a mistrial declared. Having accepted the verdict, imposed sentence in open court, and discharged the jury without declaring a mistrial, the court effectively put an end to Aviles's trial. To hold as the State argues would destroy the concept of finality that attaches to criminal proceedings, paving the way for retrial of a criminal defendant years after a verdict of acquittal has been returned in a case.

As Love illustrates, the State could have easily avoided the result in this case by exercising its right to a jury poll after the verdict was read. See Tex. Code Crim. Proc. Ann. art. 37.05 (West 1981). The purpose of the jury poll is to ensure that "one of the prerequisites of a valid verdict[,] unanimity[,] has been achieved." Love, 597 F.2d at 85. Had the State requested that the jury be polled, it would have discovered the jury's nonunanimous verdict on the assault counts at a time when the problem could still be addressed. Presumably, the court would have then either declared a mistrial or sent the jury back for further deliberations. However, not only did the State fail to request a jury poll, but lead counsel for the State left the courtroom before the foreperson finished reading the verdicts.

We also find the court of criminal appeals' decision in Ex parte George instructive. 913 S.W.2d 523 (Tex. Crim. App. 1995). In George, the State refused to consent to the defendant's waiver of his right to a jury trial. Id. at 525. Although the State's consent to the jury waiver was required, the trial court nevertheless demanded that the State proceed to trial without a jury. Id. When the State refused, the court entered a judgment of acquittal. Id. The court of criminal appeals reversed on the basis that the trial court could not acquit the defendant because it lacked the authority to act as the fact finder in the case. Id. at 527.

In the present case, the court was authorized to accept the verdict. See Tex. Code Crim. Proc. Ann. art. 37.04 (West 1981). Although the foreperson's statement regarding the lack of unanimity on the assault counts could be viewed as "dissent," her statement was not sufficiently clarified by the court or the State, although they had the means to do so. The unique facts of this case, that the verdict may have been erroneous, did not deprive the trial court of the authority to accept it. Cf. Garcia v. Dial, 596 S.W.2d 524, 528 (Tex Crim. App. 1980) (holding that district court's jurisdiction in criminal trials includes power to make erroneous determinations in carrying out sentence or judgment of court into execution).

Finally, the informal verdict cases to which the State refers us are inapposite here. See State ex rel. Hawthorn v. Giblin, 589 S.W.2d 431 (Tex. Crim. App. 1979); Cardona v. State, 957 S.W.2d 674 (Tex. App.--Waco 1997, no pet.); see also Tex. Code Crim. Proc. Ann. art. 37.10 (West Supp. 2002). This was not a note from a still-deliberating jury seeking further guidance from the court, but a verdict, albeit erroneous, that was completed "guilty" or "not guilty" for each charge and signed by the foreperson. (9) In this respect, the verdict, at least on its face, met the statutory definition of "verdict" in the code of criminal procedure. Tex. Code. Crim. Proc. Ann. art. 37.01 (West 1981) (defining verdict as "written declaration by the jury of its decision of the issue submitted to it in the case"). (10)

Although the State conceded at oral argument that its case depends on whether the court was authorized to accept an invalid verdict, we will also address its other arguments.

The State additionally argues (1) that there was no formal acquittal in this case and (2) that the doctrine of manifest necessity, which applies to mistrials, applies here by analogy. We will address each argument in turn. The supreme court has held that an acquittal "must represent a resolution, correct or not, of some or all of the factual elements of the offense charged." Martin Linen, 430 U.S. at 571. In the cases cited by the State, there was either no trial or only a partial trial, thus no factual resolution of the elements had been made. See United States v. Appawoo, 553 F.2d 1242, 1244-45 (10th Cir. 1977) (holding that government's appeal of dismissal after partial trial did not violate double jeopardy clause; dismissal was not acquittal because based solely on constitutional grounds and did not resolve any factual elements of offense charged); George, 913 S.W.2d at 527 (no acquittal in absence of resolution of issues by authorized fact finder); Texas Dep't of Pub. Safety v. Norrell, 968 S.W.2d 16, 19 (Tex. App.--Corpus Christi 1998, no pet.) (holding that prosecutor's decision not to file charges was not acquittal).

The State relies primarily on George to argue that there was no acquittal in the present case. However, in George, there was no trial, a fact the court of criminal appeals found dispositive. 913 S.W.2d at 527. More significantly, double jeopardy was not at issue because jeopardy had not attached. Id. at 525. Instead, the court focused solely on whether there was a valid acquittal that would prevent retrial of the defendant under article 1.11 of the code of criminal procedure. Id. at 526. In the present case, jeopardy had attached and there was a full trial on the merits, after which the jury resolved the factual elements of the offenses charged and delivered a verdict.

The State also argues that the doctrine of manifest necessity applies by analogy to the present case. A mistrial does not bar further proceedings if there was a manifest necessity for declaring one. Ex parte Brown, 907 S.W.2d 835, 839 (Tex. Crim. App. 1995). The doctrine weighs the defendant's interest to a trial by a particular jury against society's interest in a just result. Wade v. Hunter, 336 U.S. 684, 688 (1949). The trial court did not declare a mistrial in this case. Even if it had, the doctrine of manifest necessity requires the court to first consider less drastic alternatives before declaring a mistrial. Brown, 907 S.W.2d at 839. Had the bailiff's misconduct come to the attention of the judge, he would have been obligated to consider such alternatives. It is at least plausible that after the jury deliberated for the several hours here, the judge may have considered sending the jurors back for further deliberations, with what possible results we can only speculate. The jury may have deadlocked, or returned a guilty verdict on one of the assault charges, or even not-guilty verdicts on the assault charges--we will never know. However, what the jury might have done is not the issue. We conclude that once the judge accepted the verdict and pronounced sentence in open court, the verdict was final. The court had the authority to accept the verdict and did so. The fact that the verdict apparently was erroneous cannot be addressed at this point; it is simply too late in the process. Therefore, we hold that double jeopardy bars reprosecution of Aviles in cause numbers 005714 and 002294 for the offenses of which he was acquitted in cause number 9014041. See Tex. Code Crim. Proc. Ann. art. 37.14 (West 1981) (conviction for lesser included offense bars retrial for greater offense).

Mandamus

Aviles also seeks a writ of mandamus ordering the trial court to issue a written judgment in cause number 9014041. To establish entitlement to mandamus relief, Aviles must demonstrate that (1) the act sought to be compelled is purely ministerial and (2) that there is no adequate remedy at law. Stotts v. Wisser, 894 S.W.2d 366, 367 (Tex. Crim. App. 1995). Although the State argues otherwise, entry of a judgment is a ministerial act. George, 913 S.W.2d at 526. Judgment in a criminal case "merely documents the fact of, and certain important events associated with, the process leading to conviction or acquittal." Id.

Thus, the question is whether Aviles has an adequate remedy at law. Aviles points out that, without a final judgment in cause number 9014041, he cannot appeal his conviction. We agree and therefore hold that Aviles has no other adequate remedy at law for the relief he is seeking. The State contends that resolution of the direct appeal is an adequate remedy because it will completely settle the issue presented. It is unclear what the State is referring to by "the direct appeal." Aviles has not brought a direct appeal of his conviction, but an appeal from the denial of relief in another cause. We construe the State's argument to be that the Aviles may appeal any conviction that results from retrial of the indictments in this case. However, a direct appeal from a subsequent proceeding barred by double jeopardy is not an adequate remedy. See Sanabria, 437 U.S. at 64. Therefore, we conditionally grant the writ of mandamus compelling the trial court to enter a final judgment in cause number 9014041 reflecting the jury's verdict in this case. The writ will issue only if the court fails to comply with our directive.

We reverse the order of the trial court denying habeas corpus relief and order that there be no further prosecution in cause numbers 002294 and 005714. We conditionally grant the writ of mandamus.




David Puryear, Justice

Before Chief Justice Aboussie, Justices Yeakel and Puryear

03-01-00584-CR -- Reversed and Rendered

03-01-00547-CV -- Mandamus Conditionally Granted


Filed: May 31, 2002


Publish

1. The third indictment added an allegation that defendant failed to yield the right of way.

2. Rule 606(b) provides:


Inquiry Into Validity of Verdict or Indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the jury's deliberations, or to the effect of anything on any juror's mind or emotions or mental processes, as influencing any juror's assent to or dissent from the verdict or indictment. . . . However, a juror may testify: (1) whether any outside influence was improperly brought to bear upon any juror . . . .


Tex. R. Evid. 606(b).

3. The trial court concluded that there was no authority for the State's motion because a 606(b) inquiry is made in the context of a motion for new trial, a motion the State cannot make. See Tex. R. Evid. 606(b); Tex. R. App. P. 21.1.

4. The conclusions of law state, among other things, that the bailiff exerted an improper outside influence on the jury under 606(b) which rendered the verdict void; that the court was without authority to accept the void verdict; that the verdict was not a valid acquittal; and that the jury had not reached a unanimous decision on the intoxication assault and aggravated assault charges.

5. The doctrine of double jeopardy is applied to the states through the Fourteenth Amendment. See Ex parte Preston, 833 S.W.2d 515, 517 (Tex. Crim. App. 1992).

6. Article 1.11 provides:


An acquittal of the defendant exempts him from a second trial or a second prosecution for the same offense, however irregular the proceedings may have been; but if the defendant shall have been acquitted upon trial in a court having no jurisdiction of the offense, he may be prosecuted again in a court having jurisdiction.


Tex. Crim. Code Proc. Ann. art. 1.11 (West 1977).

7. There is no dispute that jeopardy has attached in this case. See Crist v. Bretz, 437 U.S. 28, 35 (1978); Ex parte Preston, 833 S.W.2d 515, 517 (Tex. Crim. App. 1992). The State also stipulated that Aviles was in custody under the former indictments.

8. Article 37.04 provides:


When the jury agrees upon a verdict, it shall be brought into the court by the proper officer; and if it states that it has agreed, the verdict shall be read aloud by the judge, the foreman, or the clerk. If in proper form and no juror dissents therefrom, and neither party requests a poll of the jury, the verdict shall be entered upon the minutes of the court.


Tex. Code Crim. Proc. Ann. art. 37.04 (West 1981).

9. The trial judge apparently agreed that the verdict was at least facially valid, commenting at the hearing on the motion to inquire into the validity of the verdict: "It looks to me like we have a verdict form that is in due order under the statute."

10. We also find unpersuasive the State's argument that Aviles waived his right to assert double jeopardy by not objecting to the jury's lack of unanimity at trial. See Maula v. Freckleton, 972 S.W.2d 27 (2d Cir. 1992). The failure to object at trial does not preclude the assertion of a double jeopardy violation that is clearly apparent on the face of the record. Gonzalez v. State, 8 S.W.3d 640, 643 (Tex. Crim. App. 2000).

John Thomas Hubert, were you ethically obligated to present unreliable and misleading evidence to a jury?

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."

THE ETHICS OF EVIDENCE
J. Alexander Tanford
25 Am. J. Trial Advocacy 487 (2002)
[footnotes omitted and text editted]



I. INTRODUCTION

In my first trial as a 26-year-old Assistant District Attorney in Manhattan, I prosecuted a nefarious criminal charged with commercial burglary -- breaking into a warehouse at night. It is rare that anyone is caught for such a crime, but in this case, a passing police officer happened to see the perpetrator climbing out of a broken store front window with two fur coats in his hands while the burglar alarm blared. Commercial burglary is not a serious crime in New York, so the defendant had been out on bail for two years when the case went to trial. However, despite the passage of time and the defense attorney's best efforts to make this hoodlum presentable, my witnesses calmly and confidently identified the young man sitting next to his attorney as the "perp."

All was going well, until the close of the People's case. The defense attorney stood up and moved for a directed verdict on the ground that no witness had identified the defendant as the burglar. I was confused. Hadn't two witnesses identified him from the stand? The defense attorney smiled. My witnesses had identified a fellow public defender from the Legal Aid office who was the person sitting at counsel table. The actual defendant was sitting in the middle of the audience. I'd been duped! The judge looked at me and offered some kindly advice that I dismiss the case, because even if he denied the motion, the jury would never convict after the misidentification.

A few years later, as I began to teach and write about evidence and trial practice, I realized that the defense attorney had deliberately created false evidence. He had not suborned perjury, of course. Suborning perjury was wrong. He had merely set the stage for inevitable false testimony because he knew that my witnesses would assume that whoever was sitting at counsel table was the defendant, and would therefore identify the wrong man. His conduct had caused a miscarriage of justice, allowing a criminal who had been caught red-handed to go free to prey again upon the unsuspecting warehouses of New York. Surely this passive involvement in creating false evidence was just as unethical as active subornation of perjury. I started including a hypothetical in my classes based on this experience.

Recently, there has been substantial publicity about DNA tests showing that lots of people who were convicted for crimes were actually innocent, despite the fact that they had been confidently identified by eyewitnesses. This has caused me to revisit that small New York courtroom 25 years ago and wonder about my own role. In trial after trial as an Assistant District Attorney, I asked countless witnesses to "look around the courtroom" and see if they could identify the person who attacked, robbed, raped or sold drugs to them. However much defense attorneys tried to alter their clients' appearances, my witnesses unhesitatingly pointed them out. Was it because they really remembered the faces of the perpetrators, or were they just pointing out whoever was sitting at counsel table? I, too, had undoubtedly participated in the creation of false evidence, although it was so commonplace that I never thought about it at the time. Could such routine courtroom testimony actually be unethical?

Although the presentation of false, misleading or unreliable evidence would seem to be a core concern of those who worry about our litigation system, the ethics of evidence has been written about infrequently. In the small body of literature that does exist, the focus tends to be limited to the relatively easy problem of whether the Model Rules of Professional Conduct (or their predecessor, the Model Code of Professional Responsibility) prohibit an attorney from creating or using perjured and other kinds of false evidence. The ethics of dubious evidence is rarely addressed. By treating ethics as an issue only of what the rules say about the knowing use of false evidence, the literature ignores the more complex and common ethical issues concerning the use of evidence that is misleading, incomplete, or unreliable. This Article will attempt to fill some of that gap.

II. ETHICS AS PRINCIPLES RATHER THAN RULES

Most writings on the ethics of evidence approach the issue as an analysis of rules. They parse the text of the Model Rules, engage in statutory interpretation, and pose questions of ethics solely in terms of whether an attorney is likely to be successfully disciplined. Given the relative failure of the bar to police itself and the extreme unlikeliness that an attorney will be disciplined, this seems a poor way of approaching an issue of ethics.

Ethics are not rules, of course. They are moral principles that guide our lives as attorneys. The decisions we have to make in litigation are too variable and complex to be reduced to rules. The Model Rules may be the "law for lawyers," clearly defining the circumstances under which we can be found guilty of improper conduct and disbarred, but they are not coextensive with the concept of legal ethics. If we are to live lives as ethical litigators, we must make decisions concerning evidence based on more than the Model Rules -- we must (and do) rely on our experience, judgment, tradition, moral ideals, and character guided by moral principles that are supposed to push us in the direction of good lawyering.

The problem with thinking of ethics as rules arises most clearly when the Model Rules do not explicitly prohibit a proposed course of questionable conduct. In one memorable case in my early years, I prosecuted a 50-year-old prostitute for robbery after she hit one of her johns over the head with a lamp and stole his wallet. Before trial, the defense attorney had gotten her a part-time job at the New York Public Library as part of a drug-rehabilitation program. At trial, she showed up wearing a brown tweed suit, with her graying hair in a bun, took the stand and testified that she was a librarian. The jury looked at me like I was insane for accusing this nice old lady of being a prostitute. There is no ethical rule governing misleading clothing, nor getting a client a last-minute job, nor telling them to wash the dye out of their hair and look their age.

In the absence of broader ethical principles, lawyers are drawn to the position that anything that might increase their chances of winning that is not expressly prohibited, is permitted -- even required.

Conceptualizing the ethics of evidence as merely an exercise in the interpretation of rules also stifles discussion of the hard questions. False evidence is an easy issue. Questions about the propriety of misleading, incomplete and unreliable evidence are harder. If we limit ourselves to rule-thinking, we may end up saying vaguely that "[t]here is no Model Rules provision that expressly proscribes trickery" [William H. Fortune et al., Modern Litigation and Professional Responsibility Handbook 393-94 (1996)], other than the rule against knowing use of false evidence and proceeding no further. We can do a better job of thinking about the ethics of evidence.

III. THE FOCUS ON FALSE EVIDENCE IS TOO LIMITED

Because commentators approach the ethics of evidence as a question of rules, they usually frame the discussion in terms of its one clear rule: an attorney may not create, use or rely on evidence the attorney knows to be false. The Model Rules explicitly prohibit knowingly using false evidence. Rule 3.3 states that "A lawyer shall not knowingly [m]ake a false statement of material fact or law to a tribunal [or o]ffer evidence that the lawyer knows to be false." What is there to talk about -- exceptions to the rule? That is indeed the unlikely direction in which the literature runs. Are exceptions that permit a lawyer to use false evidence ethically?

Mostly, the literature is full of epistemological essays on when a lawyer "knows" that evidence is false. Is a little knowledge enough, or must the lawyer know falsity beyond a reasonable doubt? Can lawyers, like ostriches, hide their heads in the sand to avoid knowing something? To the extent that the literature touches on evidence that is not false, but merely misleading or unreliable, it simply points out that such evidence is not known to be false, so using it will not violate Rule 3.3. Lawyers are free to subvert justice to their hearts' content as long as they can tell the disciplinary commission with a straight face that they did not actually "know" the evidence was false. So far so good, if somewhat banal.

But now a problem arises. The false-evidence rule addresses when a lawyer cannot use evidence, or when the lawyer might be sanctioned, but does not give any positive guidance for the ethical use of evidence. The false-evidence rule literature assumes a dichotomous ethical universe in which whatever is not expressly prohibited must be permitted. Obviously, no rule says this, and it is a somewhat uncomfortable result to reach. Therefore, the discussions generally articulate an implicit rule requiring all non-false evidence to be presented, which they derive from the principle of zealous representation.

At times the discussion takes on a distinctly Orwellian tone, in which "knowing" and "false evidence" are given so narrow a meaning that nothing is known to be false, and zealous advocacy is given so broad a meaning that everything dishonest and deceitful is made mandatory. For example, one author posed the question, "What does an attorney really 'know'" about her client's intent to give false testimony, and then answered it as follows:

"[T]he question is a hard one, and requires that the attorney use "extreme caution" in answering. The reason is that suspicion of fraud is usually raised by the receipt of conflicting information, either from the client or in tandem from another party. This conflict alone does not appear to constitute "knowing," because "mere suspicion" is not enough to establish a possible client fraud; nor is "a mere inconsistency in the client's story sufficient in and of itself to support the conclusion" that he will commit a fraud on the tribunal. So what constitutes "knowing"? Although one court stated that an attorney should know, based upon her professional experience, if the client's representations are false, not all courts have not taken such a liberal view. For example, in United States v. Long, the Court of Appeals for the Eighth Circuit said only "a clear expression of intent," evidenced by "a client's announced plans" to commit fraud will constitute the level of knowledge required before an attorney may reveal a client confidence. The Second Circuit went even further in Doe v. Federal Grievance Committee ... [and] insisted upon a "clearly established" or "actual knowledge" standard, which is met "when the client acknowledges to the attorney that he has perpetrated a fraud upon a tribunal." .... Indeed, an attorney who, relying on suspicions or inconsistencies, prematurely jumps to the conclusion that her client is going to commit a fraud and discloses such to the tribunal may be liable for breaching her ethical duty to maintain her client's confidences and secrets.... When an attorney unnecessarily discloses the confidences of her client, she creates a chilling effect which inhibits the mutual trust and independence necessary to effective representation..... [A]sking the attorney to assemble and weigh the facts so that she may "know" if her client is committing a fraud is asking her to play judge and jury, a role that clearly does not belong to her. If the attorney does not "know for sure" that the evidence is false, she should present it; and, as long as the client does not admit that his story is false, even though "one knows in [one's] heart of hearts" that it is false. [Horgan, 29 New Eng. Law Rev. 795 (1995)"

To the extent that the literature has addressed a lawyer's affirmative obligations, it has generally assumed that there is no ethical principle relating specifically to evidence. The authors then fall back on the lawyer's general duties of client loyalty and zealous representation within the bounds of law. The problem is that neither of these principles says anything about using misleading, unreliable or incomplete evidence. Arguments that a lawyer is required to mislead a jury out of loyalty to a client, or that deliberate evidentiary deception constitutes zealous advocacy within the bounds of law, are unpersuasive. One should be able to be loyal to a client, a zealous advocate, and an ethical attorney without defrauding the jury. Is there really no ethical principle guiding a lawyer's decisions to use evidence?

A fair reading of the Model Rules cannot possibly produce the conclusion that the overriding ethical principle of litigation is "anything goes." A lawyer is not given carte blanche to ask trick questions, present unreliable or misleading evidence, and make any argument however deceitful, in the name of client loyalty and zealous advocacy. As one court stated, just before suspending an attorney: "Attorneys must 'possess a certain set of traits--honesty and truthfulness, trustworthiness and reliability, and a professional commitment to the judicial process and the administration of justice.'"

The Model Rules themselves place clear limits on this principle. They do not demand unrestrained zealous advocacy designed to win at all costs, but zealous advocacy within the bounds of law. Within even that more limited duty, there are perfectly clear ethical limits set by Rule 8.4 (c): "It is professional misconduct for a lawyer to ... engage in conduct involving dishonesty, fraud, deceit or misrepresentation."

This duty is further constrained by Model Rule 3.3(c), which says a lawyer should "refuse to offer evidence that the lawyer reasonably believes is false." Ethical Considerations promulgated under the superseded Model Code of Professional Conduct reminded lawyers they were supposed to avoid bringing about unjust results or inflicting needless harm on others. Lawyers owe a duty to the system of justice to utilize procedures that command public confidence and respect. Model Rule 3.4 (e) provides: "A lawyer shall not in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence."

Taken together, these statements reflect an ethic quite different from the amoral proposition that an advocate's primary duty is to win the case for the client, constrained only by the prohibition against using knowingly false evidence. They direct an advocate to act in good faith, to abide by rules of evidence and procedure, to avoid conduct that will deceive a jury, and to limit the use of evidence to that which the advocate reasonably believes is accurate. A lawyer is not obliged or even permitted to mislead the jury with unreliable and incomplete evidence, but must have a good faith basis for that evidence before presenting it in the first place.

IV. THE GOOD-FAITH PRINCIPLE

The good-faith principle goes beyond prohibiting the use of false evidence, and guides an advocate's conduct with respect to dubious evidence which the lawyer does not know for certain is false. The lawyer may only use or refer to evidence if the lawyer has a good-faith basis to believe that it represents the best recollection of a witness, and can be presented in accordance with the rules of evidence and procedure. This is a two-part standard under which an advocate must have both a factual and a legal basis for alluding to, asking about, offering, or relying on particular evidence. To have a good-faith factual basis, the attorney must have both a subjective belief that evidence represents the true recollection of a witness, and objective support for that belief, such as a deposition, statement, report, or interview notes. To have a legal basis, the attorney must have a reasonable legal argument that it is admissible under the rules of evidence and procedure.

A. FACTUAL BASIS

An attorney must have a factual basis for alluding to, offering, or relying on evidence at trial. That factual basis may not be wishful thinking. There are two requirements for a factual basis -- an attorney's subjective belief, and objective evidence to support that belief. The attorney's investigation and discovery must show a likelihood that a witness exists who believes that evidence to be true, could be called to testify to it, and would in fact testify to it. Under this principle, an ethical advocate will not mention dubious evidence in opening statement, will not attempt to present evidence believed to be inaccurate, will not ask a leading question that includes an unsupported factual suggestion, and will not incorporate into closing argument "surprise" misstatements and overstatements by witnesses that make the case seem more favorable than it is. By requiring both a subjective and objective factual basis, we avoid the superficial argument that because lawyers can never really "know" whether evidence is true or false, there are no ethical impediments to introducing dubious evidence regardless of objective indications of its unreliability.

First, an attorney must have a subjective belief that proposed evidence reflects the genuine recollection of a witness and is not a fabrication. This is not the same thing as whether the attorney personally believes the evidence is true. I once defended a man who was caught shoplifting food who claimed to be a field operative for the C.I.A. on a training mission to see if he could survive in a strange city for a month with no money and no identification. He wanted me to inform the judge that a conviction would jeopardize his security clearance. He stuck to this story despite my skepticism. I called the CIA to explain the situation and ask if they could verify his claim, but of course they denied any knowledge of this guy. Did I personally believe his story? No. Did I believe that my client genuinely thought he was in the CIA? Yes, although I also thought he was crazy.

Second, an attorney must have an objective basis for his or her decision to allude to evidence in opening statement or attempt to elicit it from a witness. Wishful thinking, intuition and impressions based on demeanor are not adequate to justify using or alluding to evidence. The attorney must be able to point to documents, statements, records, or depositions that indicate that an identifiable witness exists who has stated in the past that a particular fact is true, could be called to testify, and has been reasonably consistent in his or her assertions. Unrecorded statements from your client made during interviews satisfy the objective basis test, even though they may be unrecorded and confidential. The requirement of an objective basis is not for the purposes of proving to a court or disciplinary committee that one was acting in good faith, but is required for an advocate's own ethical judgment. Thus, confidential information gained from the client or through the attorney's work-product can supply that objective basis. Once a witness has in fact testified to something, the trial testimony itself supplies the objective, although not the subjective, basis for relying on the evidence in closing argument.

Third, the attorney must have a basis for believing the witness will actually show up in court and testify to their recollections. It is not enough that your client assures you his friends will show up, or that your opponent has put someone's name on their witness list. The attorney must satisfy him- or herself that the witness will actually testify. Serving a subpoena on a witness or obtaining the witness's firm promise to attend is usually adequate, although there may be circumstances where mere service of a subpoena is not enough. In the movie "Suspect," the defense attorney has a private investigator track down a homeless man with no fixed address whom she believes can supply her client with an alibi. The witness stabs the investigator, throws away the subpoena, and disappears into the night. The judge correctly cautions the attorney not to mention this missing witness to the jury because in all likelihood he will never be found.

B. LEGAL BASIS

The admissibility of evidence is controlled by rules of evidence and procedure. It is therefore obvious that an attorney must also have a legal basis for asking a question or offering evidence. He or she must have a reasonable belief that the evidence is admissible.

A lawyer should not attempt to get before the jury evidence which is improper. In all cases in which a lawyer has any doubt about the propriety of any disclosures to the jury, a request should be made for leave to approach the bench and obtain a ruling out of the jury's hearing, either by propounding the question and obtaining a ruling or by making an offer of proof.

For example, it would violate this principle to ask a witness if he or she has been convicted of drunk driving (even if true) because the rules of evidence limit impeachment to felonies and crimes of dishonesty. It would also violate this principle to ask a question alluding to inadmissible evidence and then "withdraw" it if the other side objects. As one court put it, it is improper for an attorney to ask a question "which he knows and every judge and lawyer knows to be wholly inadmissible and wrong."

This is a principle guiding an attorney's decision to attempt to introduce evidence. The ethics of offering evidence depend on an attorney's legal analysis prior to the offer, not on what happens afterwards. It is unethical to offer evidence believed to be inadmissible on the off chance that your opponent will not object or the judge will rule unexpectedly in your favor. This principle can also work in your favor. It is not unethical to have attempted to introduce evidence you thought was admissible just because an objection was sustained. Lawyers and judges will frequently have legitimate disagreements on the admissibility of evidence.

This part of the good-faith principle similarly should have both a subjective and objective component. The attorney must be able to point to a rule of evidence that plausibly supports the item's admissibility, and also have a subjective belief that the evidence properly be admitted under that rule.

V. ARE THERE DIFFERENT ETHICAL STANDARDS FOR CRIMINAL DEFENSE ATTORNEYS?

A number of commentators suggest that a criminal defense attorney is held to a lower ethical standard than other attorneys. Much of the discussion of whether a lawyer has a duty of zealous loyalty to a client that permits the ethical use of misleading, unreliable or false evidence focuses on the representation of criminal defendants. Prosecutors and civil lawyers are either ignored or distinguished from criminal defense attorneys. For example, Fortune, Underwood and Imwinkelried summarize the conflicting opinions about whether it is unethical for a lawyer to call witnesses for the purpose of creating a false impression as follows: "Perhaps the best that can be said is that a criminal defense lawyer may call the witnesses, a prosecutor may not, and civil lawyers should not." The suggestion of a different standard for criminal defense attorneys is implausible. There is certainly no general ethical principle permitting attorneys to practice deception, fraud, and trickery in order to further the important social goal of returning violent criminals to the streets regardless of guilt. Nor does a criminal defense exemption exist in the Model Rules. The provisions concerning the duty to investigate, confining one's zealotry to the bounds of law, the prohibition against false evidence, declining representation that would result in a violation of law or other fraud, exercising independent judgment that includes moral factors and acting good faith make no distinction between criminal and civil cases.

Then where does the claim come from? Selinger believes its proponents derive the claim of special rules for criminal defendants from the burden of proof. "The argument would be that [making the prosecution overcome false evidence] is just another legitimate way of putting the prosecution to its proof -- of making sure that the prosecution is not getting into a dangerous-to-the-innocent habit of bringing criminal charges on weak evidence -- which a defense lawyer is clearly permitted to do, under Model Rule 3.1, even on behalf of an admittedly guilty client."

The problem is that false evidence does no such thing. It does not simply put the prosecution to its proof. It is one thing to attack a weak government case by pointing out its weakness. It is another to attack a strong government case by confusing the jury with falsehoods.

The claim of a special rule for criminal lawyers also is sometimes tied to the defendant's constitutional right to the effective assistance of counsel. For example, Horgan argues that criminal defense attorneys are specially exempt from the rule requiring that attorneys disclose fraudulent evidence:

"[T]rust between attorney and client ... is the "cornerstone of the adversary system and effective assistance of counsel." A client... is unlikely to divulge all the information necessary for his defense if he feels that the attorney would violate the attorney-client privilege and pass the information on.... If the client withholds information, the truth cannot be ascertained, nor can the attorney fulfill her duty of candor to the court. This creates a catch-22. A client can fall into one of three categories: (1) one about whom the attorney has no suspicions; (2) one whom the attorney suspects of fraud; or (3) one whom has admitted his fraudulent intent (or it has been conclusively proven). If nondisclosure is not afforded to a client in the third group, a client in second group would be reticent to come forward with exculpatory facts that, although true, cannot be substantiated because of the client's fear that he may move into the third group and lose the protection of nondisclosure. If nondisclosure is not afforded to the second group, the same fear would hold true for a client in the first group. Therefore, nondisclosure can only serve its intended purpose if it is extended to all three groups."

An attorney trying to uncover suspected client fraud can do so "only if the client trusts the lawyer with information that might be embarrassing or incriminating." If the client knows the attorney has a duty of disclosure, that trust will never develop; therefore, the attorney may not gain the information necessary to uncover the fraud. Disclosure may also "prejudice the defendant in the very matter in which the lawyer is employed to defend him." Admittedly, it is hard to have sympathy for a client who is actually guilty of perpetrating a fraud on the court; but if the attorney's suspicions turn out to be wrong and the client is not guilty of fraud, the harm to the client may be irreparable. This is a risk too great to take.

Such commentators are defining effective assistance as helping a criminal defendant gain an acquittal, even if the accused committed the crime. Therefore, the lawyer must be allowed to whatever is necessary to get his guilty client acquitted. This is a distortion of the right to counsel. Nothing in the language concerning effective assistance of counsel to suggest that effectiveness is measured solely in terms of whether the defendant is acquitted, nor does a defendant have a right to an acquittal regardless of guilt. The argument of a special obligation for defense attorneys to assist their clients in presenting perjured testimony misperceives the professional advocate's function. "[D]efense counsel's paramount duty [to his client] must be met in conjunction with, rather than in opposition to, other professional obligations. Counsel does have an "obligation to defend with all his skill and energy, but he also has moral and ethical obligations to the court, embodied in the canons of ethics of the profession." The ethical strictures under which an attorney acts forbid him to tender evidence or make statements which he knows to be false as a matter of fact. His activities on behalf of his client are circumscribed by the principles and traditions of the profession and may not include advancing known false testimony in an effort to win his client's cause. It is clear [in this case] that counsel felt, based on his trial preparation, that the eleventh-hour change in appellant's story would result in his client's testifying falsely. Confronted with such a realization, counsel's obligation to both his client and the court is to use "all honorable means to see that justice is done," rather than to go to any lengths in an effort to see that a defendant is acquitted."

VI. THE ETHICS OF EVIDENCE UNDER THE GOOD-FAITH PRINCIPLE

A. FALSE EVIDENCE

1. DISCOVERING FALSE EVIDENCE BEFORE TRIAL

Although it is rare for attorneys to personally create false evidence, it is common for them to be presented with false evidence created by others. A party to an action may fabricate favorable evidence to improve the chances of winning. Family and friends may provide false alibis. A battered woman may falsely recant her statement that her boyfriend has beaten her. These situations also seem easy cases. It is unethical for an attorney to present false evidence. Whether the attorney has personally created it it is irrelevant. A "lawyer shall not knowingly offer evidence the lawyer knows to be false" regardless of the source of that evidence. Lawyers cannot present false and perjured evidence.

For some reason, however, some commentators seem to have a hard time with this basic ethical principle when it is a client who has created the false evidence and wants the lawyer to present it. A few have taken the lawyer-as-whore position, and argued that the lawyer must go along with a client's decision to commit perjury, and must present that false evidence at trial. For example, Liskov argues that the general principle in Model Rule 1.2(a) that "the lawyer shall abide by the client's decision... whether the client will testify" extends to a client's decision to testify falsely, despite other language in Rule 1.2(d) forbidding the lawyer to "assist a client in conduct the lawyer knows is criminal or fraudulent."

The best known proponent of this view is Monroe Freedman. He has argued that if a client cannot be dissuaded from committing perjury, the lawyer should go ahead and elicit the false testimony and rely on it in closing argument. Freedman rests his argument on the lawyer's duty of loyalty to the client, but in the process reduces that duty from a professional one to that of co-conspirator and criminal accomplice.

It has also been suggested that the lawyer has an obligation to present false and perjured evidence because the client has a "right to testify." Of course, there is no such right. The client, like every witness, only has the right to testify in ways consistent with the rules of evidence and procedure, and has no right to provide testimony in violation of those rules. Rules 601-03 restrict witnesses to testifying under oath which requires that they tell the truth. There is no "right" to testify falsely.

These attempts to justify a lawyer's limited use of false evidence when it has been created by the client are indefensible. There is no exception in the Model Rules for false evidence created by a client, and no suggestion that the lawyer must suddenly abandon his or her personal moral judgment. To the contrary, the ethical principles make clear that an attorney is not simply the client's mouthpiece. The preamble to the Model Rules is explicit:

Many of the lawyer's professional responsibilities are prescribed in the Model Rules of Professional Conduct, as well as substantive and procedural law. However, a lawyer is also guided by personal conscience and the approbation of professional peers..... A lawyer's responsibilities as a representative of clients, an officer of the legal system and a public citizen are usually harmonious.... In the nature of law practice, however, conflicting responsibilities are encountered. Virtually all difficult ethical problems arise from conflict between a lawyer's responsibilities to clients, to the legal system, and to the lawyer's own interest in remaining an upright person.... Such issues must be resolved through the exercise of sensitive professional and moral judgment guided by the basic principles underlying the Rules.

The Supreme Court has also been explicit. The lawyer's role is that of a professional who agrees only to fight for the client within the bounds of the law and ethics. "Although counsel must take all reasonable lawful means to attain the objectives of the client, counsel is precluded from taking steps or in any way assisting the client in presenting false evidence or otherwise violating the law. This principle has consistently been recognized in most unequivocal terms by expositors of the norms of professional conduct since the first Canons of Professional Ethics were adopted by the American Bar Association in 1908. .... These principles have been carried through to contemporary codifications of an attorney's professional responsibility. ... Both the Model Code of Professional Responsibility and the Model Rules of Professional Conduct ... do not merely authorize disclosure by counsel of client perjury; they require such disclosure. [U]nder no circumstance may a lawyer either advocate or passively tolerate a client's giving false testimony. This, of course, is consistent with the governance of trial conduct in what we have long called "a search for truth." The suggestion sometimes made that "a lawyer must believe his client, not judge him" in no sense means a lawyer can honorably be a party to or in any way give aid to presenting known perjury." [Nix v. Whiteside, 475 U.S. 157, 166-67 (1986)]

If a client creates a phony receipt, the attorney may not offer it. If a witness offers to lie and create an alibi, the lawyer may not call that person. If a client is going to lie from one end of his testimony to the other, the lawyer must keep him off the stand. At least as an abstract proposition, these principles are ethically indisputable.

But what if the issue is small fabrications rather than major ones. What if a client intends to testify truthfully most of the time, but will insert one or two pieces of false testimony here and there to strengthen the case? The attorney cannot overreact and refuse to present the truthful evidence in order to keep the false evidence out of the trial. Even if the attorney tries to dissuade the client from committing perjury, and carefully steers around the false evidence on direct examination, the attorney has no real control over whether the client blurts out the false testimony anyway, or the topic is raised on cross-examination. To analyze an attorney's ethical obligation under this circumstance requires that it be divided into two different issues. What must the attorney do before the fact, and what must the attorney do after the fact?

If an attorney learns of a client's or other witness's intent to commit partial perjury before trial, the lawyer's first duty is to try to dissuade that person from giving the false testimony. The attorney should point out that exaggerations and small lies are easily exposed on cross-examination and easily detected by the jury. False favorable testimony therefore will end up hurting rather than helping. In addition, perjury is a crime that can be separately prosecuted, or considered by the judge as an aggravating circumstance at time of sentencing.

If the attorney cannot get a client to agree not to tell small lies, the attorney's second duty is to seek to withdraw from representation. Withdrawal would seem to be required under Model Rule 1.16(a)(1), because continued representation "will result in violation of the rules of professional conduct or other law," although it is not so universally recognized as dissuasion. Some commentators have criticized the withdrawal approach as serving no functional purpose because the new attorney will face the same issue. In criminal cases, withdrawal might not work because most defendants are represented by public defenders or assigned counsel who will probably not be permitted to withdraw. Withdrawal also may implicate other ethical principles, for example, if the case is so close to trial that a lawyer cannot ethically withdraw without jeopardizing the client's case. Withdrawal would also seem an inappropriate response if it is a witness, rather than the client, who plans to exaggerate.

If withdrawal is refused or inappropriate, the attorney should attempt to steer the direct examination around the false testimony. This may not solve the problem, however. Despite the attorney's best efforts, the client may give the false testimony anyway -- slipping it in on direct, or volunteering it during cross-examination. In these situations, the attorney is not relieved of ethical obligation just because they attorney has not intentionally used false evidence. The false evidence is there in front of the jury, and the lawyer must do something about it.

2. DISCOVERING FALSE EVIDENCE AFTER THE FACT

When I was an assistant district attorney in New York, I prosecuted a case in which the victim told police he had been robbed of two hundred dollars. Shortly before trial, he discovered the existence of the Victim's Compensation Fund. When I asked him at trial how much money had been taken from him, he smiled and said, "Two thousand dollars." Despite the good faith of an attorney, false testimony happens.

When an attorney discovers that false evidence has been presented to the court, the attorney is required to take remedial action even though it is not the attorney's fault. Model Rule 3.3 (a)(4) states: "If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures."

Despite this clear statement in the Model Rules, some commentators have argued that a lawyer is not obligated to take remedial action if the false evidence came from the client. Several justifications are offered; none is persuasive. Horgan suggests that taking remedial action would violate the attorney-client privilege and have a chilling effect on the attorney-client relationship, so an attorney should do nothing. The problem is that presenting false evidence is perjury, and the attorney-client privilege does not apply to crimes and frauds. Liskov argues that even if there is no privilege, taking remedial action would violate the requirement in Model Rule 1.6 that "a lawyer shall not reveal information relating to representation of a client unless the client consents." However, the commentary says that the rule does not apply when the client engages in conduct such as perjury that is criminal or fraudulent. Freedman suggests that acting against a client's wishes violates the right to counsel. The Supreme Court, however, has ruled to the contrary that a defendants "have no "right" to insist on counsel's assistance or silence. [Nix v. Whiteside, 475 U.S. at 172.] The arguments are belied by the clear requirement that remedial action is mandatory.

Model Rule 3.3 does not say what form that remedial action must take, and there is some debate about it. The preferred remedies for false evidence discovered before trial -- dissuasion and withdrawal -- are technically available for after-the-fact discoveries, but may not be realistic. The lawyer could ask for a recess, woodshed the client, and seek to persuade him or her to withdraw the false evidence. The only problem is that judges are not generally inclined to permit attorneys to interrupt their direct examinations in order to hold a quick coaching session with their clients on what to say next, although this would appear to be a "critical stage" of the proceedings at which the client has a right to counsel. An attorney could also ask to withdraw in the middle of a trial, but it is inconceivable that a judge would permit it. It also would seem to violate Model Rule 1.16(b)'s prohibition against withdrawal under conditions that would have a "material adverse effect" on the client.

The presumptive remedy would seem to be disclosure. Model Rule 3.3(a)(2) requires that a lawyer must "disclose a material fact to a tribunal when disclosure is necessary to avoid assisting a criminal or fraudulent act by the client." Perjury and presenting false evidence are criminal and fraudulent acts. Dissuasion and withdrawal are unlikely to be adequate, so the disclosure becomes "necessary." The commentary explains: "[T]he rule generally recognized is that, if necessary to rectify the situation, an advocate must disclose the existence of the client's deception to the court or to the other party. Such a disclosure can result in grave consequences to the client, including not only a sense of betrayal but also loss of the case and perhaps a prosecution for perjury. But the alternative is that the lawyer cooperate in deceiving the court, thereby subverting the truth-finding process which the adversary system is designed to implement."

Although the Commentary cautions that it "has been intensely debated" whether the requirement of remedial action applies in criminal cases, it does not take the position that the requirement is in fact ethically debatable. To the contrary, the commentary rejects the suggestion "that the advocate be entirely excused from the duty to reveal he perjury if the perjury is that of the [criminal] client" because it would makes the attorney a knowing instrument of perjury. If dissuasion has not worked, "the advocate should make disclosure to the court." The disclosure requirement is not optional; it is mandatory and applies in criminal cases as well as civil.

B. INADMISSIBLE EVIDENCE

One part of the good-faith basis principle is that an attorney must have a legal basis for offering evidence. The attorney must be able to point to a rule of evidence that plausibly supports the item's admissibility, and also have a subjective belief that the evidence properly be admitted under that rule. To offer inadmissible evidence is therefore unethical.

The ethical prohibition against trying to slip in inadmissible evidence seems fairly clear under the Model Rules, though it is not stated explicitly. Model Rule 3.4 (c) states that a lawyer shall not "knowingly disobey an obligation under the rules of a tribunal," and the rules of a tribunal include its evidence rules. Offering evidence that is inadmissible would seem to be knowingly disobeying court rules, as would asking an improper question and then withdrawing it if there is an objection. Rule 3.4(e) states that a lawyer shall not "in trial, allude to any matter that the lawyer does not reasonably believe is relevant or that will be supported by admissible evidence." This means more than just that a lawyer may not mention inadmissible evidence in opening statement. An attempt to offer it or get it before the jury would seem also to fall within the idea of an allusion to inadmissible evidence.

A lawyer should not attempt to get before the jury evidence which is improper. In all cases in which a lawyer has any doubt about the propriety of any disclosures to the jury, a request should be made for leave to approach the bench and obtain a ruling out of the jury's hearing, either by propounding the question and obtaining a ruling or by making an offer of proof.

An argument can be made that it is not the attorney's duty in the adversary system to anticipate the opponent's objections and the judge's rulings. The argument runs like this: Judges are given broad discretion to rule on the admissibility of evidence, so they might allow evidence the attorney thinks is inadmissible. Evidence not objected to is entitled to consideration by the jury, and an attorney does not know if the opponent will object. Therefore, an attorney never "knows" for sure whether evidence will be ruled admissible or inadmissible. This view may be compatible with the approach that the attorney must do everything possible for a client except present false evidence, but it cannot be squared with the good-faith principle. The attorney is offering evidence without a good-faith basis regardless of whether the opponent is competent enough to object or the judge will rule correctly.

The one aspect of the inadmissible-evidence problem that has received some attention in the ethics literature is the "side show." A side show is a non-evidentiary visual display staged for the jurors' benefit that is intended to have an influence on the jurors without ever find its way into evidence. The examples of this problem are drawn mostly from the past, so it is not clear whether this is a genuine problem today. Fortune and Underwood collected the following examples:

a. In a personal injury case in which plaintiff lost a leg, plaintiff's lawyer left an L-shaped package wrapped in butcher paper on counsel table throughout trial.

b. In a case brought by a widower for the wrongful death of his wife, the defendant's lawyer arranged for an attractive young woman to pretend to be the plaintiff's new girlfriend, sit near him during trial, and occasionally lean over and ask him innocuous questions, and touch him gently.

c. Defense counsel arranged for a look-alike to don the defendant's clothes and sit in the defendant's place, while the real defendant sat in the back of the courtroom. This caused several eyewitnesses to misidentify the accused.

c. In a criminal case in front of a predominantly African-American jury, the defense attorney arranged to have boxing champion Joe Louis walk into the courtroom in full view of the jury and shake his client's hand.

Such displays are not just clever courtroom advocacy, nor are they excusable because they do not rise to the level of presenting false evidence. They are unethical violations of the good-faith principle because the attorney has no legal basis for staging a side show. It is improper under rules of procedure and evidence.

I am concerned not only with evidence that violates the substantive rules of evidence because it is irrelevant, unauthenticated, hearsay, and so forth, but also violations of the procedural rules for introducing evidence. Procedural rules govern the proper form of the questions and answers that make up the examinations. The best known is the rule against asking leading questions on direct examination, but other rules preclude repetitive interrogation and questions that are argumentative, assume facts not in evidence, or misstate the evidence.

Despite these procedural rules, attorneys frequently ask improper questions or make improper rhetorical comments, especially during cross-examination.

[See examples on pp. 292-94 of textbook}

The intentional asking of improper questions for rhetorical purposes seems also to contravene the good-faith basis principle. The attorney lacks a reasonable belief that the question as asked is proper, and is therefore violating an established rule of the tribunal. Overly aggressive cross-examination that intimidates, browbeats or harasses a witness is also unethical.

Closely related to the rhetorical question is the rhetorical objection, also known as a "speaking objection." Under the customary rules of evidence, attorneys may state the legal basis for an objection within the hearing of the jury, but must make any extended argument outside the jury's hearing. This rule is routinely tested by attorneys who make "speaking objections" containing short arguments or summaries of evidence aimed at the jury. In most instances, speaking objections are clear, intentional violations of customary objection procedure, and therefore unethical. For example:

Q. What did you see next?
A. I saw a blue car drive by that looked like the defendant's car.
Defense: Objection, irrelevant and prejudicial. We've already established that the defendant was home with his mother, so it couldn't have been his car the witness saw.

Not all speaking objections are clearly unethical, however. For example, an attorney might object to the opinion of a medical expert by saying:

"This opinion is unreliable because it is based solely on the self-serving complaints of the plaintiff, made after his lawyer told him he would need an expert to testify for him."

Does this objection violate the good-faith principle because it is deliberately argumentative, or is it merely a restatement of Fed. R. Evid. 703's requirement that the facts or data used by an expert must be shown to be reasonably reliable? Keeton suggests the following solution:

Using a frivolous objection as a vehicle for expressing some argument to the jury is a practice condemned both by rules of procedure and by professional standards. On the other hand, expressing serious objections in a manner calculated to appeal to the jury as well as the court is generally regarded as a proper practice, and clearly it is proper to give attention to phrasing objections in such a way as to avoid causing an affirmatively adverse reaction by jurors. [However, if the argumentative part of the objection is overemphasized,] your statement is subject to the same criticism as a frivolous objection used for making an argument. The distinction is primarily one of degree, and great differences of opinion exist regarding such practices.

C. DUBIOUS EVIDENCE

The problem of misleading, unreliable and incomplete evidence is hard -- it is neither false nor inadmissible. What happens if an attorney by selective use of evidence, trickery, and half-truths, uses true evidence to create a false impression? This issue has been discussed at length in analysis of Monroe Freedman's question, "Is it proper to discredit a witness whom you know to be telling the truth?."

"our client has been ... accused of a robbery committed at 16th and P Streets at 11:00 p.m. He tells you [he was in the vicinity] at 10:55 that evening, but that he was walking east, away from the scene of the crime, and that, by 11:00 p.m., he was six blocks away. At the trial, [the prosecution calls] an elderly woman who is somewhat nervous and who wears glasses. She testifies truthfully and accurately that she saw your client at 15th and P Streets at 10:55 p.m."

Can you attempt to destroy the witness's credibility through cross-examination designed to show that she is easily confused and has poor eyesight, to mislead the jury and create the false impression that she is mistaken in her identification?

The problem is not confined to cross-examination, of course. Misleading evidence that creates a false impressions may be also be offered on direct examination. For example, extending Freedman's hypothetical, suppose the day of the crime was June 1, but the elderly witness mistakenly testifies the crime took place on June 2. Your client has admitted to you that he committed the crime on June 1, but has an airtight alibi for June 2. May an attorney in addition to vigorously cross-examine the witness about her failing eyesight, present truthful testimony of the client's alibi on June 2? None of the evidence is false, but it misleads the jury and is almost certainly going to lead to an unjustified acquittal of the armed robber.

Freedman thinks there is nothing unethical about presenting and relying on truthful but misleading evidence if it is genuinely beneficial to the client and increases his chances of acquittal.

"[I]f you should refuse to cross-examine her because she is telling the truth, your client may well feel betrayed, since you knew of the witness's veracity only because your client confided in you, under your assurance that his truthfulness would not prejudice him. [T]he same policy that supports the obligation of confidentiality precludes the attorney from prejudicing his client's interest in any other way because of knowledge gained in his professional capacity. [If] a lawyer fails to cross-examine only because his client ... has been candid with him, [the lawyer is using those confidences against his client.] The client's confidences must "upon all occasions be inviolable," to avoid the "greater mischiefs" that would probably result if a client could not feel free "to repose [confidence] in the attorney to whom he resorts for legal advice and assistance" Destroy that confidence, and "a man would not venture to consult any skillful person, or would only dare to tell his counsellor half his case."

Therefore, Freedman concludes, the attorney is obligated to attack the reliability or credibility of the victim, and by extension, offer the alibi testimony.

Yet, doesn't intentionally creating a false impression violate the good-faith basis principle? If the client has correctly identified your client, you do not have a good faith basis for insinuating that she is wrong because of poor eyesight, and it is hard to imagine that poor eyesight is relevant to any other purpose. Poor eyesight is not a material issue in its own right. Proving that she has poor eyesight or other physical defect "just for the heck of it" violates both the part of the good faith basis principle that requires a believe that evidence is relevant, and the prohibition against using "means that have no substantial purpose other than to embarrass" a witness.

Francis Wellman's classic The Art of Cross Examination sets a higher ethical standard. The purpose of cross-examination is to "catch truth," not to make the false look true and the true, false: "The purpose of cross-examination should be to catch truth, ever an elusive fugitive. If the testimony of a witness is wholly false, cross-examination is the first step in an effort to destroy that which is false.... If the testimony of a witness is false only in the sense that it exaggerates, distorts, garbles, or creates a wrong sense of proportion, then the function of cross-examination is to whittle down the story to its proper size and its proper relation to other facts....[But if] the cross-examiner believes the story told to be true and not exaggerated ... then what is indicated is not a "vigorous" cross-examination but a negotiation for adjustment during the luncheon hour.... No client is entitled to have his lawyer score a triumph by superior wits over a witness who the lawyer believes is telling the truth."

The same is true for presenting the misleading alibi evidence. The attorney lacks a good faith basis for believing that evidence of his client's alibi on June 2 is relevant to a crime that happened on the first. In the well known words of Lon Fuller, a lawyer "plays his role badly, and trespasses against the obligations of professional responsibility, when his desire to win leads him to muddy the headwaters of decision, when, instead of lending a needed perspective to the controversy, he distorts and obscures its true nature." Statements and evidence by an attorney designed to make the jury belief something which is not true "is a species of false statement of fact to a tribunal, which are condemned by Model Rule 3.3(a)(1)." Indeed, when the attorney first hears the witness mistakenly give the day of the crime as June 2, the attorney has discovered that false evidence has been presented to the jury, and is required to take appropriate remedial action -- disclose the falsity. The attorney may not ethically take advantage of unexpected favorable false evidence, even if the attorney had nothing to do with its creation.

VII. CONCLUSION.

The ethics of evidence involve more than a duty to be a zealous advocate and a rule against using false evidence. If that were all there were to it, trial attorneys would be ethically obligated to present unreliable and misleading evidence to a jury in an effort to deceive them, and to try to smuggle inadmissible evidence into the trial by ignoring the rules of evidence. Although some commentators have argued under slightly different terminology for exactly this result, it is clearly unacceptable. Ethics are not simply rules to be interpreted in the light most favorable to our clients, but moral principles that are supposed to guide our behavior as members of an honorable profession.

The ethic that proves the most helpful in analyzing how attorney gather, prepare and present evidence is the good-faith principle. Lawyers have an obligation to present only evidence which they believe to be the truthful, unaltered, natural recollection of witnesses, and which is admissible under the rules of evidence. They should not fabricate evidence or use false evidence fabricated by a client. They should not manipulate evidence in a way that misleads the jury. They should not create unreliable evidence through suggestive preparation techniques or outright bribery. They have an obligation to make sure that all material evidence is before the jury. Underwood is wrong when he says there is no rule against trickery. The good-faith principle is expressed in a dozen ways throughout the Model Rules, and it should play a more prominent role in the evidentiary decisions we make.

Actuary "Ezekial 25:17 - The path of the righteous man is beset on all sides by the inequites of the selfish and the tyranny of evil men. Blessed is he that shepherds the weak from the valley of darkness for he is truly his brother's keeper, and the finder of lost children. And I will strike down upon thee with great vengeance and furious anger those who attempt to poison and destroy my brothers, and you will know my name is the Lord when I lay my vengeance upon thee."

910 Knowingly and Willfully

The prohibition of 18 U.S.C. § 1001 requires that the false statement, concealment or cover up be "knowingly and willfully" done, which means that "The statement must have been made with an intent to deceive, a design to induce belief in the falsity or to mislead, but § 1001 does not require an intent to defraud -- that is, the intent to deprive someone of something by means of deceit." United States v. Lichenstein, 610 F.2d 1272, 1276-77 (5th Cir.), cert. denied, 447 U.S. 907 (1980). The government may prove that a false statement was made "knowingly and willfully" by offering evidence that defendants acted deliberately and with knowledge that the representation was false. See United States v. Hopkins, 916 F.2d 207, 214 (5th Cir. 1990). The jury may conclude from a plan of elaborate lies and half-truths that defendants deliberately conveyed information they knew to be false to the government. Id. at 214-15.

As used in the statute, the term "knowingly" requires only that the defendant acted with knowledge of the falsity. See United States v. Lange, 528 F.2d 1280, 1287-89 (5th Cir. 1976). As in other situations, to commit an act "knowingly" is to do so with knowledge or awareness of the facts or situation, and not because of mistake, accident or some other innocent reason. See Fifth Circuit Pattern Jury Instructions, § 1.35 (1990). Knowledge of the criminal statute governing the conduct is not required.

The false statement need not be made with an intent to defraud if there is an intent to mislead or to induce belief in its falsity. Reckless disregard of whether a statement is true, or a conscious effort to avoid learning the truth, can be construed as acting "knowingly." United States v. Evans, 559 F.2d 244, 246 (5th Cir. 1977), cert. denied, 434 U.S. 1015 (1978).

A defendant is not relieved of the consequences of a material misrepresentation by lack of knowledge when the means of ascertaining truthfulness are available. In appropriate circumstances, the government may establish the defendant's knowledge of falsity by proving that the defendant either knew the statement was false or acted with a conscious purpose to avoid learning the truth. See United States v. West, 666 F.2d 16, 19 (2d Cir. 1981); Lange, 528 F.2d at 1288; United States v. Clearfield, 358 F. Supp. 564, 574 (E.D. Pa. 1973). Proof that the defendant acted with reckless disregard or reckless indifference may therefore satisfy the knowledge requirement, when the defendant makes a false material statement and consciously avoids learning the facts or intends to deceive the government. See United States v. Schaffer, 600 F.2d 1120, 1122 (5th Cir. 1979).

The term "willfully" means no more than that the forbidden act was done deliberately and with knowledge, and does not require proof of evil intent. McClanahan v. United States, 230 F.2d 919, 924 (5th Cir. 1955), cert. denied, 352 U.S. 824 (1956); McBride v. United States, 225 F.2d 249, 255 (5th Cir. 1955), cert. denied, 350 U.S. 934 (1956). An act is done "willfully" if done voluntarily and intentionally and with the specific intent to do something the law forbids. There is no requirement that the government show evil intent on the part of a defendant in order to prove that the act was done "willfully." See generally United States v. Gregg, 612 F.2d 43, 50-51 (2d Cir. 1979); American Surety Company v. Sullivan, 7 F.2d 605, 606 (2d Cir. 1925)(Hand, J.); United States v. Peltz, 433 F.2d 48, 54-55 (2d Cir. 1970),cert. denied, 401 U.S. 955 (1971) (involving 15 U.S.C. § 32(a). See also 1 E. Devitt, C. Blackmar, M. Wolff & K. O'Malley, Federal Jury Practice and Instructions, § 17.05 (1992).

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