The Lawyer as Advocate

Disclosure of Adverse Legal Authority (Army Rule 3.3).

  1. courtmartialdefenselawyers10.57.24 2A lawyer shall not knowingly fail to disclose to the tribunal, legal authority in the controlling jurisdiction, known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.
  2. A lawyer should disclose authority from a collateral jurisdiction if the judge “would reasonably consider it important to resolving the issue being litigated.” (Comment to Army Rule 3.3). ABA Formal Opinion 280 (1949); ABA Informal Opinion 84-1505 (March 1984).
  3. Disruption of the Tribunal (Army Rule 3.5(c)).
  4. Expressing Personal Opinion at Trial (Army Rule 3.4(e)).

Trial Publicity (Army Rule 3.6).

  1. A lawyer shall not make public statements that will have a substantial likelihood of prejudicing a proceeding. See Gentile v. Nevada State Bar, 111 S. Ct. 2720 (1991).
  2. Other publicity considerations.
    1. TJAG Memorandum on Relations with News Media – OSJA attorneys must get approval from their SJA before any information is released to the media.
    2. USATDS SOP – Defense counsel must consult with their Regional Defense Counsel and the Office of the Chief, TDS, prior to release. The ultimate decision to release information rests with the defense counsel, however.
  3. Information that is releasable is listed at Rule 3.6(c).

Ex Parte Discussions with Military Judge and Panel Members (Army Rule 3.5).

  1. A lawyer shall not communicate ex parte with a judge or juror except as permitted by law. See United States v. Copening, 34 M.J. 28 (C.M.A. 1992); United States v. Hamilton, 41 M.J. 22 (C.M.A. 1994).
  2. It is unprofessional conduct for a prosecutor to engage in unauthorized ex parte discussions with or submission of material to a judge relating to a particular case that is or may come before the judge (Standards for Criminal Justice 3-2.8(c)).

Prosecutorial Disclosure (Army Rule 3.8(d)). Vol. I

A lawyer prosecuting a criminal case shall make timely disclosure to the defense of all evidence or information known to the lawyer that tends to negate the guilt of the accused or mitigates the offense, and, in connection with sentencing, disclose to the defense all unprivileged mitigation information known to the lawyer.

  1. This is commonly referred to as “Brady” material and failure to turn it over is a “Brady Violation” after the case Brady v. Maryland, 373 U.S. 83 (1963).

Handling Evidence or Contraband (Army Rule 3.4(a)).

1. If the client informs the lawyer of the existence of the evidence but does not relinquish possession.

  1. Lawyer should inform the client of the lawyer’s legal and ethical obligations regarding the evidence.
  2. Lawyer should refrain from either taking possession or advising the client what to do regarding the evidence.

If the lawyer receives the evidence or contraband.
a. A lawyer shall not —

  1. Unlawfully obstruct another party’s access to evidence
  2. Unlawfully alter, destroy or conceal a document or other material having potential evidentiary value or
  3. Assist another person to do so.

courtmartialdefenselawyers10.53.47 2A lawyer who receives an item of physical evidence implicating the client in criminal conduct shall disclose the location of or shall deliver that item to proper authorities when required by law or court order (Comment, Army Rule 3.4(a)). United States v. Rhea, 33 M.J. 413 (C.M.A. 1991) (defense counsel have a duty to surrender evidence which implicates their clients to prosecution). But see also United States v. Province, 45 M.J. 359 (1997) (no duty where Government has equal access to evidence).

  1. If a lawyer receives contraband, the lawyer has no legal right to possess it and must always surrender it to lawful authorities (Comment, Army Rule 3.4).
  2. If a lawyer receives stolen property, the lawyer must surrender it to the owner or lawful authority to avoid violating the law (Comment, Army Rule 3.4).
  3. Concealment, destruction, alteration, etc. could be a violation of UCMJ art. 134, Obstruction of Justice.

If the lawyer discloses the location of or delivers an item of physical evidence to proper authorities, it should be done in a way designed to protect the client’s interests, including –

  1. Client’s identity.
  2. Client’s words concerning the item.
  3. Client’s privilege against self-incrimination.

Other confidential information.4. Advice on handling evidence or contraband:

  1. Do not accept the item!!
  2. Advise the client of the consequences of continued possession and voluntary turn-in. Do not advise the client of what to do regarding the evidence. Also advise the client of the lawyer’s obligations regarding the evidence.
  3. If possession cannot be avoided, turn it over to the proper authorities.
    1. (1)  Don’t dispose of it or conceal it.
    2. (2)  Don’t destroy or alter the evidentiary quality.
    3. (3)  Upon turn-in, refuse to disclose client identity and circumstances of your possession to the extent permitted by applicable case law.

Client Perjury (Army Rule 3.3; ABA Formal Opinion 87-353 (1987)).

  1. A lawyer who knows that his client intends to testify falsely should (must under ABA formal opinion):
    1. Advise the client not to do so and explain the consequences of doing so, including the lawyer’s duty to disclose.
    2. Attempt to withdraw (if the lawyer’s efforts to dissuade the client from testifying falsely are unsuccessful).
    3. Limit examination to truthful areas.
    4. If not possible, disclose to the tribunal the client’s intention to commit perjury.
    5. A lawyer who knows that the client has already testified falsely must:
      1. (1)  Persuade the client to rectify it.
      2. (2)  Disclose the perjury if unsuccessful.
    6. A lawyer “knows” that a client intends to testify falsely if the accused has admitted facts to the lawyer which establish guilt and the lawyer’s independent investigation establishes that the admissions are true, but the accused insists on testifying (Comment, Army Rule 3.3).
  2. United States v. Baker, 65 MJ 691 (C.A.A.F. 2007). Provides additional nonbinding guidance on how defense counsel and military trial judges should handle issues of client perjury at trial. Counsel should:
    1. Conduct an investigation into all evidence prior to taking any action with regard to the alleged perjury.
    2. Ethical obligations only exist if you have a “firm factual basis” to conclude that client has committed perjury.
    3. Review potential consequences with client.
    4. Request an on the record ex-parte discussion with the Military Judge to notify the military judge that the client will testify in narrative form without benefit of counsel without expressing why.Vol. I B – 14
    5. Refrain from using the perjured testimony in any way (i.e. in argument, cross or direct of other witnesses.)

Witness Perjury (Army Rule 3.3).

  1. Avoiding the use of perjured testimony.
    1. When evidence that a lawyer knows to be false is provided by a person who is not the client, the lawyer must refuse to offer it regardless of the client’s wishes (Army Rule 3.3).
    2. “A lawyer may refuse to offer evidence that the lawyer reasonably believes is false.” (Army Rule 3.3(c)).
  2. If a lawyer has offered material evidence and comes to know of its falsity, the lawyer shall take reasonable remedial measures (Army Rule 3.3(a)(4)). This obligation ends at the conclusion of the proceeding. (Comment—Duration of Obligation).

Prosecutorial Conduct.

  1. courtmartialdefenselawyers10.53.17 2The duty of the prosecutor is to seek justice, not merely to convict. ABA Standard 3-1.2c; Air Force Standard 3-1.1c.
    1. A lawyer prosecuting a criminal case shall recommend to the convening authority that any charge or specification not warranted by the evidence be withdrawn. Military Rule 3.8(a).
    2. A prosecutor should not intentionally avoid pursuit of evidence because he believes it will damage the prosecution’s case or aid the accused. ABA Standard 3-3.11c; Air Force Standard 3-3.11.
    3. Trial counsel should report to the convening authority any substantial irregularity in the convening orders, charges, or allied papers . . . bring to the attention of the convening authority any case in which trial counsel finds trial inadvisable for lack of evidence or other reasons (R.C.M. 502(d)(6) (Discussion)).
  2. Cross-examination of a truthful witness. ABA Standard 3-5.7; Air Force Standard 3-5.7.
    1. Fair and objective cross-examination is permitted.
    2. Unnecessary intimidation and humiliation of witness on cross- examination is prohibited.
    3. If the prosecutor believes that the witness is truthful.
      1. (1)  Cross-examination is not precluded.
      2. (2)  But manner and tenor ought to be restricted. (Air Force standard says the method and scope of cross-examination may be affected.)
    4. If the prosecutor knows that the witness is truthful, cross-examination may not be used to discredit or undermine the truth.
  3. It is unprofessional conduct for a prosecutor knowingly to make false statements or representations in the course of plea discussions. ABA Standard 3-4.1c; Air Force Standard 3-4.1c.Vol. I B – 15
  1. A prosecutor may argue to the jury all reasonable inferences from the evidence in the record, but it is unprofessional conduct for the prosecutor intentionally to misstate the evidence or mislead the jury as to the inferences it may draw. Rule 3.4(e); ABA Standard 3-5.8(a); Air Force Standard 3-5.8(a).
  2. It is unprofessional conduct for the prosecutor to express his or her personal belief or opinion as to the truth or falsity of any testimony or evidence or the guilt of the defendant. Rule 3.4(e); ABA Standard 3-5.8(b); Air Force Standard 3-5.8(b).
  3. Prosecutors should not:
    1. Make arguments calculated to inflame the passions or prejudices of the jury. ABA Standard 3-5.8c; Air Force Standard 3-5.8c.United States v. Diffoot, 54 M.J. 149 (2000). Comments made by the trial counsel during closing argument regarding accused’s ethnicity and urging a conviction based on guilt by association amounted to plain error and materially prejudiced appellant’s substantial rights.
    2. Make arguments that would divert the jury from its duty to decide the case on the evidence. ABA Standard 3-5.8(d); Air Force Standard 3- 5.8(d) (also prohibits arguments which inject issues broader than guilt or innocence of accused under controlling law, or makes predictions of the consequences of the court members’ findings).United States v. Baer, 53 M.J. 235 (C.A.A.F. 2000). The CAAF held that golden rule arguments asking the members to put themselves in the victim’s place are improper and impermissible in the military justice system. However, they did recognize the validity of an argument asking the members to imagine the victim’s fear, pain, terror and anguish. When improper argument is made, it must be looked at in context to determine whether it substantially impacted on the right of the accused to a fair and impartial trial. The CAAF held no such impact here and affirmed the case.
    3. Ask the defendant during cross-examination to comment on the truthfulness of other witnesses.United States v. Harrison, 585 F.3d 1155 (9th Cir. 2009), where the SAUSA asked the defendant to comment on the truthfulness of the MP’s he allegedly assaulted.
    4. Threaten Criminal ProsecutionUnder ABA Code DR 7-105, lawyers could not present, participate in presenting, or threaten to present criminal charges “solely to gain an advantage in a civil matter.” See Iowa State Bar v. Michelson, 345 N.W.2d 112 (Iowa 1984); TJAG Opinions, The Army Lawyer, March 1993 and May 1977. See also United States v. Edmond, 63 M.J. 343 (C.A.A.F. 2006) where a trial counsel threatened a civilian witness (former Soldier) with prosecution by the SAUSA if he testified and then had the SAUSA reiterate the threat of prosecution.There is no parallel provision in the Army Rules (or ABA Model Rules). Threatening or filing criminal charges may, however, violate more narrow provisions of Rules 3.1, 3.3, 3.4, 3.5, 3.8, 4.4, 8.4(b), or 8.4(e).

Prosecutors may refer to or argue facts outside the record only if the facts are matters of common public knowledge based on ordinary human experience. ABA Standard 3-5.9; Air Force Standard 3-5.9.

Vindictive Prosecution

To support a claim of vindictive prosecution, one must show that (1) “others similarly situated” were not charged; (2) “he has been singled out for prosecution”; and (3) “his ‘selection . . . for prosecution’ was ‘invidious or in bad faith, i.e., based on such impermissible considerations such as race, religion, or the desire to prevent his exercise of constitutional rights.’” Failure to show any of the three prongs of the test must result in the failure of a claim of vindictive prosecution.

Because the burden to establish a claim of vindictive prosecution falls on the moving party, challenging a case on grounds of vindictive prosecution can be difficult. See Unites States v. Martinez, 2009 WL 1508451 (A.F. Ct. Crim. App. 2009). Air Force Captain alleged that he had “identified problems with operating procedures, equipment and standard of care,” which he claimed irritated the SJA, convening authority, the Article 32 IO, the judge, TC, DC, “and a myriad of others.”

Lawyer as a Witness (Army Rule 3.7).

1. A lawyer shall not act as advocate at a trial in which the lawyer is likely to be a necessary witness except where:

  1. The testimony relates to an uncontested issue;
  2. The testimony relates to the nature and quality of legal services rendered in the case; or
  3. Disqualification of the lawyer would work a substantial hardship on the client.

Unless the lawyer for the accused is prepared to forego impeachment of a witness by the lawyer’s own testimony as to what the witness stated in an interview or to seek leave to withdraw from the case in order to present such impeaching testimony, the lawyer should avoid interviewing a prospective witness except in the presence of a third person. Standards for Criminal Justice 4-4.3(d).