HOW TO DEAL WITH AND OVERCOME PRIOR INCONSISTENT STATEMENTS
Ethical Issues On Dealing With Changes In Client Or Witness Testimony
Presented by Marvin Gittler
of
ASHER, GITTLER, & D'ALBA, LTD.
US District Court Rules for the ND of IL.
From the IL. Court Rules And Procedure Volume II - Federal 2010
A) Telling The Truth, Scope of Representation LR 83.51.2
"A lawyer shall not counsel a client to engage, or assist a client, in conduct that the lawyer knows
is criminal or fraudulent, but a lawyer may discuss the legal consequences of any proposed
course of conduct with a client and may counselor assist, client to make a good-faith effort to
determine the validity, scope, meaning or application of the law."
The rules of professional conduct make it essential to advise for truthfulness
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However, there is nothing about being truthful that requires a client to reach back in time in order
to offer an answer that is a pure hypothesis or mere speculation. This is counter intuitive for
most clients and witnesses. When asked a question under oath, whether it be in court or in
affidavit or by deposition, the inclination is to come up with an answer to be forthcoming.
Preparing a client or witness to give a statement should always include the right to truthfully
reply,
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"I don't recall" or
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"I cannot remember" or
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"I never was involved in that, responsible for that, "or
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"I don't have any personal knowledge of that" or
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"I just don't know."
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As an Advisor, Advisor, LR 83.52.1, Committee Comments
Clients are entitled to advice that expresses the attorney's honest review of the case, which
includes advice on all known unpleasant facts. Using legalize or giving purely technical advice
in counseling a client may have little value and be insufficient. "A lawyer should not be deterred
from giving candid advice by the prospect that the advice will be unpalatable to the client."
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Communication, LR 83.51.4.
A lawyer has a duty to the client:
(l) to keep them reasonably informed of the status of the matter
(2) to answer reasonable information requests made by the client
(3) "to explain a matter to the extent reasonably necessary to permit the client to
make informed decisions regarding the representation."
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Ultimately it is the clients decision as to whether to testify
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B) Worst Case Scenario-The Client Commits Perjury In Regard To A Material Fact
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Confidentiality of Information, LR 83.51.6(c)(l),(2)
A lawyer may use or reveal confidences:
(I) when permitted under the rules or
(2) when required by law or court order
(3) when the intention ofthe client is to conunit a crime [perjury]
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Withdrawing Representation, LR 83.51.16
In order to withdraw from representing a client, the lawyer must first ask permission of the
tribunal. In the worst case scenario, the lawyer should ask for permission to approach
-Ask for time to meet with the client to take reasonable remedial actions
Such as: advise client oflawyer's duty of candor to the tribunal, seek
client's cooperation with respect to correction
-it is quite likely that a request to meet with the client will be denied if this
is in the middle of court testimony
-the next request is the permission to withdraw
[at which point it is obvious to the court, if it wasn't already that
your client has lied]
-if, as is likely to occur, the request to withdraw is denied
-the lawyer has no choice but to stand back and not further facilitate the
perjured testimony, nor to represent it as truthful in closing
arguments nor at any time during the remaining directs and cross
examinations
-Furthermore, a lie regarding a material fact of the case must be revealed to the
tribunal so that it may decide whether to order a mistrial or do nothing.
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"Knowingly"
Rule 3.3 ofIL 2010 Modal Rules of Professional Conduct puts it like this:
"A lawyer shall not knowingly: (I) make a false statement of fact or law to a tribunal or fail to
correct a false statement of material fact or law previously made to the tribunal by the lawver;
...(3) offer evidence that the lawyer knows to be false. If a lawyer, the lawyer's client, or a
witness called by the lawyer, has offered material evidence and the lawyer comes to know of its
falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to
the tribunal."
The rule goes on to require a lawyer to refuse to offer any other evidence that the lawyer
reasonably believes is false (regardless of the client's wishes), and these same rules apply to
representation in an adjudicative proceeding.
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The committee comments for rule 3.3 make clear that the lawyer's first obligation is as an officer
of the court, so that the trier offact is not misled by false evidence. Moreover, where the lawyer
knows that the client intends to give false testimony, he should attempt to persuade the client that
he should not do so.
See also Committee comments LR 83.51.16 Mandatory Withdrawal is not necessarily at issue
where a client may suggest an illegal course of conduct "in the hope that a lawyer will not be
constrained by a professional obligation."
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Be Aware That Standards of Knowledge Vary
However, the standard goes back to "knowingly" and whether a lawyer has "actual knowledge"
of a falsity or "knowledge that can be inferred under the circumstances." If the lawyer does
not know it is a lie then there is no obligation to withdraw. Short of a direct admission by the
client, the law is quite murky as to the narrowness of what the term "knowingly" should
encompass.
The controlling Supreme Court Case is:
Nix v. Whiteside, where the court held that an attorney's refusal to admit testimony he believed
to be false was NOT a violation of the defendant's Sixth Amendment rights. 475 U.S 157, 165
(1986). The decision suggests a high standard for determining when a lawyer knows testimony
to be false. Id. 174. However, the court notes that a lawyer is precluded from any steps to assist
the client in such an endeavor. Id. at 166.
State Courts, the ABA Modal Rilles, and ABA Advisory Opinion 353 (post Nix) have affirmed
the lawyer's responsibility to inform the tribunal ofpeIjury, however, not every change in a
client's recollection will provide the lawyer with knowledge of a client's intent to lie.
States v. Midgett, 342 F. 3d 321, (2003)(Holding the mere belief that a defendant will testifY
falsely is not enough to adopt remedial action)
See Wisconsin v. McDowell, 669 NW 2d 204, 214 (Wis. Ct. App. 2003)(the court adopted a
strict standard that an affirmative admission of the client was required for before lawyer may
"know" the intent of the client to lie and the judge allowed defendant to give his testimony in the
narrative form)
See Whiteside v. Scurr, 744 F.2d 1323, 1331 (8 th Cir. I984)(overturned on at least one point of
law)(Holding a threat by a lawyer to inform the court of his client's perjured testimony
constitutes ineffective assistance of counsel is overturned by Nix)
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C. Dealing With Inconsistent Testimony More Generally
TOOLS TO REBUT INCONSISTENCY
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Proximate times of the statements (closer is generally more accurate)
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Flustered at time of event
(further away in time is more accurate because chance to evaluate what occurred)
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Anxiety or Stress at being at Trial
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Confusion
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Faulty Memory
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RELEVANCE-is the inconsistency even relevant and how so?
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STIPULATE to the fact early on so cannot be an issue
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Don't Call That Witness
WHAT IS A PRIOR INCONSISTENT STATEMENT?
Federal Rule 613. Prior Statements of Witnesses
(a) Examining witness concerning prior statement.
-In examining a witness concerning a prior statement made by the witness, whether
written or not, the statement need not be shown nor its contents disclosed to the witness at
that time, but on request the same shall be shown or disclosed to opposing counsel.
(b) Extrinsic evidence of prior inconsistent statement of witness
-is not admissible unless the witness is afforded an opportunity to explain or deny the
same and the opposite party is afforded an opportunity to interrogate the witness
thereon, or the interests ofiustice otherwise require.
***However, Rule 613 will not apply where the prior inconsistent statement is an
admission of a party-opponent as defined in rule 801(d)(2) [See below]
Rule 801. Definitions
The following definitions apply under this article:
Cd) Statements which are not hearsay.
A statement is not hearsay if-(1) Prior statement by a witness.-The declarant testifies at the trial or hearing and is
subject to cross-examination concerning the statement, and the statement is
(A) inconsistent with the declarant's testimony, and was given under oath
subject to the penalty of perjury at a trial, hearing, or other proceeding,
or in a deposition, or
(B) consistent with the declarant's testimony and is offered to rebut an express
or implied charge against the declarant of recent fabrication or improper
influence or motive, or (C) one of identification of a person made after
perceiving the person; or
***(2) Admission by a partv-opponent.-The statement is offered against a party and is
(A) the party's own statement, in either an individual or a representative capacity,
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OR
(B) a statement ofwhich the party has manifested an adoption or beliefin its
truth, or
(C) a statement by a person authorized by the party to make a statement
concerning the subject, or
(D) a statement by the party's agent or servant concerning a matter within the
scope of the agency or employment, made during the existence of the
relationship, or
(E) a statement by a coconspirator ofa party during the course and in furtherance
of the conspiracy. The contents of the statement shall be considered
but are not alone sufficient to establish the declarant's authority under
subdivision (C), the agency or employment relationship and scope thereof
under subdivision (D), or the existence of the conspiracy and the participation
therein of the declarant and the party against whom the statement is offered
under subdivision (E).
CONCLUSION
Thus, in translation, a Prior Inconsistent Statement---is ANY prior statement (including
conduct) of a witness that is inconsistent with another subsequent statement of the witness that
was made orally or in writing. It will be admissible over an objection if the witness can be cross
examined on the inconsistency
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OR" the interests ofiustice otherwise require."
OR 801 (d)(2) Hearsay rule it is admissible as an admission of a
party opponent if the witness is a party or agent of the party it will
be admissible
AND note that the Foundation Rules are relaxed for a 613(b) Prior Inconsistent Statement also!
See Excerpt from:
Amato v. United States of America
Petition for Writ of Certiorari 2009
...Virtually every other Circuit which has considered this question in one form or another is
consistent with the decisions in Harvey and Wilson and sets forth its own formulation of the
principle that Rule 613(b) was intended to relax thefoundational requirements and that Rule
613(b) actually favors the admission ofextrinsic evidence ofprior inconsistent statements
under circumstances even less compelling than those present in this case without any
requirement that the foundation include a highlighting ofthe opportunity to explain or deny
the statements or that it be dependent on specific advance notice to the witness or to the
government ofthe identity ofspecific witnesses the defendant intended to call in its case-inchiefto present such extrinsic evidence ofthe witness's prior inconsistent statements.
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Clearly, there is no requirement that a witness have the opportunity to rebut a prior inconsistent
statement immediately as a trial is in progress. See e.g. Wilmington Trust Company v. The
Manufacturer's Life Insurance Company, 749 F.2d 694,699 (II th Cir. 1985) (Rule 613(b) does
not specify any particular *37 time or sequence for giving the witness an opportunity to
explain or deny or examine the prior inconsistent statements at issue; allowing extrinsic
evidence testimony of the prior inconsistent statement before the witness was given an
opportunity to explain or deny the prior inconsistent statement), citing, United States v. Barrett,
539 F.2d 244, 254-56 (1st Cir. 1976); S. Saltzburg & K. Redden, Federal Rules of Evidence
Manual at 430, (3d ed. 1982); United States v. Bibbs, 564 F.2d 1165, 1169-70 (5th Cir. 1977);
No.3 J. Weinstein & M. Berger, Weinstein's Evidence § 613.(04) at 613-16 n. 6 (1981)
(extrinsic evidence witness could testifY about prior inconsistent statements even before declarant
was given an opportunity to explain or deny the conversation at issue)....
...See also United States v. Young. 86 F.3d 944, 949 (9th Cir. 1996) (reversing conviction and
finding that "the foundational prerequisites of Rule 613(b) require only that the witness be
permitted - at some point - to explain or deny the prior inconsistent statement. "; holding that
even absent the declarant's denial ofthe statement on cross-examination extrinsic witness's later
testimony about declarant's prior inconsistent statement would not have been barred. Declarant
simply would have been given an opportunity to explain or deny on rebuttal); United States v.
Rose, 403 F.3d 891, 903-904 (7th Cir. 2005) (failure to cross-examine declarant/witness on prior
inconsistent statements did not prohibit defense from eliciting extrinsic evidence testimony from
another witness about the prior inconsistent statement; procedure is for the government to bring
declarant back to the stand on rebuttal to give him an opportunity to explain or deny the prior
inconsistent statements; finding error harmless because not direct or compelling evidence),
citing 6th, 7th, 8th, 9th Circuits as being in accord with its Rule 613(b) understanding with no
requirement of cross-examination of the declarant/witness prior to the admission of extrinsic
defense testimony concerning the prior inconsistent statements....
ASHER, GITTLER, & D' ALBA, LTD.
200 West Jackson Boulevard, Suite 1900
Marvin Gittler
Sara Schumann
Chicago, IL 60606 - (312) 263-1500
All rights reserved.
Dated: September 30, 2010
This release informs you of items of interest
in the field of labor relations. It is
not intended to be used as legal
advice or opinion.
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