Navigating the Fine Line of Criminal Advocacy Using

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Navigating the Fine Line of Criminal Advocacy, Using Truthful Evidence to Discredit Truthful Testimony. Introduction, The fine line of ethical criminal advocacy and perpetual struggle between the duties to. the client court and profession has received much attention Defence counsel is tasked with. advancing every argument she or he reasonably believes will help with the client s case without. misleading the court 1 relying on any evidence or defences known to be false or fraudulent 2 or. unduly harassing or intimidating witnesses 3 Counsel s obligation to tell the truth and be candid. with the court is subject only to the rules of confidentiality and privilege 4. But there has been very little discussion in Canada about whether it is improper or. unethical to use truthful evidence to challenge witness credibility when counsel knows that the. client is guilty 5 In answering this question this paper advocates that a contextual approach. should be taken It examines the two leading cases in Canadian jurisprudence Li and Lyttle. which appear to conflict on this point 6 professional codes of conduct Canadian legal. scholarship7 and the comparatively richer American discourse exploring the ethical dimensions. Rondel v Worsley 1969 1 AC 191 UKHL, R v Jenkins 2001 44 CR 5th 248 Ont SCJ Also Law Society of Upper Canada v Ross 2010 ONLSHP 7. LSUC Rules of Professional Conduct Rule 4 01 1 and Commentary RPC. For instructive Canadian and American commentary on when a lawyer knows the client is guilty see Michel. Proulx and David Layton Ethics and Canadian Criminal Law Toronto Irwin Law 2001 at 41 47 and Harry. Subin The Criminal Lawyer s Different Mission Reflections on the Right to Present a False Case 1987 1 Geo. J Legal Ethics 125 at 136 43, R v Lyttle 2004 1 SCR 193 and R v Li 1993 BCJ No 2312 CA leave refused 1994 SCCA No 209. Only four Canadian contributions appear to have considered the legal ethics of using truthful evidence to impeach. See Alice Woolley Understanding Lawyers Ethics in Canada Markham LexisNexis Canada Inc 2011 Steven. Skurka and James Stribopoulos Professional Responsibility in Criminal Practice in Criminal Law Reference. Materials Ontario Bar Admission Course Toronto Law Society of Upper Canada 2005 Chapter 1 at 10 11. of discrediting truthful testimony Part I discusses the two leading authorities in Canadian. jurisprudence In R v Li the British Columbia Court of Appeal held that truthful evidence in. support of a false proposition could be used to test the reliability of witnesses evidence even. where counsel knew the client was guilty The Supreme Court of Canada did not directly address. the issue in R v Lyttle However the Court s reasoning can be taken to infer that it is not. permissible Part II looks at the limited direction in the LSUC Rules of Professional Conduct. Part III identifies what has been said up to this point in Canadian and American legal. scholarship Finally in Part IV two case studies will be used to engage relevant factors that. should be taken into account in determining if confidence in the administration of justice would. likely be enhanced or reduced if the proposed line of questioning is permitted. Ultimately in some circumstances I contend that it is ethical and in the interests of. justice for counsel to use truthful evidence in defence of a guilty client Trial judges will. continue to control the process by monitoring the probative value of the questioning and. counsel s treatment of the witness 8 yet the functioning of the legal system also depends on. lawyers independently understanding and respecting those limits 9. Part I The Jurisprudence, In Li the accused was convicted at trial of robbery arising out of a jewelry store burglary.
On appeal to the British Columbia Court of Appeal the accused argued that his lawyer had not. David Tanovich Law s Ambition and the Reconstruction of Role Morality in Canada 2005 28 Dal LJ 267 and. David Layton The Criminal Defence Lawyer s Role 2004 27 Dal LJ 379. Lyttle supra footnote 6 at paras 44 45 and 50 52,Woolley supra footnote 7 at 208. properly represented him by failing to challenge the police testimony about the stolen jewelry. being found in the accused s possession and not calling the accused to testify 10. The Crown s evidence at trial consisted of two witness accounts and the police seizure of. a quantity of the stolen jewelry from the accused s room in his parents residence the next day. The two store clerks provided in dock identification However the identification in the photo. lineup was also done with something less than 100 percent certainty 11 and there were. discrepancies with the earlier identification particularly with regard to the accused s hairstyle. and manner of speaking 12 In response the defence called two independent witnesses that gave. truthful evidence about the hairstyle of the accused and his fluency in English to raise doubt. about the reliability of the identification evidence given by the store clerks 13. In the view of the court having received an admission of guilt from the accused the. defence was required to refrain from setting up any inconsistent defence 14 However it was. entitled and counsel under a duty to test the Crown s case in every proper way McEachern. CJBC writing for the court held that it was not improper for the defence to call two. independent witnesses who gave uncontroversial evidence about the hairstyle of the accused and. about his fluency in English to raise a doubt about the reliability of the identification evidence. given by the jewelry store clerks 15 The court went on to state that if for example the evidence. of the Crown was that an assailant was about 6 feet in height a counsel defending an accused. Li supra footnote 6 at paras 19 47 and 55 57, The frailties of eyewitness evidence are well reported E g R v Hanemaayer 2008 234 CCC 3d 3 Ont CA. Li supra footnote 6 at paras 4 5 and 57,Ibid at para 66. who has privately admitted guilt could properly call evidence to prove the real height of the. accused was less or more than that 16, Therefore the court concluded that counsel did not breach any legal or ethical rule by. challenging the discrepancies in the Crown s identification evidence and introducing truthful. evidence about the accused s actual height and fluency in English to possibly have the trier of. fact draw an exculpatory inference on identification The court noted that this line of questioning. was the only hope the accused had of having an active defence to avoid a conviction. necessarily following 17,R v Lyttle, Ten years later in 2003 the Supreme Court was asked to weigh in on the general debate.
about whether disputed and unproven facts can be used in cross examination to create the. impression that the witness is either being untruthful or mistaken if a good faith basis exists. The accused was charged with robbery assault causing bodily harm kidnapping and. possession of a dangerous weapon A Crown witness picked Lyttle out of a photo lineup as one. of four masked assailants that had attacked him The defence theory was that the assault and. robbery were related to the victim s unpaid drug debt and that he had identified Lyttle to avoid. implicating his associates or himself in a drug ring 18 At trial the Crown argued and the trial. judge agreed that the defence was prohibited from cross examining on its theory unless it could. provide an evidentiary foundation 19 The Ontario Court of Appeal upheld the trial judge s. decision using the curative proviso under s 686 1 b iii of the Criminal Code In a unanimous. Ibid at para 67,Ibid at para 68,Lyttle supra footenote 6 at para 20. Ibid at para 21, judgment reversing both of the lower courts the Supreme Court concluded that the trial judge s. unwarranted restriction of what was a legitimate line of questioning had a fatal impact on the. conduct of the defence and rendered the trial unfair 20 A new trial was ordered. Although the Supreme Court did not directly address the method of advocacy discussed. in this paper the general reasoning seems to imply that using truthful evidence to cast aspersions. on a witness or create a false impression about the accused guilt is improper 21 According to the. Court suggesting what counsel genuinely thinks possible on known facts or reasonable. assumptions is permissible but asserting or implying in a manner that is calculated to mislead. cannot constitute good faith and is prohibited 22 However the Court did not address how far the. defence can go in inviting a trier of fact to form inferences from truthful evidence that. nonetheless supports a false proposition 23,Part II The Rules. The Rules of Professional Conduct and other professional codes set minimum criteria for. how lawyers practice Defence counsel is tasked with rais ing fearlessly every issue argument. and question however distasteful or contrary to the lawyer s private opinion on credibility or. the merits that she or he believes will help the client obtain any advantage remedy and. defence authorized or not prohibited by law 24 However like the decision in Lyttle the Rules. Ibid at paras 3 6 11 and 71 75,Ibid at paras 44 45. Ibid at paras 47 48, Harry Subin Is This Lie Necessary Further Reflections on the Right to Present a False Defense 1987 1 Geo J.
Legal Ethics 689 at 691,RPC R4 01 and Commentary, do not directly speak to the practice of using truthful evidence to challenge a witness credibility. when guilt is known, On one hand it could be said that the Rules preclude this method Counsel is expressly. prohibited from knowingly attempting to deceive a court or tribunal 25 With truthful evidence. although the evidence offered may not technically be false its use still causes a witness or party. including the accused to be presented in a false or misleading way26 by virtue of the false. proposition it supports and inference the trier of fact is being asked to draw 27 Counsel is at the. very least suggesting the witness is mistaken about an essential element of the offence or. material matter and using evidence to raise doubt about the accused s guilt This could be. argued amounts to misstating evidence28 and does no more to promote the integrity of the. profession 29 or respect for the administration of justice 30 While counsel is permitted to test. the evidence of every Crown witness and argue that as a whole it is insufficient to convict 31 the. defence is barred from suggesting that some other person committed the offence or setting up an. affirmative case inconsistent with the admission 32. Ibid at R4 02 e,Ibid at R4 02 j,Ibid at R4 02 g,Ibid at R4 02 f. Ibid at R6 01 1 and 6 03 1,Ibid at R4 06 1, Ibid at R4 01 1 and Commentary Also Federation of Law Societies of Canada Federation Model Code of. Professional Conduct R4 01 1 and Commentary FLS Model Code and the New Brunswick Code of Professional. Conduct Chapter 8 R14 d NB Code of Professional Conduct. Ibid at R4 01 1 and Commentary Also CBA Code Chapter 9 Commentary 11 and British Columbia Code of. Professional Conduct Chapter 8 R1 e 1, On the other hand it could be asserted that the Rules permit using truthful evidence to.
test the credibility and reliability of a witness evidence for the limited purpose of arguing that. the Crown has failed to discharge its burden of proof Defence counsel is tasked with protecting. the client as far as possible from being convicted except by sufficient reliable evidence to. support a conviction for the offence charged 33 In performing this role counsel is authorized to. use any evidence defences or technicalities not known to be false or fraudulent 34. Demonstrating or suggesting that a witness is mistaken through truthful evidence is not. misleading in that sense The suggestion is supported by truthful evidence designed to ensure. that the accused is not convicted except by sufficient truthful evidence to support a conviction. Unless defence counsel goes further to set up an affirmative case or defence inconsistent with the. admission then counsel is not relying on evidence or a defence known to be false or fraudulent. Part III The Legal Scholarship, The question of whether it is ethically permissible to lead evidence or make submissions. in support of a false proposition has generally elicited three responses in legal scholarship. a the rules and adversary system require unbridled partisanship by the defence lawyer to offer. her or his client every possible advantage that is not perjurious or illegal The Freedman. Approach b presenting truthful evidence to test and raise doubt in the Crown s case is distinct. from conduct designed to mislead the trier of fact or setting up an affirmative defence The. Layton Proulx Approach and c the permissibility of the proposed course of action should be. assessed by looking at its legal merit utility and harm and impact on attaining a legal correct. Ibid at R4 01 1 and Commentary Also CBA Code Chapter 9 Commentary 10. Ibid at Commentary to R4 01 1 Also FLS Model Code Rule 4 01 1 and Commentary NB Code of Professional. Conduct Chapter 8 R14 c and NS Code of Professional Conduct Chapter 4 R4 01 and Commentary. result The Tanovich Approach The common justifications relied on to support each viewpoint. will now be looked at to provide additional considerations for the contextual study in Part IV and. this paper s overall conclusion,The Freedman Approach. Professor Monroe Freedman is perhaps the most well known advocate of zealous. Using Truthful Evidence to Discredit Truthful Testimony Jeremy Tatum University of Windsor Faculty of Law 2012 J D Candidate 1 Navigating the Fine Line of Criminal Advocacy Using Truthful Evidence to Discredit Truthful Testimony Introduction The fine line of ethical criminal advocacy and perpetual struggle between the duties to the client court and profession has received much attention

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