Give â•ŸEm the Olâ•Ž Razzle Dazzle: The Ethics of Trial Advocacy and the Case of Kyle Rittenhouse

Suffolk Journal of Trial and Appellate Advocacy Suffolk Journal of Trial and Appellate Advocacy

Volume 27 Issue 2 Article 5

7-11-2022

Give ‘Em the Ol’ Razzle Dazzle: The Ethics of Trial Advocacy and Give ‘Em the Ol’ Razzle Dazzle: The Ethics of Trial Advocacy and

the Case of Kyle Rittenhouse the Case of Kyle Rittenhouse

David A. Lord

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ARTICLE

GIVE ‘EM THE OL’ RAZZLE DAZZLE: THE

ETHICS OF TRIAL ADVOCACY AND THE CASE

OF KYLE RITTENHOUSE

David A. Lord

I.INTRODUCTION .................................................................................................... 206

II.BACKGROUND: THE CASE OF KYLE RITTENHOUSE ............................................ 209

III.OPENING STATEMENT ....................................................................................... 210

A. Impermissible Rhetoric and Argumentation ..................................... 211

B. Misuse of the Opening Statement to Expose the Jury to Inadmissible

Evidence ............................................................................................ 212

C. Vouching for Witnesses or Asserting Personal Opinions ................. 216

IV.DIRECT EXAMINATIONS .................................................................................... 219

A. Candor to the Court ........................................................................... 219

B. Witness Coaching ............................................................................. 221

V.CROSS-EXAMINATION ........................................................................................ 224

A. Cross Without Foundation ................................................................ 225

B. Invading the Province of the Jury ..................................................... 228

C. Comments on a Defendant’s Right to Remain Silent ....................... 230

VI.CLOSING ........................................................................................................... 234

A. Use of Religious, Moral, and Other Inflammatory Rhetoric ............ 234

B. Attacking the Other Side ................................................................... 236

VII.CONCLUSION ................................................................................................... 239

for Alexandria, Virginia and has been a prosecutor for sixteen years. In addition to supervising

other attorneys, David is an experienced litigator, having tried fifty-seven cases before juries and

an immeasurable number of bench trials. David has focused on legal ethics for much of his career,

teaching prosecutorial ethics and lecturing regularly in the area. He has also authored a law review

article on the ethics of plea bargaining in criminal cases that is scheduled for publication in The

Georgetown Journal of Legal Ethics in 2022.

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206 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXVII

I. INTRODUCTION

“Don’t get brazen with me!” Judge Bruce Schroeder shouted at the

prosecutor as he admonished him for purported misconduct in the high-pro-

file murder trial against Kyle Rittenhouse.

Our nation’s attention was re-

cently captivated by this case, which involved a seventeen-year-old defend-

ant charged with homicide after he shot and killed two individuals during a

protest against police brutality.

While the jury eventually acquitted Ritten-

house, the outcome of the case was initially uncertain due to alleged prose-

cutor misconduct at trial.

For example, the prosecution reportedly com-

mented on Mr. Rittenhouse’s invocation of his right to remain silent

following his arrest.

The trial judge subsequently admonished the prosecu-

tor, saying:

I was astonished when you began your examination by com-

menting on the defendant’s post-arrest silence . . . that’s

basic law. It’s been basic law in this country for 40 years,

50 years. I have no idea why you would do something like

that. You know very well that an attorney can’t go into these

types of areas when the judge has already ruled, without ask-

ing outside the presence of the jury to do so.

The prosecution also attempted to question Rittenhouse about evi-

dence that the judge had previously deemed inadmissible

and sought to

introduce evidence in contravention of the judge’s earlier ruling excluding

See Katherine Fung, Rittenhouse Trial Heats up as Judge Screams at Prosecution: ‘Don’t

Get Brazen With Me’, NEWSWEEK (Nov. 10, 2020), https://www.newsweek.com/rittenhouse-trial-

heats-judge-screams-da-dont-get-brazen-me-1648027.

See Teo Armus et. al., Before a Fatal Shooting, Teenage Kenosha Suspect Idolized the Po-

lice, WASH POST (Aug. 27, 2020), https://www.washingtonpost.com/nation/2020/08/27/kyle-rit-

tenhouse-kenosha-shooting-protests/. Rittenhouse was also accused of shooting, but not killing a

third person. Id.

See Maya Yang, Kyle Rittenhouse Lawyers Seek Mistrial as Judge Upbraids Prosecution,

THE GUARDIAN (Nov. 10, 2021), https://www.theguardian.com/us-news/2021/nov/10/kyle-ritten-

house-trial-kenosha-wisconsin-testimony.

See id.

See Louis Caslano, Prosecutors Could be Barred from Re-trying Rittenhouse if Prosecutors

Intentionally Caused Mistrial: Expert, FOX NEWS (Nov. 10, 2021),

https://www.foxnews.com/us/rittenhouse-mistrial-expert.

See Caitlin Dickson, ‘Don’t Get Brazen with Me!’: Rittenhouse Judge Snaps at Prosecutor

as Defense Requests a Mistrial, YAHOO NEWS (Nov. 10, 2020), https://news.yahoo.com/dont-get-

brazen-with-me-rittenhouse-judge-snaps-at-prosecutor-as-defense-requests-a-mistrial-

225840138.html. The prosecution tried to ask Rittenhouse about a video taken weeks before the

shooting in which he said the following about purported shoplifters: “Bro, I wish I had my f***ing

AR. I’d start shooting rounds at them.” Id.

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such evidence.

In response to the defense attorney’s motion for a mistrial,

the prosecutor claimed to have acted in good faith, to which the judge re-

sponded, “When you say you were acting in good faith, I don’t believe that.”

If a mistrial with prejudice had been granted based on the prosecutor’s al-

leged misconduct, it would have represented an astonishing outcome in a

case with a great deal of public attention.

As a prosecutor, I have tried murder cases which garnered signifi-

cant amounts of press coverage and felt tremendous pressure to keep the

community safe and achieve justice. I was acutely aware that every step (and

misstep) I made in court could become the next day’s headline or feature

story on the five o’clock news. The pressure of litigation makes it tempting

to blur ethics lines out of a desire to win—a desire that is natural in an ad-

versarial system.

Litigators are trained to be fierce advocates for their clients in the

courtroom; but when a trial becomes focused on the theatrical performance

of the attorneys, a dangerous line is crossed. One is reminded of the scene

from the musical Chicago, where Billy Flynn, the flamboyant attorney rep-

resenting accused murderess Roxie Hart, tries to comfort his client prior to

her trial.

Flynn explains the idea of a trial by saying, “You got nothing to

worry about. It’s all a circus, kid. A three-ring circus. This trial—the world—

all show business. But kid, you’re working with a star, the biggest!”

Flynn

then sings the catchy song “Razzle Dazzle,” which explains how a trial at-

torney can distract the jury from the evidence if the lawyer puts on a flashy

show.

“How can they hear the truth above the roar?” Flynn asks.

While a Broadway musical may not capture the heart of daily litiga-

tion in America, it points to a well-known danger. In its ideal form, “A crim-

inal trial, like its civil counterpart, is a quest for the truth;”

but this quest

for truth is undermined when the trial shifts its focus from evidence and con-

trolling law and instead centers on emotional appeals to the jury or theatrical

performances by trial counsel. A lawyer who crosses ethical constraints on

trial advocacy may also commit a grave disservice to their client’s interests.

See id. The prosecution tried to introduce a photo of Rittenhouse with members of a white

nationalist group. Id.

See id.

See CHICAGO (Rob Marshall, dir. 2002).

See id.

See Gregory v. United States, 369 F.2d 185, 188 (D.C. Cir. 1966).

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If a mistrial had been granted in the case of Kyle Rittenhouse, for example,

the state’s interests would be undermined at the hands of its own attorney.

This article will explore the dangers of trial theatrics at the four pri-

mary stages of trial: opening statement, direct examination, cross-examina-

tion, and closing argument. It will address the established constitutional and

ethical norms that exist to create guardrails against the derailment of the trial

through theatrics. This article then posits that only strict adherence to these

norms will enable a court to fulfill its role as a facilitator for the quest for the

truth. The trial of Kyle Rittenhouse will be discussed throughout this article

to demonstrate how ethical issues of attorney theatrics arise and are ad-

dressed.

This article will begin with a brief overview of the facts that led to

the Rittenhouse trial. Additional information about the case, such as pretrial

motions and objections, will be considered at various points throughout this

piece. The article will then examine the ethics of trial advocacy during each

of the four trial stages and how some of these issues arose in the case against

Mr. Rittenhouse. The section on opening statements will focus on the use of

impermissible rhetoric and argumentation, misuse of the opening statement

to expose the jury to inadmissible evidence, and the improper use of an open-

ing statement to vouch for the credibility of witnesses. The next section ex-

amines ethical issues in an attorney’s presentation of their witnesses, as well

as what an attorney must do when their witness lies on the stand, and the

dangers of “coaching” a witness. Next, the article will examine ethical

landmines in the cross-examination of opposing witnesses. This section in-

cludes a discussion of cross-examination based on an insufficient founda-

tion, cross-examination that seeks to improperly invade the province of the

jury, and then, specific to criminal law, cross-examination in which a prose-

cutor improperly comments on a defendant’s invocation of their right to re-

main silent. The final section of this paper addresses the closing argument.

The section begins with a discussion of the use of improper rhetoric and ex-

amines the misuse of moral, religious, and otherwise inflammatory language.

The section closes by noting the ethical and constitutional constraints on

See Oregon v. Kennedy, 456 U.S. 667, 671 (1982) (explaining Double Jeopardy Clause).

The Double Jeopardy Clause of the Fifth Amendment protects a defendant against repeated prose-

cutions for the same offense. Id. When a mistrial is ordered on the motion of the defendant, when

deciding whether retrial is prohibited by the Double Jeopardy Clause, the court looks to whether

governmental actions intended to provoke the mistrial request. Id. at 674. “[The Double Jeopardy

Clause] bars retrial where ‘bad-faith conduct by judge or prosecutor,’ threatens the [h]arassment of

an accused by successive prosecutions or declarations of a mistrial so as to afford the prosecution

a more favorable opportunity to convict the defendant.” Id. (quoting United States v. Dinitz, 424

U.S. 600, 611 (1976)). “Only where the governmental conduct in question is intended to ‘goad’

the defendant into moving for a mistrial may a defendant raise the bar of double jeopardy to a

second trial after having succeeded in aborting the first on his own motion.” Id. at 676.

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attorneys who seek to attack the opposing side, including counsel and their

witnesses. At each of these stages, an attorney’s indulgence in theatrical

presentation can harm the court’s ability to facilitate the quest for the truth.

By moving the focus of the trial away from the performance of trial counsel

and back towards the evidence and controlling law, this danger can be min-

imized.

II. BACKGROUND: THE CASE OF KYLE RITTENHOUSE

On August 23, 2020, Jacob Blake, a twenty-nine-year-old Black

man, was shot in the back seven times by a white police officer in Kenosha,

Wisconsin.

Mr. Blake was left partially paralyzed.

The shooting was

captured by a neighbor through a video which was widely circulated, garner-

ing public outrage.

The shooting of Mr. Blake was one of many recent

high-profile incidents involving Black individuals harmed or killed during

encounters with the police.

The shooting was followed by multiple nights of protest involving

hundreds of demonstrators, the deployment of the Wisconsin National

Guard, and the imposition of a curfew.

Media reports described the de-

struction of property during these protests, including a furniture store and

downed streetlamps.

Kyle Rittenhouse, a seventeen-year-old from Illinois whose social

media presence demonstrated a support of law enforcement, came with a

firearm to the scene of the protests.

While there, Rittenhouse shot and

killed two men, Joseph Rosenbaum and Anthony Huber, and injured a third

man, Gaige Grosskreutz.

In a video interview conducted shortly before the

shooting, Rittenhouse appeared in front of a boarded-up business and said:

See Christina Morales, What We Know About the Shooting of Jacob Bake, N.Y. TIMES (Nov.

16, 2021), https://www.nytimes.com/article/jacob-blake-shooting-kenosha.html.

See id.

See Julie Bosman & Sarah Mervosh, Wisconsin Reels After Police Shooting and Second

Night of Protests, N.Y. TIMES (Aug. 24, 2020), https://www.nytimes.com/2020/08/24/us/kenosha-

police-shooting.html.

See id.

See Haley Willis et. al., Tracking the Suspect in the Kenosha Shooting, N.Y. TIMES (Aug.

27, 2020), https://www.nytimes.com/2020/08/27/us/kyle-rittenhouse-kenosha-shooting-

video.html.

See Minyvonne Burke, Kyle Rittenhouse, Charged with Killing 2 Kenosha Protestors, Has

Bond Set at $2M, NBC NEWS (Nov. 3, 2020), https://www.nbcnews.com/news/us-news/kyle-rit-

tenhouse-charged-killing-2-kenosha-protesters-has-bond-set-n1245953.

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So people are getting injured, and our job is to protect this

business . . . . And part of my job is to also help people. If

there is somebody hurt, I’m running into harm’s way. That’s

why I have my rifle—because I can protect myself obvi-

ously. But I also have my med kit.

Videos posted to social media showed shots ringing out in a car lot

before a man was discovered with a gunshot wound to the head.

Ritten-

house was heard saying, “I just killed somebody” as he jogged away from

the scene.

Rittenhouse was ultimately charged with seven offenses: first-de-

gree homicide, use of a dangerous weapon; first-degree recklessly endanger-

ing safety, use of a weapon; first-degree intentional homicide, use of a dan-

gerous weapon; attempted first-degree intentional homicide, use of a

dangerous weapon; first-degree recklessly endangering safety, use of a dan-

gerous weapon; possession of a dangerous weapon by a person under 18; and

a curfew violation.

The curfew violation and underage possession of a fire-

arm charges were dropped by the judge during the course of the trial and

were not considered by the jury.

As to the other charges, Rittenhouse

claimed that he acted in self-defense.

III. OPENING STATEMENT

An attorney’s opening statement sets the tone for a trial and is the

first meaningful opportunity to preview the case for the jury.

Naturally,

both sides want to maximize the impact of their opening statements on the

decision maker’s disposition towards the case. This desire gives rise to three

specific temptations which may present ethical problems in the court room.

The first of these is the use of improper rhetoric—in other words, the use of

an impermissible argument or inflammatory language. The second is the

See NBC Chi., Who is Kyle Rittenhouse? What We Know About the 17-Year-Old Arrested

in Kenosha Shooting, NBC NEWS (Aug. 27, 2020), https://www.nbcchicago.com/news/local/who-

is-kyle-rittenhouse-what-we-know-about-the-17-year-old-arrested-in-kenosha-shooting/2329610/.

See id.

See Clare Hymes, Everything We Know About the Kyle Rittenhouse Trial, CBS NEWS (Nov.

16, 2021), https://www.cbsnews.com/news/kyle-rittenhouse-trial-timeline/.

See id.

See Allison Leotta, 6 More Leading Trial Lawyers Share Secrets of Effective Opening State-

ments, A.B.A J. (Mar. 1, 2017), https://www.abajournal.com/magazine/article/trial_law-

yers_best_opening_statements (“Many of us heard this advice for the first time from our mothers:

‘You don’t have a second chance to make a first impression.’ Opening statements are likely the

first time (except for the rare attorney voir dire) a jury will hear a client’s story and your voice.”)

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misuse of the opening statement to expose the jury to inadmissible evidence.

Since claims made in opening statements are not vetted through the rules of

evidence or by objections from opposing counsel, an attorney may be

tempted to “poison the well” by introducing the jury to prejudicial infor-

mation that would be inadmissible at trial, or by referencing facts that cannot

be supported through admissible testimony. The final temptation involves

vouching for the credibility of witnesses or asserting a personal opinion

about the case. Each temptation highlights the overall danger of which this

article warns—when the theatrical nature of litigation runs rampant, the

court’s quest for the truth is threatened. It is only through the rigorous en-

forcement of ethical and constitutional norms that this danger be avoided.

A. Impermissible Rhetoric and Argumentation

While impermissible rhetoric is addressed later in this article, it is

important to consider the issue when discussing opening statements. It is

easy to dismiss some misplaced trial rhetoric as “a few injudicious words”

uttered in the heat of battle;

but this argument falls flat for opening state-

ments because the battle “has yet to be joined” and such statements are pre-

pared in advance with deliberation and thought.

Rhetoric in an opening

statement crosses the line of permissibility when it is not a summary over-

view of the evidence, but rather commentary, and thus argument, on the ev-

idence itself. The proper time and place for commentary on evidence is dur-

ing summation in the closing argument, where an attorney is permitted to

focus the jury’s attention on the trial evidence and the inferences to be drawn

therefore.”

Neither should an opening statement contain “unnecessary, overly

dramatic characterizations.”

An example of an overly dramatic character-

ization is a statement that a defendant in a tax evasion case “could not have

done a more effective job of getting money . . . if he had went out and bought

a mask, got an acetylene torch . . . and blown the vault door open.”

This

type of assertion could be viewed as an attempt to prejudice the jury against

the other side by destroying their credibility.

See United States v. DeRosa, 548 F.2d 464, 469 (3d Cir. 1977).

See id.

See id. at 470 (internal citations omitted).

See id. (citing United States v. Somers, 496 F.2d 723, 738 (3d Cir. 1974)).

See United States v. Singer, 482 F.2d 394, 398 (6th Cir. 1973).

See id. at 398-99 (first citing Government of Virginia Islands v. Turner, 409 F.2d 102, 103

(1st Cir. 1969); and then citing Leonard v. United States, 277 F.2d 834, 841-42 (9th Cir. 1960)).

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This leads to the natural question— what is an argument that would

render an opening statement problematic? One author, finding case law and

trial advocacy law books insufficient in answering this question, interviewed

experienced litigators in the field and constructed guidance for determining

when an opening statement becomes argumentative.

To avoid becoming

argumentative, a litigator should: (1) use only facts that will clearly be

deemed admissible; (2) avoid all reference to matters beyond the case at

hand; (3) refrain from attacking the opponent’s motive or integrity; (4) leave

it to closing to address why their side is correct; and (5) avoid vouching for

their side’s witnesses and overtly attacking their opponent’s.

B. Misuse of the Opening Statement to Expose the Jury to Inadmissible

Evidence

In its ideal form, the opening statement is an objective summary of

the evidence reasonably expected to be produced; it should not be used as an

opportunity to “poison the jury’s mind” against the other side or “to recite

items of highly questionable evidence.”

Courts recognize that attorneys

may be tempted “to capitalize on evidence which [is] inadmissible because

of a technicality.”

In other words, a litigant who is prohibited from pre-

senting a pertinent fact due to a legitimate evidentiary objection might wish

to reference this fact in an opening statement, hoping that it seeps into the

subconscious of the jury. Trying to “side-step” the rules of evidence in this

way undermines the purpose of the rules, which is to “administer every pro-

ceeding fairly, eliminate unjustifiable expense and delay, and promote the

development of evidence law, to the end of ascertaining the truth and secur-

ing a just determination.”

When a prosecutor acts in bad faith by making a claim in an opening

statement that is not supported by admissible evidence, it may result in a

mistrial.

In federal civil cases, the test for determining whether improper

See Jules M. Epstein, Opening Statement v. Argument—Where is the Line, TEMP. UNIV.

BEASLEY SCH. OF L.: ADVOC. & EVIDENCE BLOG, https://www2.law.temple.edu/aer/opening-

statement-v-argument-where-is-the-line/ (last visited May. 12, 2022).

See id.

See United States v. Brockington, 849 F.2d 872, 874 (4th Cir. 1988) (quoting United States

v. DeRosa, 548 F.2d 464, 470 (3d Cir. 1977)) (identifying a prosecutor’s comment in opening as

improper, but not to the point of warranting reversal, that a picture of the defendant with heavy

gold jewelry was the kind of item specifically worn by drug dealers).

See United States v. Novak, 918 F.2d 107, 110 (10th Cir. 1990).

See FED. R. EVID. 102.

See e.g., Novak, 918 F.2d at 109-10 (analyzing whether a “prosecutor’s failure to introduce

facts a trial supporting statements made during opening argument should result in a mistrial). When

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remarks by counsel should result in a new trial is found in Ventura v. Kyle.

This test focuses on whether (1) the remarks were minor aberrations made in

passing; (2) whether the court took specific curative action; and (3) whether

the size of the damage award suggests that that the improper comments had

a prejudicial effect.

While Ventura addressed improper comments during

closing, the principle at issue is the same—when an attorney makes state-

ments that put inadmissible evidence before the jury, it is ethically imper-

missible and jeopardizes their client’s case.

The facts of the Ventura case provide an example of impermissible

comments that may prejudice the jury. This case involved a defamation claim

asserted by the colorful former Governor of Minnesota and professional

wrestler, Jesse Ventura, against an author who wrote a book about Ventura.

Counsel for the plaintiff, relying solely on witnesses’ denial of knowledge

regarding whether the publisher was insured, argued that the witnesses were

biased because it was, “hard to believe they didn’t know about the insurance

policy[.]”

In its opinion, the court noted that it would be difficult to view

this comment as anything other than a deliberate and strategic choice to in-

fluence damages by referencing an impersonal deep-pocket insurer—a fact

which was both inadmissible if true, and not proven in any event.

Noting

that it is repugnant to a fair trial for a jury to allow the plaintiff to recover

under these circumstances, the court reversed the verdict.

Practical problems also arise when an attorney references testimony

in an opening statement that is never introduced at trial. In Ouber v. Gua-

rino, the First Circuit considered this issue when reviewing an inmate’s ha-

beas corpus petition alleging ineffective assistance of counsel.

During the

opening statement, counsel for the defense promised four times that the de-

fendant would testify, emphasizing the importance of this testimony in as-

certaining whether she knew that envelopes she had delivered contained co-

caine.

The defense ultimately elected not to call the defendant to the stand

and the defendant was convicted.

When determining whether the verdict

should be overturned, the court first considered the defense attorney’s

considering this issue the court looks to whether the prosecutor acted in good faith and the impact

the statements had on the trial. See id. at 109.

825 F.3d 876 (8th Cir. 2015).

See Ventura v. Kyle, 825 F.3d 876, 885 (8th Cir. 2015).

See id. at 878-82.

See id. at 881.

See id. at 885.

See Ventura, 825 F.3d at 886 (citing Halladay v. Verschoor, 381 F.2d 100, 112 (8th Cir.

1967)).

See Ouber v. Guarino, 293 F.3d 19, 20 (1st Cir. 2002)

See id. at 22.

See id. at 23.

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conduct during trial.

The court reasoned that the decision to present the

defendant’s testimony as the centerpiece of the defense, and then to subse-

quently advise his client against testifying, could not be seen as part of rea-

soned trial strategy and thus constituted an error in professional judgment.

However, the court noted that only the most inexcusable misstep by trial

counsel would lead to a finding that performance was so deficient that the

defendant did not have adequate representation.

The court ultimately con-

cluded that, “counsel committed an obvious error, without any semblance of

a colorable excuse.”

When examining whether counsel’s misstep preju-

diced the case, the court noted that the jury was deadlocked before eventually

reaching the verdict.

Given how close the case was, the error, while argu-

ably small, was rather monumental.

Accordingly, the verdict was set aside

because of this deficiency.

Promising a jury certain testimony and then not

presenting it can lead the jury to question the integrity of one side or to as-

sume that testimony would have been damaging.

Ouber highlights how a

broken promise made in opening can be detrimental to a client’s case.

It is important to note that discussing otherwise inadmissible evi-

dence in opening allows the opposing party to admit evidence on the same

subject.

For example, referencing an inadmissible out-of-court statement

of a witness may allow the opposing side to introduce the statement or testi-

mony about it.

Similarly, calling a witness a liar in opening statement may

justify the introduction of testimony that bolsters that witness’s credibility.

It is clearly established in case law that a lawyer cannot use the open-

ing statement as an opportunity to present evidence that will not later be ad-

mitted. This rule is also codified in the Rules of Professional Conduct, which

states that a lawyer at trial shall not “allude to any matter the lawyer does not

reasonably believe is relevant or that will be supported by admissible

See id. at 25 (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)).

See Ouber, 293 F.3d at 27.

See id. at 27.

See id. at 32.

See id. at 33.

See id.

See Ouber, 293 F.3d at 35.

See United States v. Gonzalez-Maldonado, 115 F.3d 9, 15 (1st Cir. 1997) (“A defendant’s

opening statement prepares the jury to hear his case. If the defense fails to produce promised expert

testimony that is critical to the defense strategy, a danger arises that the jury will presume the expert

is unwilling to testify and the defense is flawed.”)

See United States v. Chavez, 229 F.3d 946, 952 (10th Cir. 2000).

See id.

See United States v. Croft, 124 F.3d 1109, 1120 (9th Cir. 1997) (citing United States v.

Santiago, 46 F.3d 885, 891 (9th Cir. 1995)).

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evidence[.]”

To prevent the misuse of an opening statement by opposing

counsel, litigators may file a motion in limine.

Attorneys frequently find themselves in situations where the

opposing counsel persistently solicits prejudicial evidence

which, although logically relevant, is not legally relevant.

When this situation arises, the attorney is faced with the di-

lemma of either continually objecting to the evidence,

thereby arousing the suspicions of the jury and creating ad-

ditional prejudice, or not objecting to the evidence, thereby

waiving the right to raise the issue in a motion for a new trial

or on appeal. To avoid facing this double-edged sword,

many experienced trial attorneys employ a relatively new

procedural device: the motion in limine.

In addition to preventing the opposing side from introducing preju-

dicial testimony, a successfully argued motion in limine precludes the op-

posing side from referencing the evidence in their opening statement.

This tactic was used successfully by Kyle Rittenhouse’s attorneys

when they moved to exclude evidence of a video taken prior to the shooting,

where Mr. Rittenhouse made statements intimating a predisposition for vio-

lence.

The defense also filed a motion seeking to prevent the prosecution

from introducing evidence that the defendant was affiliated with the group

known as the Proud Boys.

The prosecutor wanted to argue that

See MODEL RULES OF PROF. CONDUCT r. 3.4 (AM. BAR ASS’N 2020) [hereinafter MODEL

RULES].

See In limine, BLACK’S LAW DICTIONARY (9th ed. 2009) (stating motion in limine is one

that is raised prior to trial “because of an issue about the admissibility of evidence believed by the

movant to be prejudicial”).

See Johnny K. Richardson, Use of Motions in Limine in Civil Proceedings, 45 MO. L. REV.

130, 130 (1980).

See United States v. Novak, 918 F.2d 107, 109 (10th Cir. 1990) (explaining counsel may

generally refer to evidence in their opening statement which they reasonably expect to be intro-

duced). Consider a situation where there is prejudicial evidence at issue and the parties have not

litigated the admissibility of that evidence through a motion in limine. The proponent of the evi-

dence is theoretically justified in referencing the testimony in the opening statement, assuming they

have a reasonable belief that the evidence will be admitted. If that belief is incorrect and the testi-

mony is later excluded, the minds of the jury may be poisoned by hearing about the evidence, even

though it was never actually admitted at trial. Successfully precluding references to the evidence

in the motion in limine can protect against this harm.

See discussion infra Section V, Subsection A. This motion will be discussed in-depth later

in this article in the portion discussing cross-examination without foundation.

See Todd Richmond, Judge: Prosecutor’s Can’t Show Rittenhouse Link to Proud Boys, AP

NEWS (Sept. 17, 2021), https://apnews.com/article/wisconsin-police-trials-gun-politics-kenosha-

8cd887f731ace320bf945f9524ceb252.

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216 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXVII

Rittenhouse, who had been seen at a bar with members of this white nation-

alist group, shared in its “white supremacist philosophies and violent tac-

tics.”

The defense argued that the racial overtones of the original protests

notwithstanding, there was insufficient evidence connecting him to the

Proud Boys and no evidence that the shootings were racially motivated, as

the men he shot at were white.

The judge agreed with the defense and

excluded the testimony.

Had this motion not been successfully raised by

the defense, the prosecution could have referenced these facts in its opening

statement, implying to the jury that the defendant was associated with a

group most people detest.

C. Vouching for Witnesses or Asserting Personal Opinions

The Rules of Professional Conduct prohibit attorneys from “assert-

ing personal knowledge of facts in issue” or stating “a personal opinion as to

the justness of a cause, the credibility of a witness, the culpability of a civil

litigant or the guilt or innocence of the accused.”

Behavior which violates

this norm can take two related forms. The first is “vouching”

for a wit-

ness—in other words, stating a personal opinion as to the credibility of a

witness. The second is stating a personal opinion about the case more

broadly. As a preliminary matter, it is worth noting that these admonitions

are not restricted to the opening statement alone and apply throughout the

trial. Thus, the problems associated with engaging in this type of conduct

can occur in the opening statement as well as the closing argument.

When an attorney inserts their personal knowledge and views into

the case, they lend their own credibility to the witnesses and evidence, po-

tentially distracting and swaying the jury. The danger of this is even greater

when the vouching is done by a prosecutor, as a prosecutor’s opinion, “car-

ries with it the imprimatur of the Government and may induce the jury to

trust the Government’s judgment rather than its own view of the evidence.”

When an attorney states a personal opinion, they can also convey the impres-

sion that evidence not presented to the jury, but known to the attorney,

See id.

See MODEL RULES r. 3.4.

See United States v. Alcantara-Castillo, 788 F.3d 1186, 1191 (9th Cir. 2015) (declaring law-

yers may not “vouch for a witness by offering their personal opinion of a witness’s testimony or

suggesting that information exists outside the record that verifies the witness’s truthfulness”).

See id. (quoting United States v. Reyes, 577 F.3d 1069, 1077 (9th Cir. 2009)).

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supports that attorney’s side, thus creating the risk that the case will not be

tried solely on the basis of evidence presented in court.

The Supreme Court case of Berger v. United States highlights the

danger of an attorney who uses trial theatrics to turn the attention of the jury

from the evidence.

In Berger, the defendant’s conviction was overturned

because the federal prosecutor had, “overstepped the bounds of propriety and

fairness which should characterize the conduct of such an officer[.]”

Spe-

cifically, the Court took issue with the attorney’s misstating facts during

cross examination; “putting words” into the mouths of witnesses; referring

to statements that had been made to him out of court without proof; pretend-

ing to understand a witness as saying something other than what they had

said; assuming prejudicial facts not in evidence; bullying and arguing with

witnesses; and “in general . . . conducting himself in a thoroughly indecorous

and improper manner.”

The Court found the attorney’s presentation of the

case “undignified and intemperate” because it contained improper insinua-

tions and assertions that were calculated to mislead the jury.

The opinion

further criticized the prosecutor’s failed attempts to lead a witness who had

trouble identifying the defendant, saying, “I was examining a women that I

knew knew [the defendant] and could identify him, she was standing right

here looking at him, and I couldn’t say, ‘Isn’t that the man?’ Now imagine

that! But that is the rules of the game, and I have to play within those rules.”

The Court noted that this insinuation invited the jury to conclude that the

witness knew the defendant and that this was within the personal knowledge

of the attorney. Because assertions of personal knowledge by an attorney

are apt to carry weight with the jury, an attorney cannot express a personal

opinion about a witness’s credibility, guarantee their truthfulness, or imply

that the attorney knows something the jury does not.

Admittedly, determining what constitutes impermissible vouching is

often difficult. Generally, vouching occurs when an attorney asserts their

See Young v. United States, 470 U.S. 1, 18 (1985).

See Berger v. United States, 295 U.S. 78, 89 (1935).

See id. at 79, 84.

See id. at 84.

See id. at 85.

See Berger, 295 U.S. at 87.

See id. at 88; see also United States v. Roundtree, 534 F.3d 876, 880 (8th Cir. 2008) (citing

United States v. Benitez–Meraz, 161 F.3d 1163, 1167 (8th Cir.1998)). “Improper vouching may

occur when the government expresses a personal opinion about credibility, implies a guarantee of

truthfulness, or implies it knows something the jury does not.’” Id.; United States v. Jones, 468

F.3d 704, 707 (10th Cir. 2006)). “It is a due process error for a prosecutor to indicate ‘a personal

belief in the witness’ credibility, either through explicit personal assurances of the witness’ veracity

or by implicitly indicating that information not presented to the jury supports the witness’ testi-

mony.’” Id. (quoting United States v. Bowie, 892 F.2d 1494, 1498 (10th Cir.1990)).

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218 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXVII

own viewpoint as to the credibility of a witness rather than drawing an ap-

propriate inference from the evidence.

Such a practice is impermissible

because it introduces “credibility evidence that would have been inadmissi-

ble during trial.”

Vouching and commentary is obvious when, for example,

the attorney makes statements such as “I believe [Witness X] was credible”

or “I don’t think [Witness Y] was truthful up here on the stand[.]”

Asser-

tions that a witness was telling the truth or lying crosses the same line.

Implying that a witness would not have lied because of the ramifications of

committing perjury poses similar issues, as it suggests that the attorney

knows something about the consequences of lying that the jury does not.

An attorney’s discussion of a witness’s motivation for testifying or the safe-

guards established to ensure that a witness does not lie, however, do not con-

stitute impermissible vouching.

This could include referring to a witness

as “meticulous,” as long as the attorney reviews the witness’s testimony in

context and does not otherwise personally endorse such testimony.

Interestingly, it was the judge the Rittenhouse case, and not the at-

torneys, who vouched for a witness.

On Veteran’s Day, the judge asked if

there were any veterans on the jury or elsewhere in the courtroom.

He then

noted that the defendant’s next witness, John Black, was a veteran and en-

couraged everyone to, “give a round of applause to the people who have

served our country.”

Legal experts noted that this may have encouraged

jurors to view the witness more favorably.

This highlights the particular

dangers of vouching—rather than leaving the issue of the credibility to the

See United States v. Andreas, 216 F.3d 645, 671-72 (7th Cir. 2000) (describing two inter-

pretations of prosecutor’s statement). In Andreas, the prosecutor stated that the case against the

defendant was “one of the most compelling and powerful that has ever been presented in an Amer-

ican courtroom.” Id. The court noted that this comment could be interpretated as either a remark

on the strength of the evidence or as the prosecutor expressing a personal opinion about the strength

of the evidence. Id.

See id. at 671.

See United States v. Green, 119 Fed. Appx. 133, 134 (9th Cir. 2004) (overturning a defend-

ant’s convictions because of impermissible vouching by the prosecutor).

See United States v. Weatherspoon, 410 F.3d 1142, 1147 (9th Cir. 2005).

See id. at 1146 (citing United States v. Combs, 379 F.3d 564, 574-76 (9th Cir. 2004)).

See Bass v. United States, 655 F.3d 758, 761 (8th Cir. 2011) (“Although attempts to bolster

a witness by vouching for his credibility are normally improper, the government may explain why

the jury might find the government’s witnesses credible” (citing United States v. Roundtree, 534

F.3d 876, 880 (8th Cir. 2008))).

See id.

See Nicholas Bogel-Burroughs, In Scrutinized Kyle Rittenhouse Trial, It’s the Judge Com-

manding Attention, N.Y. TIMES (Nov. 11, 2021), https://www.nytimes.com/2021/11/11/us/kyle-

rittenhouse-judge-bruce-schroeder.html

See id.

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jury, one of the trial “actors” linked his own credibility to a witness, poten-

tially skewing the jury’s analysis of the witness’s testimony.

IV. DIRECT EXAMINATIONS

When an attorney determines which witnesses to call to the stand

and what questions to ask, they are writing the script that the jury will hear

during trial. While a skilled attorney seeks to narrate a compelling story to

maintain the jury’s attention, too much drama may detract from the truth.

When calling witnesses to the stand and examining them, there are two major

ethical issues that may arise. The first involves an attorney’s duty of candor

to the court, including what the lawyer must do when their witness tells a lie

from the stand. The second concerns “coaching” and how an attorney should

properly prepare a witness for testifying.

A. Candor to the Court

When I teach ethics to newer prosecutors, I ask what they must do

when their witness lies on the stand. They often respond that they should

tell the defense attorney. While this is a good instinct, it is an insufficient

response because it only satisfies an attorney’s ethical obligations to oppos-

ing counsel, not to the court. The Rules of Professional Conduct outline

three strict rules involving an attorney’s candor to the court: (1) a lawyer

must not make a false statement of fact or law to the court and must correct

one previously made; (2) a lawyer must disclose controlling legal authority

adverse to their position that is not disclosed by the other side; and (3) a

lawyer must not offer evidence that the lawyer knows to be false.

With

respect to the last of these, the rules further note that if the lawyer learns of

false testimony by their client or witness, they shall “take reasonable reme-

dial measures, including, if necessary, disclosure to the tribunal.”

Recog-

nizing that false testimony might come from an attorney’s client and that

disclosing the falsity could result in serious ramifications to the client, the

official comments to the rule suggest a sequential three-part method for ad-

dressing a client’s false testimony.

First, the attorney should seek the cli-

ent’s cooperation in withdrawing or correcting the false statement.

If that

fails, the attorney should seek to withdraw from representing the client.

See MODEL RULES r. 3.3.

See id.

See id. at cmt 10.

See id.

See MODEL RULES r. 3.3

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220 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXVII

withdrawal is either not permitted or will not undo the effect of the false

testimony, then the attorney must disclose the false testimony “as is reason-

ably necessary to remedy the situation,” even if it requires disclosure of priv-

ileged attorney-client communication.

The duty to correct a witness’s or client’s misrepresentation is on-

going and may continue beyond the immediate proceeding.

Moreover, fail-

ing to uphold the duty of candor to the court may subject the attorney to

serious consequences, such as suspension. “[S]uspension is generally appro-

priate when a lawyer knows that false statements or documents are being

submitted to the court or that the material information is improperly being

withheld, and takes no remedial action . . . .”

The attorney violating this

norm may also be financially sanctioned and forced to pay attorney’s fees

for the other side.

100

In one case, the Fourth Circuit offered blistering com-

mentary regarding a prosecutor’s violations of the duty of candor.

101

The

court wrote:

Make no mistake, however. We may find such practices

‘harmless’ as to a specific defendant’s verdict, but as to liti-

gants in the Eastern District of North Carolina and our jus-

tice system at large, they are anything but harmless. No one

in this county is so high that she or he is above the law. No

officer of the law may set that law in defiance with impunity.

All the officers of the government, from the highest to the

lowest, are creatures of the law and are bound to obey it. The

law of this country promises defendants due process, and the

professional code to which attorneys are subject mandates

candor to the court, and fairness to opposing parties. Yet the

United States Attorney’s office in this district seems un-

fazed by the fact that the discovery abuses violate constitu-

tional guarantees and misrepresentations erode faith that

justice is achievable. Something must be done.

102

See id.

See United States v. Shaffer Equip. Co., 11 F.3d 450, 458 (4th Cir. 1993).

See STANDARDS FOR IMPOSING LAW. SANCTIONS § 6.12 (AM. BAR ASS’N, amended

1992)).

100

See Six v. Generations Fed. Credit Union, 891 F.3d 508, 510 (4th Cir. 2018) (upholding

sanctions against an attorney who challenged the authenticity of a loan agreement for two years

before revealing that they possessed an identical copy, obtained from their client, before filing the

complaint).

101

See United States v. Bartko, 728 F.3d 327, 342 (4th Cir. 2013).

102

See id. at 342 (internal citation omitted).

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The court then urged the district court to meet with the prosecutor’s

office to develop remedial procedures to correct these issues and directed the

Clerk of Court to serve its opinion on the United States Attorney General

and the Office of Professional Responsibility for the Department of Justice

with a transmittal letter that “should call attention to this section of the opin-

ion.”

103

It is important to understand the rule requiring candor to the tribunal

as part of a larger objective of preserving the integrity of the judicial sys-

tem—it is not enough that the lawyer merely refrain from making affirmative

misstatements.

104

For example, if, after filing pleadings based on the repre-

sentations of a witness, an attorney later discovers that there are serious ques-

tions about that individual’s credibility and allows the case to proceed una-

bated, that attorney has violated their duty of candor to the court.

105

In other

words, an attorney cannot “shelter” themselves behind an argument that they

do not have “actual knowledge” that a witness lied when they have a sub-

stantial reason to believe that is the case.

106

An attorney who, upon discov-

ering issues undermining their witnesses’ testimony, responds by failing to

reveal it, obstructing the other side’s ability to discover it, or continuing as

if nothing has happened, can be rightfully sanctioned.

107

Upholding one’s

duty of candor to the court ensures that the trial avoids theatrics and focuses

on the law and evidence. In a trial, the role of the witness in a proper pro-

ceeding is to speak the truth, not to simply provide the lines that will help its

favored side prevail. It is the attorney’s ethical duty to ensure that the wit-

ness’ testimony is honest and not misleading.

B. Witness Coaching

While litigators are permitted to meet with their witnesses before

trial and prepare for their testimony, there is a point where such preparation

becomes coaching

108

“Coaching” is understood as an attorney’s improper

directing of a witness’s testimony as to “have it conform with, conflict with,

or supplement the testimony of other witnesses.”

109

This may occur in a

pretrial setting or during the witness’s actual testimony. Where an attorney

103

See id.

104

See United States v. Shaeffer Equip. Co., 11 F.3d 450, 458 (4th Cir. 1993).

105

See id. at 459.

106

See id.

107

See id. at 461.

108

See Banks v. Thaler, 583 F.3d 295, 322-23 (5th Cir. 2009); United States v. Nambo-Bara-

jas, 338 F.3d 956, 962-63 (8th Cir. 2003).

109

See Crutchfield v. Wainwright, 803 F.2d 1003, 1110 (11th Cir. 1986) (overturned on other

grounds United States v. Cavallo, 790 F.3d 1202, 1217-18 (11th Cir. 2015)).

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222 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXVII

has “inappropriately ‘coached’ a witness, thorough cross-examination of that

witness violates no privilege and is entirely appropriate to address the issue

[of coaching].”

110

If done correctly, such cross-examination can determine

the extent of the coaching and develop a sufficient record that can be used to

question the witness’s credibility.

111

But while cross-examination plays an

important role in preventing coaching, it is not a complete answer. The avail-

ability of a sequestration order under rules of evidence demonstrates “that

cross-examination may not be wholly sufficient to safeguard the truth-find-

ing function in all circumstances.”

112

It should also be noted that an attorney’s actions while engaging the

witness on the stand may constitute coaching. “Head-nodding and eye

movements . . . theoretically can cross the line and constitute improper

vouching.”

113

While nodding as a witness speaks may be unintentional, it

has the potential to enter into the realm of coaching when it becomes “un-

professional and inappropriate.”

114

Conduct such as providing a highlighted

transcript to a witness with suggested language similarly constitutes coach-

ing.

115

The Fifth Circuit has suggested that, to prepare witnesses without

coaching, an attorney should allow the witness to provide their version of

what occurred without suggestion and then “probe, test, and further explore

any portions of that version that may be inconsistent with the witness’[s]

earlier statements, or other expected evidence.”

116

Coaching occurs when

the witness is pressured or pushed into changing their story, such that coer-

cion has occurred.

117

Impermissible coaching may affect the adjudication of the case at

bar. Attorneys who are notorious for such conduct could have civil verdicts

110

See United States v. Rhynes, 196 F.3d 207, 247 (4th Cir. 1999); see also United States v.

Mitola, 213 Fed. Appx. 579, 579 (9th Cir. 2006) (citing Geders v. United States, 425 U.S. 80, 89

(1976)); United States v. Carrillo, 16 F.3d 1046, 1050 (9th Cir. 1994).

111

See Geders v. United States, 425 U.S. 80, 89-90 (1976).

112

See United States v. Rhynes, 206 F.3d 349, 369 (4th Cir. 1999); see also FED. R. EVID. 615.

Under the Rules of Evidence, the court upon motion of the parties must exclude witnesses from a

courtroom (with limited exceptions), so that they cannot hear other witness testimony. Id. “The

purpose of sequestration is to prevent witnesses from tailoring their testimony to that of prior wit-

nesses and to aid in detection of dishonesty.” United States v. Collins, 340 F.3d 672, 681 (8th Cir.

2003) (citing United States v. Vallie, 284 F.3d 917, 921 (8th Cir. 2002)).

113

See United States v. Sepulveda-Hernandez, 752 F.3d 22, 31 (1st Cir. 2014) (citing United

States v. Collins, 78 F.3d 1021, 1039 (6th Cir. 1996)); United States v. Bermea, 30 F.3d 1539, 1563

(5th Cir. 1994).

114

See United States v. Casas, 425 F.3d 23, 47 (1st Cir. 2005).

115

See e.g., Ibarra v. Baker, 338 Fed. Appx. 457, 467-68 (5th Cir. 2009)

116

See Banks v. Thaler, 583 F.3d 295, 325 (5th Cir. 2009).

117

See id. at 325-26.

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overturned

118

and can be denied pro hac vice status.

119

Improper coaching

of a witness by a prosecutor may result in the declaration of a mistrial with

a bar on retrying the defendant,

120

and coaching in a deposition could lead to

dismissal of a complaint with prejudice.

121

Coaching carries disciplinary

consequences as well, and may result in an attorney being found in con-

tempt.

122

Even a mere suspicion of coaching may result in a strong admoni-

tion from the court, which may state, for example, “we caution that coaching

witnesses to offer false testimony would be a serious violation of profes-

sional standards and could amount to criminal conduct.”

123

Like the other dangers noted in this article, coaching has a theatrical

component to it. A coached witness is like an actor who memorizes their

lines so that the production goes as planned, and when an attorney indulges

the theatrical nature of the trial, they risk overshadowing the truth. Embed-

ded in prohibitions against coaching is the concern that an overly prepared

witness will not speak the unvarnished truth, but simply parrot what the at-

torney has told them to say in the manner they were told to say it.

124

118

See Spruill v. Nat’l R.R. Passenger Corp., No. 93-4706, 1995 U.S. Dist. WL 534273, at *1

(E.D. Pa. 1995).

119

See Jacob v. Nat’l R.R. Passenger Corp., 63 Fed. Appx. 610, 612 (3d Cir. 2003). Pro hac

vice refers to a lawyer who has not been admitted to practice in a particular jurisdiction but is

admitted temporarily for the purpose of conducting a particular case. Pro hac vice, BLACK’S LAW

DICTIONARY (9th ed. 2009).

120

See Lovinger v. Cir. Ct. of 19th Jud. Cir., 845 F.2d 739, 744 (7th Cir. 1988).

121

See Friends of Animals v. United State Surgical Corp., 131 F.3d 332, 333 (2d Cir. 1997).

122

See Benson v. American Export Isbrandtsen Lines, Inc., 478 F.2d 152, 155 (3d Cir. 1973)

(declining to overturn contempt finding after defense counsel ignored trial judge’s warnings against

coaching witness).

123

See Victor v. R.C. Bigelow, Inc., 708 Fed. Appx. 333, 334 n.2 (9th Cir. 2017).

124

See Perry v. Leeke, 488 U.S. 272, 283 (1989). The manner in which truth can be compro-

mised by over-preparation between a witness and an attorney is highlighted by the following quote

from the Supreme Court:

Cross-examination often depends for its effectiveness on the ability of counsel to punch

holes in a witness’ testimony at just the right time, in just the right way. Permitting a

witness, including a criminal defendant, to consult without counsel after direct examina-

tion but before cross-examination grants the witness an opportunity to regroup and re-

gain a poise and sense of strategy that the unaided witness would not possess. This is

true even if we assume no deceit on the part of the witness; it is simply an empirical

predicate of our system of adversary rather than inquisitorial justice that cross-examina-

tion of a witness who is uncounseled between direct examination and cross-examination

is more likely to lead to the discovery of truth than is cross-examination of a witness

who is given time to pause and consult with the attorney. ‘Once the defendant places

himself at the very heart of the trial process, it only comports with basic fairness that the

story presented on direct is measured for its accuracy and completeness by uninfluenced

testimony on cross-examination.’

Id. at 282-83 (quoting United States v. DiLapi, 651 F.2d 140, 151 (2nd Cir. 1981)).

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224 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXVII

adhering to ethical rules against coaching and refusing to fuel this theatrical

style of trial, the attorney can focus the proceeding on the evidence and the

law, in a quest for the discovery of truth.

V. CROSS-EXAMINATION

In the legal classic, The Art of Cross-Examination, author Francis

Wellman emphasized the importance of cross-examination and its impact on

the outcome of a case:

125

“The issue of a cause rarely depends upon speech

and is but seldom even affected by it. But there is never a cause contested,

the result of which is not mainly dependent upon the skill with which the

advocate conducts his cross-examination.”

126

The United States Supreme

Court has similarly recognized cross-examination as, “the greatest engine

ever invented for the discovery of the truth.”

127

Cross-examination has an

outsized role in adjudication and is generally idealized (perhaps unfairly) as

the most effective means for exposing deception and error.

128

The act of cross-examination is often an unequal battle of skill be-

tween a trained attorney and a potentially inexperienced witness. With cross-

examination having such a central role in the litigation process, attorneys

may take advantage of this disparate skill level to secure a decisive win for

their client. When attorneys succumb to this temptation, cross-examination

is not used as a mechanism for sifting out the truth, but rather as a tool for

presenting a slanted version of reality in the hopes of benefiting one side.

The ethical and constitutional constraints on cross-examination are

divided into three general classes of rules. The first class ensures that cross-

examination is based on an appropriate foundation and is not used to put

otherwise inadmissible testimony before the jury. The second set of rules

focuses on restraining a litigator’s use of cross-examination in a way that

invades the province of the jury in determining credibility and ultimate issues

of fact.

129

The third class, specific to criminal law and of significant import

125

See FRANCIS L. WELLMAN, THE ART OF CROSS-EXAMINATION 21 (4th ed. 1997).

126

See id.

127

See California v. Green, 399 U.S. 149, 158 (1970); Lilly v. Va., 527 U.S. 116, 124 (1999);

Kentucky v. Stincer, 482 U.S. 730, 736 (1987); Maryland v. Craig, 497 U.S. 836, 846 (1990).

128

See United States v. Leibowitz, 919 F.2d 482, 484 (7th Cir. 1990). Judge Posner wrote of

cross-examination that it might be “the only resource of the defendant in unmasking the falsity” of

testimony against him, but that cross-examination, “much mythology to the contrary notwithstand-

ing—is not an infallible lie detector.” Id.

129

See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determina-

tions, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury

functions.”); Slocum v. New York Life Ins. Co., 228 U.S. 364, 388 (1913) (“[I]t is the province of

the jury to hear the evidence and by their verdict to settle the issues of fact, no matter what the state

of the evidence.”)

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in the Rittenhouse case, prohibits a prosecutor from asking about a defend-

ant’s assertion of his right under Miranda to remain silent following his ar-

rest.

A. Cross Without Foundation

A trial lawyer may not, “allude to any matter that the lawyer does

not reasonably believe is relevant or that will not be supported by admissible

evidence[.]”

130

Rules governing the admissibility of evidence can frustrate

a litigator as they may keep information from a jury that would benefit their

client.

131

Attorneys are often tempted to circumvent these evidentiary hur-

dles through cross-examination of a witness, and courts must constrain such

questioning to ensure that the rules of evidence are not undermined.

132

United States v. Cunningham highlights the damage that results

when these rules are not sufficiently policed. In that case, a defendant was

cross-examined by a prosecutor who referenced government intelligence re-

ports that were never introduced into evidence.

133

Through this line of ques-

tioning, the government implied that the defendant was involved in drug

dealing without producing witnesses with first-hand knowledge of this as-

sertion—witnesses whose testimony could be challenged by the defend-

ant.

134

The Sixth Circuit noted that the cross-examination of the defendant

“was almost entirely based upon hearsay, suspicion, unverified sources and

unreliable innuendo.”

135

130

See MODEL RULES r. 3.4(e)

131

See FED. R. EVID. 403. Rules of evidence for example require that the probative value of

evidence be weighed against its prejudicial effect with the intent of excluding evidence which might

be relevant if it risks the danger of unfair prejudice or has a likelihood of confusing the trier of fact.

Id.; Sprint v. Mendelsohn, 552 U.S. 379, 384 (2008).

132

By way of example, though it occurred in direct examination rather than cross-examination.

Several years ago, I saw a defense attorney accomplish this quite skillfully. His client claimed an

alibi against the charges by asserting that at the time of the offense he had travelled to a different

state. Rather than proceeding with the laborious, expensive, and often unsuccessful task of sub-

poenaing out-of-state witnesses to back the alibi testimony, the attorney asked his client, “what was

the first thing you did when you arrived in New Jersey (the other state)?” The defendant responded

he had used an ATM. The attorney asked him if he remembered the precise time he had used the

ATM and the defendant responded that he did not. The attorney then refreshed his recollection

using an ATM receipt, which is permissible. FED. R. EVID. 612. The judge ultimately credited the

alibi, citing to how well corroborated it had been, but it had never actually been corroborated. After

all, the receipt itself was not in evidence. However, this litigation “trick,” created the impression

for the judge that independent evidence supported the defendant’s testimony.

133

See United States v. Cunningham, 529 F.2d 884, 885 (6th Cir. 1976).

134

See id.

135

Id. at 887.

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Similarly, in United States v. Crawford, a prosecutor insinuated that

a defendant associated with convicted drug users and dealers by asking him

if he knew particular individuals.

136

Here, the court opined that the defendant

had not placed his general character in issue and it was therefore inappropri-

ate to throw, “a shroud of suspicion over [him] and his knowledge of the

drug traffic.”

137

The court also noted that cross-examination is improper and

unfair when it is intended to do nothing but degrade the other party and prej-

udice the jury against him.

138

The Seventh Circuit has outlined other examples of impermissible

attempts to shortcut laying appropriate evidentiary foundation.

139

For in-

stance, the court has stated that it is improper for a lawyer to “ask a question

which implies a factual predicate which the examiner knows he cannot sup-

port by evidence or for which he has no reason to believe that there is a

foundation of truth.”

140

Examples include asking a witness about prior in-

consistent statements without being prepared to call the person to whom the

inconsistent statement was made

141

and asking a witness about prior convic-

tions without having a certified record of conviction in the event of a de-

nial.

142

It should be noted, however, that a lawyer does not always have a

universal duty to introduce the factual predicate for a question and the court

may rest its analysis on the good-faith of the questioner.

143

It is also inappropriate for an attorney to introduce wholly inadmis-

sible testimony during cross-examination. In United States v. Sanchez, for

example, a prosecutor wanted to show that the defendant’s wife, who could

not be called to the stand due to marital privilege,

144

had told an investigator

facts that contradicted the defendant’s testimony on the stand.

145

The

136

See United States v. Crawford, 438 V.2d 441, 443-44 (8th Cir. 1971).

137

See id. at 444-45.

138

See id. at 445 (quoting Salerno v. United States, 61 F.2d 419, 424 (8th Cir. 1932)).

139

See United States v. Harris, 542 F.2d 1283, 1307 (7th Cir. 1976).

140

Id.

141

See United States v. Bohle, 445 F.2d 54, 73-74 (7th Cir. 1971).

142

See State v. Williams, 210 N.W.2d 21, 25-26 (Minn. 1973) (finding prosecutor questioning

defendant about prior crimes for which ‘rap sheet’ did not provide factual basis was improper and

prejudicial); cf. Ciravolo v. United States, 384 F.2d 54, 55 (1st Cir. 1967) (finding prosecutor ques-

tioned defendant about prior felony, which in reality was a misdemeanor was prejudicial).

143

See Harris, 532 F.2d at 1307-08.

144

See C. MUELLER, L. KIRKPATRICK, & L. RICHTER, EVIDENCE § 5.31 (6th ed. 2018) (noting

there are two common forms of marital privilege). The testimonial privilege gives a witness a right

to refuse to testify against their spouse in criminal proceedings and, in some states, empowers

someone charged with a crime from preventing their spouse from testifying against them. Id. The

confidences privilege (also called marital communications privilege) allows witnesses to refuse to

reveal their own confidential marital communications and to prevent their spouses from doing so.

Id.

145

See United States v. Sanchez, 176 F.3d 1214, 1221-22 (9th Cir.1999).

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prosecutor attempted to evade spousal privilege by asking the defendant dur-

ing cross-examination why his wife would have made these statements to

investigators and whether she was lying.

146

The opinion noted that “[i]t is

improper ‘under the guise of ‘artful cross-examination’ to tell the jury the

testimony of otherwise inadmissible evidence.’”

147

The court ended with a

colorful comment, noting that “‘while prosecutors are not required to de-

scribe sinners as saints, they are required to establish the state of sin by ad-

missible evidence unaided by aspersions that rest on inadmissible evidence,

hunch or spite.’”

148

By pursuing this line of cross-examination, the prosecu-

tor essentially undermined the protections of spousal privilege.

149

A variation of this problem emerged during the Rittenhouse trial and

partially formed the basis for the defense’s request for a mistrial.

150

Prior to

the trial, prosecutors sought to introduce evidence of a video taken fifteen

days before the shooting on which Rittenhouse commented that he wished

he had his rifle to shoot several men he suspected as shoplifters.

151

The pros-

ecutors believed that this showed his mindset as “a teenage vigilante, involv-

ing himself in things that [did not] concern him.”

152

The judge indicated that

he was not inclined to allow this evidence, but suggested he might reassess

his opinion at trial.

153

The probative value of such evidence is arguably sub-

stantially outweighed by its prejudicial effect, which the Federal Rules of

Evidence preclude.

The prosecutor, rather than raising the issue outside of the presence

of the jury, peppered the defendant on cross-examination with questions

about whether it was acceptable to use deadly force to protect one’s personal

property.

154

When confronted, the prosecutor argued that the judge had left

146

See id. at 1221.

147

See id. at 1222 (quoting United States v. Hall, 989 F.2d 711, 716 (4th Cir. 1993)).

148

See id. (quoting United States v. Schindler, 614 F.2d 227, 228 (9th Cir. 1980)).

149

See id. One of the specifically problematic questions the prosecutor asked the defendant

on the stand was “Now, you know your wife can’t be made to testify against you, don’t you?” Id.

at 1221. The court expressed two concerns about this. First, it allowed a question without a demon-

stration that the defendant’s spouse made such a statement and that it was accurate. Id. at 1222.

Second, it permitted the jury to draw an adverse inference that because the privilege had been

claimed, they could assume had the wife testified it would not be favorable to the defendant. Id.

The court expressed concern this practice would allow the marital privilege to be undermined by

giving the prosecution an unfair advantage. Id.

150

See Todd Richmond & Corey Williams, Explainer: Prosecutor’s Questions to Rittenhouse

Anger Judge, ABC NEWS (Nov. 10, 2021, 9:10 PM),

https://abcnews.go.com/US/wireStory/prosecutors-questions-rittenhouse-draw-judges-anger-

81096096.

151

See id.

152

See id.

153

See id.

154

See id.

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the door open to this line of questioning in his earlier ruling, to which the

judge responded, “For me! Not for you!”

155

The judge’s anger here is not

surprising, as the prosecutor clearly referenced evidence that the judge had

previously excluded.

B. Invading the Province of the Jury

Over the years, I have seen attorneys ask one witness if they believe

another witness is lying after conflicting testimony. While it is appropriate

to explore whether one witness has motive to fabricate testimony,

156

it is not

appropriate to ask a witness during cross-examination to comment on the

truthfulness of another witness.

157

Allowing the witness to do so invades the

province the jury in determining the credibility of witnesses.

158

There is a

clear difference between establishing that one witness has different testi-

mony from another and asking a witness if another witness is “[l]ying, mak-

ing up or inventing” testimony.”

159

The latter moves beyond highlighting a

difference in testimony and instead puts the witness in the position of the

jury in determining whether another witness has engaged in deliberate or

intentional falsehoods.

160

When witnesses comment on each other’s credibility, it facilitates

improperly reductionist arguments at trial.

161

For example, when a prosecu-

tor asks a defendant whether an investigative officer is lying and the defend-

ant answers in the affirmative, the prosecutor can then suggest that, if the

155

Richmond, supra note 150.

156

See CHRISTOPHER B. MUELLER & LAIRD C. KIRKPATRICK, EVIDENCE 466 (3d ed. 2012)

(alleging that a witness has a motive to fabricate falls within the realm of impeachment of a witness

by establishing bias). “Bias is a catchall term describing attitudes, feelings or emotions of a witness

that might affect her testimony, leading her to be more or less favorable to the position of a party

for reasons other than the merits.” Id.

157

See United States v. Alcantara-Castillo, 788 F.3d 1186, 1190-91 (9th Cir. 2015) (first citing

United States v. Harrison, 585 F.3d 1155, 1158 (9th Cir. 2009); then citing United States v. Combs,

379 F.3d 564, 572 (9th Cir. 2004); and then citing United States v. Sanchez, 176 F.3d 1214, 1219-

20 (9th Cir. 1999)).

158

See Alcantara-Castillo, 788 F.3d at 1191.

159

See id. at 1193.

160

See id. It is also worth noting that this principle echoes the evidentiary rule that witnesses

cannot speculate through their testimony and must have personal knowledge of facts in order to

testify about them. See FED. R. EVID. 602.

161

See Austin Cline, Oversimplification and Exaggeration Fallacies, THOUGHTCO. (May 29,

2021), https://www.thoughtco.com/oversimplification-and-exaggeration-fallacies-3968441. Over-

simplification and exaggeration occur when actual causes of an event are reduced or multiplied to

the point where connections between causes and effects are blurred or buried. Id. In other words,

multiple causes are reduced to just one or a few (oversimplification), or a couple of causes are

multiplied into many (exaggeration). Id. Also known as the ‘reductive fallacy,’ oversimplification

is common.” Id.

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officer is telling the truth, then the defendant must be lying and his guilt has

been established.

162

This kind of argument can mislead the jury or misstate

the evidence by pitting the defendant against the law enforcement officer.

163

The fundamental question of a criminal trial is whether the defendant com-

mitted a crime, and it is “patently misleading to argue that the resolution of

this issue hinges upon the veracity of the [law enforcement witnesses.]”

164

The problems created by this line of questioning highlight the overall risk

discussed in this article—moving a trial away from an analysis of the actual

evidence and focusing instead on theatrics and emotion. When a prosecutor

argues that acquitting the defendant is tantamount to a finding that the officer

lied under oath, they make a wholly impermissible argument. In that case, a

jury could disregard the principle of reasonable doubt because they do not

want to call an officer a liar.

Cross-examination can also invade the province of the jury by as-

suming the ultimate conclusion of the case. For example, if a character wit-

ness offers testimony that a criminal defendant charged with drug dealing

has a reputation for being honest and truthful, it is impermissible to ask that

witness if their opinion would change if they knew the defendant was dis-

tributing drugs.

165

This is because an opinion of a witness that is elicited by

a question that assumes the central and ultimate issue of the case has limited

probative value.

166

One of the more controversial pretrial rulings in the Rittenhouse case

was an order by the judge requiring that the individuals who were shot be

identified through terms such as “complaining witness” or “decedent” rather

than “victims.”

167

The justification for this ruling is rooted in what was dis-

cussed earlier in this article—the use of the term “victim” presupposes a le-

gal conclusion, namely that the person was victimized by criminal action.

After all, the word “victim” is defined as, “a person harmed by a crime, tort,

or other wrong.”

168

This kind of pretrial motion is often common in cases

where the contested issue is whether the defendant’s conduct rises to a crime

162

See United States v. Richter, 826 F.2d 206, 209-10 (2d Cir. 1987) (finding prosecutor im-

properly suggested the resolution of the case hinged on the veracity of FBI agents rather than

whether the defendant was guilty of the offenses charged).

163

See id. at 209.

164

Id.

165

See United States v. Mason, 993 F.2d 406, 407-08 (4th Cir. 1993) (condemning use of

“guilt-assuming hypothetical questions asked of law character witnesses”).

166

See id. at 409.

167

See Becky Sullivan, Prosecutors Cannot Call Those Shot by Kyle Rittenhouse ‘victims.’

But ‘Looters’ is OK, NPR (Oct. 26, 2021, 7:02 PM),

https://www.npr.org/2021/10/26/1049458617/kyle-rittenhouse-victims-arsonists-looters-judge-

ruled.

168

See Victim, BLACK’S LAW DICTIONARY (9th ed. 2009).

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230 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXVII

(as opposed to a trial where everyone agrees a crime has occurred and is

instead focused on the identity of the perpetrator). The motion usually pro-

hibits law enforcement witnesses from referring to an individual as a victim,

though it should be noted that a prosecutor is often permitted to use the term

in closing arguments because, at closing, they assert that the crime has been

committed.

As illustrated throughout this section, allowing an officer to call

someone a victim is tantamount to that witness concluding that a crime oc-

curred, which is within the province of the jury. Moreover, the term is con-

sidered highly prejudicial when the defendant raises a defense of self-de-

fense.

169

When someone is referred to as a “victim,” it is implied that the

person was wronged by someone else. Allowing witnesses to plant that im-

age in the minds of a jury encourages the conclusion that the defendant

wronged that person. In a self-defense case, that subtle messaging unfairly

undermines the defense while bolstering the prosecution’s theory of the case.

The judge’s decision to bar the use of the word “victim” drew wide-

spread coverage and outrage.

170

It is possible that some of this outrage came

from a perception that the ruling was slanted, as defense attorneys were per-

mitted to call the men who were shot “looters” and “rioters” if there was

evidence to establish that they had engaged in that activity that night.

171

While this appears to create a double standard, it should be noted that calling

an individual a “victim” presupposes the occurrence of a crime, which only

the jury is entitled to conclude. On the other hand, calling an individual a

“looter” or “rioter” does not relate to the ultimate issue that must be deter-

mined by the jury.

C. Comments on a Defendant’s Right to Remain Silent

The foundation for the Court’s landmark Miranda decision was es-

tablished years earlier in Escobedo v. Illinois.

172

This case addressed a crim-

inal defendant’s rights to remain silent and to the assistance of counsel dur-

ing a custodial interrogation following an arrest.

173

In its decision, the Court

expressly noted its skepticism regarding law enforcement’s reliance on con-

fessions and its ability to undermine these constitutional protections:

169

See Julie Bosman & Dan Hinkel, Before Kyle Rittenhouse’s Murder Trial, a Debate Over

Terms Like ‘Victim’, NY TIMES (Nov. 19, 2021), https://www.nytimes.com/2021/10/27/us/kyle-

rittenhouse-trial-victims.html.

170

See id.

171

See id.

172

See Escobedo v. Illinois, 378 U.S. 478 (1964).

173

See id. at 490-91.

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We have learned the lesson of history, ancient and modern,

that a system of criminal law enforcement which comes to

depend on the ‘confession’ will, in the long run, be less re-

liable and more subject to abuses than a system which de-

pends on extrinsic evidence independently secured through

skillful investigation.

174

Two years later, these principles were bolstered in Miranda v. Ari-

zona, where the Court addressed the problem of “official overbearing.” Of-

ficial overbearing occurs when law enforcement takes advantage of a suspect

to get the individual to confess to a crime. Such conduct “undermines a de-

fendant’s constitutional rights by compelling him “to be a witness against

himself.”

175

To combat these concerns, the Court held that the prosecution

cannot use statements made by a suspect during a custodial interrogation un-

less it demonstrates the use of “procedural safeguards effective to secure the

privilege against self-incrimination.”

176

This ruling gave rise to the now-

famous Miranda warning, which advises a suspect in police custody of the

right to remain silent, that any statement made can be used against the sus-

pect, that they have a right to the presence of an attorney during questioning,

and that if they can’t afford an attorney, one will be appointed for them.

177

Following Miranda, a circuit split developed regarding whether a

prosecutor could cross-examine a defendant about his choice to remain silent

during a police interrogation.

178

The Court first addressed this split in United

States v. Hale, ruling that the probative value of pretrial, custodial silence

following a Miranda warning is outweighed by its prejudicial effect.

179

While the Court acknowledged that persistent silence in the face of an accu-

sation of wrongdoing has some probative value, it noted that a suspect’s de-

cision to remain silent during the emotional and confusing circumstances

following an arrest could be informed by many reasons. Where a person has

been advised of their right to remain silent, their doing so may be indicative

of a decision to rely on such a right and would “support an inference that the

explanatory testimony was a later fabrication.”

180

The Court expanded on these principles one year later in Doyle v.

Ohio.

181

Here, the Court acknowledged that silence at the time of arrest may

174

Id. at 488-89.

175

See Miranda v. Arizona, 384 U.S. 436, 442 (1966).

176

Id. at 444.

177

See id.

178

See United States v. Hale, 422 U.S. 171, 173 (1975).

179

See id.

180

See id. at 176-77.

181

See Doyle v. Ohio, 426 U.S. 610, 616 (1976).

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suggest that the suspect’s story was fabricated to “fit within the seams of the

State’s case as it was developed at pretrial hearings.”

182

The Court concluded

that because the state was now required to provide advisement of the right to

remain silent, every post-arrest silence is “insolubly ambiguous[.]”

183

And

while the Miranda warning does not contain an express assurance that si-

lence will be used against the suspect, the assurance is implicit in the warning

such that “it would be fundamentally unfair and a deprivation of due process

to allow the arrested person’s silence to be used to impeach an explanation

subsequently offered at trial.”

184

Notably, the Court refused to extend this protection to pre-arrest si-

lence in Jenkins v. Anderson.

185

In Jenkins, the defendant claimed self-de-

fense after killing someone during a knife fight and fleeing the scene of the

crime without informing police of what happened

186

The prosecution in clos-

ing argument noted that the defendant had waited at least two weeks before

reporting the stabbing to anyone.

187

The defendant later appealed his con-

viction, arguing that his prearrest silence could not be used against him as it

violated his Fifth Amendment rights.

188

In its opinion, the Court looked to

the evidentiary rationale that a witness could be impeached by their failure

to state a fact in circumstances where it would naturally have been as-

serted.

189

The Court distinguished this prearrest silence from that which was

at issue in Doyle v. Ohio, where defendant had been advised of his right to

remain silent by law enforcement.

190

Here, the Court noted that because no

government actor had taken action that might have induced the defendant’s

decision to remain silent, there was no constitutional violation embedded in

the state making evidentiary use of that silence.

191

This position was strengthened two years later in Fletcher v. Weir,

when the Court affirmed that the provisions of the Miranda warning, rather

than the arrest itself, activates the prohibition on the prosecution commenting

on the defendant’s silence.

192

Therefore, if police arrest a defendant but fail

to give Miranda warnings, and the person subsequently testifies at trial, the

prosecution can legitimately cross-examine them on their decision to

182

Id.

183

See id. at 617.

184

See id. at 618.

185

See Jenkins v. Anderson, 447 U.S. 231, 238-39 (1980).

186

See id. at 233.

187

See id. at 234.

188

See id. at 232.

189

See id. at 239.

190

See Doyle, 426 U.S 610 (1976).

191

See id. at 240.

192

See Fletcher v. Weir, 455 U.S. 603, 606-07 (1982).

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withhold their version of the incident from police when arrested. It is im-

portant to note that while Miranda prevents the prosecution from using a

defendant’s unwarned incriminating statements in its case in chief, the gov-

ernment may use statements made by a defendant in violation of Miranda

during cross-examination.

193

This line of cases could create a bizarre incentive structure for law

enforcement officers tasked with giving suspects Miranda warnings prior to

eliciting confessions. Escobedo highlighted that society should not value a

criminal justice system that emphasizes confessions over independent inves-

tigation, and this is part of why the right to remain silent is an important

right.

194

Miranda offered protection of this right by requiring that whenever

law enforcement questions a suspect in custody, they must provide certain

procedural warnings of the suspect’s rights. Under Hale and Doyle, the pros-

ecution loses the ability to question the suspect at trial about the decision to

remain silent after he has been properly Mirandized.

From a game-theory perspective,

195

a law enforcement officer is in-

centivized to make an educated guess about whether a given suspect is likely

to answer questions once read their rights. If the suspect is likely to do so,

then the warning should be given, so the statements are admissible. But, if

the suspect is likely to say something about the crime without making incul-

patory admissions, the police have an incentive under Fletcher v. Weir to not

Mirandize the defendant before questioning him. The defendant is then in a

trap where either the decision to answer the question or the decision to re-

main silent can be used against him. If he answers the un-Mirandized ques-

tions and subsequently testifies, the prosecution may cross-examine and im-

peach him on any inconsistencies. If he remains silent, on the other hand,

the prosecution may impeach him using the fact that he told the story for the

first time at trial.

In the Rittenhouse case, an allegation that the prosecutor commented

on the defendant’s invocation of his right to remain silent following his arrest

formed the basis of the defendant’s request for a mistrial.

196

In its cross-

examination of Rittenhouse, the prosecution attempted to show the defend-

ant was entirely honest on the stand and had tailored his testimony over the

193

See Harris v. New York, 401 U.S. 222, 224-26 (1971).

194

Escobedo v. Illinois, 378 U.S. 478, 488-89 (1964)..

195

“Game theory is a set of tools and a language for describing and predicting strategic behav-

ior.” Randal C. Picker, “An Introduction to Game Theory and the Law” (Coase-Sandor Institute

for Law & Economics Working Paper No. 22, 1994). Game theory posits that rational actors need

to worry about the actions of others and utilizes that interdependence to make strategic choices. Id.

196

See Amy Forliti & Scott Bauer, EXPLAINER: What’s Behind Rittenhouse Mistrial Re-

quests?, AP NEWS (Nov. 19, 2021), https://apnews.com/article/kyle-rittenhouse-trial-judge-di-

rected-verdict-788879e4deb6d4639adab573ee3ff753.

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course of the last year.

197

The defense objected, arguing that this line of

questioning amounted to a comment on the defendant’s right to remain si-

lent.

198

The judge warned the prosecutor that he was “right on the border-

line” and that it would be, “a grave constitutional violation for [him] to talk

about a defendant’s silence[.]”

199

Despite this warning, the judge again had

to admonish the prosecutor for engaging in a similar line of questioning.

200

The judge’s anger towards the prosecution highlights how serious this issue

is. Because judges do not want to punish a defendant for exercising their

right to remain silent, prosecutors should simply avoid mentioning any con-

duct that draws the jury’s attention to the fact that a particular defendant did

not speak to law enforcement after being arrested.

VI. CLOSING

Closing arguments represent the final opportunity for each side to

address the jury before it renders judgment on the case. Since it is critical to

take advantage of this opportunity to persuade the jury, it becomes tempting

to blur the ethical lines through an improperly theatrical closing. This sec-

tion will return to an examination of improper rhetoric—including the use of

religious, moral, or other inflammatory language. This section will also ad-

dress limitations on attacking the other side of the case—both counsel and

their witnesses—when an attorney attempts to persuade the jury that it

should side with their legal argument.

A. Use of Religious, Moral, and Other Inflammatory Rhetoric

It is hard to imagine a party winning a trial without making a closing

argument. A persuasive closing argument may help a litigator recover when

previous phases of the trial have gone poorly. Closing arguments are also

critical because empirical studies show they are easier for juries to remember

than trial testimony.

201

An effective closing argument must be persuasive. Aristotle argued

that there were three primary methods of persuasion—ethos (an ethical

197

See Libby Emmons, BREAKING: Judge Slams Prosecutors For Trying to Use Ritten-

house’s Right to Remain Silent Against Him, POST MILLENNIAL (Nov. 10, 2021), https://the-

postmillennial.com/judge-slams-prosecutors-for-trying-to-use-rittenhouses-right-to-remain-silent-

against-him.

198

See id.

199

Id.

200

See id.

201

See FREDERIC G. LEVIN, MIKE PAPANTONIO, & MARTIN LEVIN, CLOSING ARGUMENTS:

THE LAST BATTLE 4 (1

ed. 2003).

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appeal or appeal based on credibility), logos (a logical argument), and pathos

(an emotional argument).

202

Many of the legal rules which have been dis-

cussed in this article could be viewed as favoring logos, as they emphasize

that courtroom decisions must be made on the basis of the evidence educed

at trial.

203

“It is the hallmark of a fair and civilized justice system that ver-

dicts be based on reason, not emotion, revenge, or even sympathy.”

204

But,

as Aristotle noted, the power of emotion as a tool of persuasion primes this

as an area of potential conflict. The attorney who hopes to prevail is often

tempted to produce a theatrical display aimed at triggering an emotional re-

sponse in the jury, which may overshadow the evidence and governing law.

If we value the idea that verdicts are based on evidence rather than

emotion, lines must be drawn regarding the language used to distinguish be-

tween rhetorical flourish and impermissible emotional appeals. For instance,

religious and moral rhetoric specifically appeal to passion and prejudice ra-

ther than reason and the law.

205

Concern about the use of religious imagery

in arguments is reflected in United States v. Giry, where the First Circuit

considered whether statements made by the prosecutor prejudicially in-

flamed the jury.

206

The prosecutor’s “most egregious comment” was that the

defendant’s denial of the specific intent to import cocaine, “[s]ounds like

Peter who for the third time denied Christ[.]”

207

The court ruled that this

constituted an irrelevant and inflammatory appeal to the jurors’ private reli-

gious beliefs and “[s]uch comments warrant special condemnation when ut-

tered by the government’s attorney, whose duty is as much ‘to refrain from

improper methods calculated to produce a conviction as it is to use every

legitimate means to bring about a just one.’”

208

While ultimately finding the

trial judge gave a sufficiently strong curative instruction to solve the prob-

lem, the court called this statement “deliberate,” “wholly unprovoked,” and

202

See Krista C. McCormack, Ethos, Pathos, and Logos: The Benefits of Aristotelian Rhetoric

in the Courtroom, 7 WASH. U. JURIS. REV. 131, 132 (2014).

203

See Old Chief v. United States, 519 U.S. 172, 180 (1997) (noting evidence can be relevant,

but still be inadmissible because it has the tendency to “lure the factfinder into declaring guilt on a

ground different from proof specific to the offense charged[,]” including an emotional basis).

204

Le v. Mullin, 311 F.3d 1002, 1015 (10th Cir. 2002).

205

See Cunningham v. Zant, 928 F.2d 1006, 1020 (11th Cir. 1991) (identifying as outrageous

comments by a prosecutor which included, “numerous appeals to religious symbols and beliefs, at

one point even drawing an analogy to Judas Iscariot.”)

206

See United States v. Giry, 818 F.2d 120, 132-34 (1st Cir. 1987).

207

See Giry, 818 F.2d at 132. The Bible relays different accounts of Peter, a disciple of Christ,

denying knowing him on three different occasions when questioned by authorities, following

Christ’s arrest. Matthew 26:33-35, Mark 14:29-31, Luke 22:33-34, and John 18:15-27.

208

See Giry, 818 F.2d at 133 (quoting Berger v. United States, 295 U.S. 78, 88 (1935)).

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236 JOURNAL OF TRIAL & APPELLATE ADVOCACY [Vol. XXVII

of such “complete irrelevance” that “its sole purpose was to inflame the

jury’s passions.”

209

It should be noted that, similar to prohibitions on religious appeals,

the Supreme Court has found it improper to use language that dehumanizes

the other side.

210

There is an additional prohibition on imposing certain

moral imperatives on a jury in criminal cases. While it is not per se improper

for a prosecutor to ask the jury to act as the conscience of the community, it

becomes improper to ask the jury to convict the defendant in order “to protect

community values, preserve civil order, or deter future lawbreaking.”

211

In the civil context, wrongful death cases are easy targets for an

overly emotional closing argument by the plaintiff’s attorney.

212

In Draper

v. Airco, Inc., the Third Circuit found that while the family of the victim was

“entitled to have someone speak with eloquence and compassion for their

cause[,]” a plea of pure passion must be restrained to preclude a blatant ap-

peal to bias and prejudice.

213

The court specifically noted that the ethics

rules and constraints from case law protect against this danger.

214

Plaintiff’s

counsel in Draper committed many of the errors which have been discussed

in this article, including asserting his own personal opinion as to the justness

of a client’s cause, referring to facts not in evidence, and, as will be dis-

cussed, making “several prejudicial, vituperative and insulting references to

opposing counsel.”

215

The court ultimately cited the attorney’s inflammatory

and prejudicial rhetoric as the basis for overturning the judgement in his cli-

ent’s favor.

216

In remanding the matter for a new trial, the court reasoned

that the closing argument of the plaintiff “was so constantly and effectively

addressed to the prejudices of the jury” that a new trial was necessary.

217

B. Attacking the Other Side

When witnesses offer conflicting testimony, an attorney must con-

vince the jury that they should credit the testimony of the witnesses who

209

See id. at 134.

210

See Darden v. Wainwright, 477 U.S. 168, 180 (1986) (condemning a closing argument

where the prosecutor used the word “animal” and made, “several comments reflecting an emotional

reaction to the case.”

211

See United States v. Solivan, 937 F.2d 1146, 1151, 1153 (6th Cir. 1991) (quoting United

States v. Monaghan, 741 F.2d 1434, 1441 (D.C. Cir. 1984)); see also Henderson v. United States,

218 F.2d 14, 19-20 (6th Cir. 1955).

212

See Draper v. Airco, Inc., 580 F.2d 91, 94 (3d Cir. 1978).

213

See id. at 95.

214

See id.

215

See id.

216

See id.

217

See Draper, 580 F.2d at 96-97.

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support their side and disregard the testimony of opposing witnesses. Attor-

neys are given reasonable latitude in fashioning closing arguments, including

making reasonable inferences based on the evidence.

218

Where a case “es-

sentially reduces to which of two conflicting stories is true, it may be reason-

able to infer, and hence to argue, that one of the two sides is lying.”

219

How-

ever, as a general rule, evidence of personal character or a character trait is

not admissible to prove that on a particular occasion the witness acted in

accordance with that character.

220

While there are specific means of im-

peaching a witness such as offering evidence of their reputation for truthful-

ness,

221

bias,

222

or relevant prior convictions,

223

an attorney does not have the

right to make a general attack on a witness’s character.

224

The Rittenhouse case demonstrated the fine line an attorney must

observe in cross-examining a witness for perceived bias.

225

Here, the prose-

cutor sought to impeach Drew Hernandez, a journalist who had recorded

video of one of the fatal shootings, by demonstrating bias based on the fact

that his employer was a platform for far-right political views.

226

The prose-

cutor was permitted to show that, minutes after posting the video on Twitter,

the witness had tweeted a comment noting that, in his view, the shooting by

Rittenhouse was a measure taken by an armed citizen defending a car deal-

ership.

227

This strategy of cross examination demonstrated the witness’s bias

in that he appeared to be operating from a perspective that Mr. Rittenhouse

was justified in his conduct. The witness’s predisposition for Mr. Ritten-

house’s actions is something the jury would need to know to evaluate the

strength of this testimony. However, when the prosecutor attempted to ask

about the political orientation of the witness’s employer, the judge refused

218

See United States v. Molina, 934 F.2d 1440, 1445 (9th Cir. 1991).

219

See id.

220

See FED. R. EVID. 404

221

See FED. R. EVID. 608

222

See Kirkpatrick, supra note 156.

223

See FED R. EVID. 609

224

See United States v. Lindemann, 85 F.3d 1232, 1243 (7th Cir. 1996) (outlining five ac-

ceptable methods of attacking the credibility of a witness’s testimony). The five methods are as

follows: 1) attacking their character for truthfulness; 2) demonstrating that prior to trial the witness

made statements inconsistent with their testimony; 3) showing the witness is biased; 4) showing a

default in capacity to perceive, recall or relate the event about which they are testifying; and 5)

contradicting the substance of the witness’s testimony. Id. (citing GOLD, 27 FED. PRAC. & PROC.

EVID. § 6094 (2d ed.)).

225

See Robert Mackey, Rittenhouse Trial Judge Blocks Prosecutor From Asking if Far-Right

Videographer is Biased, THE INTERCEPT (Nov. 11, 2021), https://theintercept.com/2021/11/11/rit-

tenhouse-trial-judge-blocks-prosecutor-asking-far-right-videographer-biased/.

226

See id.

227

See id.

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to allow it saying “this is not a political trial.”

228

The judge’s refusal demon-

strates the distinction between cross-examining a witness for bias and at-

tempting to bring out a fact about the witness, such as their political affilia-

tion, that may taint how certain jurors view them.

When litigating a case, it is also critical that attorneys maintain their

professionalism. The Preamble to the Rules of Professional Conduct notes

that “[a] lawyer should demonstrate respect for the legal system and for those

who serve it, including judges, other lawyers, and public officials.”

229

This

value of professionalism, embedded in ethical rules, is also reinforced by

case law. The prohibition on personal attacks “is but a part of the larger duty

of counsel to avoid acrimony in relations with opposing counsel during trial

and confine argument to record evidence. It is firmly established that the

lawyer should abstain from any allusion to the personal peculiarities and id-

iosyncrasies of opposing counsel.”

230

An overly theatrical approach to litigation emerges when lawyers

turn the focus to themselves and make derogatory comments about each

other. For example, in United States v. Young,

231

the defense attorney in clos-

ing argued that his client had been unfairly prosecuted; that throughout the

trial, the prosecutor had poisoned the jurors’ minds against his client un-

fairly; that the prosecutor had behaved reprehensibly; and no one in the

courtroom, including the prosecutor, believed that his client intended to de-

fraud anyone.

232

The appeal focused on the prosecutor’s comment regarding

his own belief in the defendant’s guilt during his rebuttal closing.

233

While

acknowledging this point, the Court noted it is incumbent on all attorneys to

confine their arguments within proper bounds and that the defense attorney

was also prohibited from interjecting his personal beliefs into the presenta-

tion.

234

The Court took particular issue with the defense attorney’s “un-

founded and inflammatory attacks” on the opposing side, writing, “[t]he kind

of advocacy shown by this record has no place in the administration of justice

and should neither be permitted nor rewarded[.]”

235

The Court recognized a

trial doesn’t always follow a script and, occasionally, in the heat of the mo-

ment problematic remarks are made.

236

This case nevertheless highlights the

228

See id.

229

See MODEL RULES OF PRO. CONDUCT pmbl. (AM. BAR ASS’N 1983)

230

United States v. Young, 470 U.S. 1, 9 (1985) (internal citations omitted).

231

470 U.S. 1 (1985)

232

See id. at 4.

233

See id. at 6.

234

See Young, 470 U.S. at 8 (citing Sacher v. United States, 343 U.S. 1, 8 (1952)).

235

See id. at 9.

236

See id. at 10 (first citing Geders v. United States, 425 U.S. 80, 86 (1976); and then citing

Dunlop v. United States, 165 U.S. 486, 498 (1897)).

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2022] Give ‘Em the Ol’ Razzle Dazzle 239

importance of litigators acting professionally at all time and not making their

battle a personal crusade against the integrity or character of opposing coun-

sel.

VII. CONCLUSION

Litigators are naturally competitive people who want their own side

to prevail in the courtroom. This may arise out of a mere desire to win or a

desire to improve their public perception as attorneys. Many, if not most,

attorneys, also believe in the cause they are advancing in the courtroom.

Each of these impulses creates a drive to win, and to prevail, an attorney

must convince a jury of twelve laypeople that their side is the right one, and

that the jury should care enough about the correctness of this position to de-

liver a verdict for their client. This creates an inherent theatrical setting for

trials and, in an effort to win over the jury, the lawyer often becomes the

actor who wants to put on the performance of a lifetime. On the other side

of this equation is a judicial system that seeks the truth. That quest for truth

requires the jury to remain focused on the evidence before it and to make

reasoned and logical judgments from that evidence, rather than falling prey

to overly emotional appeals, prejudice, and bias.

This article has highlighted the dangers that emerge at each stage of

a trial when the proceeding becomes overly theatrical. As has been shown,

this typically occurs when the focus of the attorneys and the jury shifts from

the evidence itself to the performance and conduct of the attorneys. Guard-

rails—both ethical and constitutional—exist at each of these phases to pre-

vent such theatrics; but these safeguards are only effective to the extent they

are known, respected, and strictly enforced by the court. A trial attorney’s

performance will naturally contain theatrical elements due to the inherent

role that emotion plays in persuasion. But understanding the limits of emo-

tive advocacy allows an attorney to maintain their ability to persuade others,

while upholding the integrity of a system that aims to discover the truth.