Trial Tactics and Misconduct

Open Tactics vs. Silent Tactics at Trial

• Distinction between open and silent tactics at trial.
• Emphasis on the pretrial process in previous lectures, but need to address trials as well.
• Will revisit trials when discussing prosecutors later in the semester.

Open Tactics

• Definition: Conduct or comments made by lawyers in front of everyone.
• Opposing counsel can witness and object.
• Judge can take remedial measures or impose sanctions.

Silent Tactics

• Definition: Actions taken by lawyers in the presence of the jury but behind the backs of opposing counsel and the judge.
• Subtlety: Can be very subtle, and their objectionability can be debatable.
• Rules: Subject to rules, such as Model Rule 8.4(d).

Model Rule 8.4(d)

• Addresses conduct prejudicial to the administration of justice.
• Standard: Very broad, encompassing anything argued to be prejudicial.
• Interpretation: Lawyers must carefully predict if their conduct could be interpreted as prejudicial.

Model Rule 3.5(b)

• Prohibits lawyers from engaging in conduct intended to disrupt the tribunal.
• Scope: Interpreted broadly, not necessarily limited.
• Examples: Applies to attempts by lawyers to lead witnesses into making mistakes during testimony, despite the lawyer's role in cross-examination.

Enforcement and Interesting Issues

• Enforcement: Although there are disciplinary cases related to conduct at trial, most issues are handled by judges using their contempt power.
• Interesting Issues: Relate to the use of speech or words to address the jury.

Model Rule 3.4(e)

• Regulates the use of speech or words to address the jury.
• Further Discussion: Will be looked at in more detail later in the course.

Conclusion

• Further Discussion: Issues related to conduct during trials will be picked up again when discussing prosecutors and criminal defense lawyers addressing the jury during criminal trials.