criminal-law evidence rules-of-court professional-ethics criminal-procedure
Can a lawyer subject the court to a (temporary) ruse for a legitimate purpose?
<p>This question is about the legality of a possible defence tactic that might be used in a criminal trial.  It is a variation on things you see in lawyer movies fairly commonly.  Suppose that a criminal trial occurs, and the defendant is not already in custody when the matter is heard (e.g., it proceeds by summons, or else he was out on bail).  There is a witness to the crime and it is expected that she will identify the defendant in court as the perpetrator of the crime.</p>

<p>Now, suppose that the defence lawyer has reason to believe that this witness is actually not able to genuinely identify the defendant (as distinct from someone who looks a bit like him), but expects that the witness wants to assist the prosecution, and so she will nevertheless confidently point to whoever is in the defendant's chair and say that she is certain he is the perpetrator.  So the defence lawyer attends court with a person who looks like the defendant, but is not the defendant.  The lawyer can prove that this pretend-defendant was nowhere near the crime (e.g., he was overseas at the time).  He sits this pretend-defendant in the defendant's chair and proceeds with the matter roughly as normal (while taking any necessary instructions from the actual defendant remotely by some surreptitious means).  He is careful not to explicitly say that this is the defendant, but he acts in a manner that ensures that the judge and prosecutor will assume that this is the defendant.</p>

<p>Suppose now that the prosecution witness testifies, and as expected, she identifies this pretend-defendant as the perpetrator of the crime, and says that she saw him clearly, and she is absolutely certain it is him.  The defence lawyer keeps questioning this, but she is resolute.  At this point the lawyer reveals the charade, thus destroying the testimony of the witness and exposing her as either dishonest, or at least unreliable.  He brings in the real defendant for the remainder of the proceedings.</p>

<p>Now, obviously this is a matter where the defence lawyer has perpetrated a ruse on the court, and has thereby misled the court, albeit temporarily.  However, this is done in the pursuit of a legitimate purpose --- namely, to test the evidence of a prosecution witness and expose the unreliability of that witness.  Also, to be clear, the defence lawyer will reveal the true defendant at this point in the trial regardless of the witness's testimony.  If challenged on this, the lawyer could potentially argue that this kind of temporary ruse does not really constitute "misleading the court", since he will ultimately reveal the true defendant, though that might be a weak argument, since there is certainly a temporary misleading occurring in the ruse.</p>

<p><strong>My questions:</strong> Firstly, is there any practical impediment that would make it impossible to implement this tactic?  Assuming it is possible, what (if any) legal impediments would there be to using this tactic in a criminal matter?  In particular, would the defence lawyer (and possibly also the defendant) be exposed to legal danger for misleading the court?  <em>Is there any case law where something like this has occurred</em> (i.e., lawyer misleading court temporarily in order to test evidence of opponent)?</p>

<p><strong>Note:</strong> I have not specified a jurisdiction for this question, but I am interested in the answer in any Western jurisdiction.  If the answers depends on jurisdiction, then it would be interesting to know whether this is something that would generally be prohibited.  I am aware that there is a large body of case law on the legality of ruses by police against suspects, but I am not aware of any case law on ruses <em>against the court</em> by a lawyer.</p>

<hr>

<p><strong>Update:</strong> For what it's worth, this exact tactic was just used by Saul Goodman in an <a href="https://www.youtube.com/watch?v=YCcq2BkxiaE" rel="nofollow noreferrer">episode of <em>Better Call Saul</em></a>.  In that show, the actual defendent is seated in the gallery of the courtroom with the other spectators, and a similar-looking person is sat at the defendent's table.  The result in the episode was a mistrial, and a dressing down to the lawyer from the judge, but no other sanction.</p>

<p>It's happened before in real life.</p>

<p><a href="https://www.nytimes.com/1994/07/29/us/at-the-bar-defense-lawyer-turns-the-tables-on-the-prosecutors-but-pays-a-price.html" rel="noreferrer">Here is a 1994 article</a> describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom.</p>

<p>After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules.</p>

<p>From the article:</p>

<blockquote>
  <p>The dissent said Mr. Sotomayor's intent was only to show the
  unreliability of the prosecution's witness. Moreover, seating a client
  at counsel's table is customary but not required. Nor is a lawyer
  obliged [...] to help a witness make an identification.</p>
</blockquote>

<p><a href="https://law.stackexchange.com/q/49794">Also, here is a similar but not duplicate question.</a></p>

<p>In the U.S., pretty much the only circumstance in which a proceeding like the one you contemplate could occur without the criminal defendant present physically in the courtroom would be one where the criminal defendant was physically present when the trial started (say on the morning of day 1) and then failed to return after a break in the proceedings without good cause. So, the trier of fact will have seen the defendant in court already.</p>

<p>Pro-Tip: In the real world, criminal defendants who abscond without good cause (e.g. a heart attack or being kidnapped), mid-trial, are almost always convicted even in what might otherwise be marginal cases on the issue of guilt or innocence. So, not showing up is not a good strategy for any criminal defendant who doesn't plan on being convicted and being a fugitive from justice.</p>

<blockquote>
  <p>He sits this pretend-defendant in the defendant's chair and proceeds
  with the matter roughly as normal (while taking any necessary
  instructions from the actual defendant remotely by some surreptitious
  means).</p>
</blockquote>

<p>No U.S. court would allow a defense counsel to do this. In general, only lawyers and clients and legal staff are allowed to be in front of the bar between the judge and the audience in a courtroom and this tends to be rather strictly enforced. </p>

<p>The defense could conceivably ask for permission for the defendant to not be sitting at the defense table (either outside the courtroom or in the audience section) and for permission for the defendant to not be forced to war identifiable garb (e.g. a prison jumpsuit) when the witness came in (the clothing request is routinely granted), in advance of the witness's testimony, if this was a concern. The court might grant that request, although it would rarely be an abuse of discretion reversible on appeal to deny a request like that. But, deception would not be permitted.</p>

<p>The better approach to handling this would be to take the deposition of the witness prior to trial, either using a photo lineup with the defendant not present, or a physical line up, arranged by the defense counsel, and then to use the testimony of the witness in the deposition to impeach the identification testimony given by the witness at trial.</p>

<p>There are also some evidence rules with constitutional dimensions related to witness identifications of defendants in criminal cases prior to trial that limit the kind of conduct you are worried about preventing. Often the main concern is that an out of court witness identification will be tainted and taint the future testimony of the witness, if certain improper defendant identification procedures are used prior to trial with a potential witness. If that happens, the witness's testimony (and testimony from anyone about the out of court identification of the defendant by that witness) may be excluded from evidence at trial in many cases. (This is the subject of a very large volume of case law that I am only summarizing in the most general terms and is probably not "precisely" accurate.)</p>

<p>I don't know how this would play out in non-U.S. jurisdictions but very much doubt that it would be permitted in most of them. </p>

<p>A true jury trial of the type assumed by this question only exists in common law jurisdictions whose legal system is based on English law. The relevant legal practices on this particular issue in common law jurisdictions are very similar to each other. </p>

<p>Many civil law jurisdictions (i.e. countries with laws based on continental European law rather than English law) such as Egypt, actually require criminal defendants to be in a physical cage in the courtroom during criminal trials in most cases. Also, what are called "juries" in most civil law jurisdictions in criminal cases are closer to panels of judges, some of which are professional judges and some of which are non-professional lay judges, than they are to common law juries. But, this structure would make that kind of tactic impossible to use. </p>

<h2>It’s against the law</h2>

<p>For example, form the New South Wales <a href="https://www.legislation.nsw.gov.au/inforce/5a7fbed4-700d-45da-84dc-b6f6b0fb2870/2015-243.pdf" rel="nofollow noreferrer">Legal Profession Uniform Conduct (Barristers) Rules 2015
</a></p>

<blockquote>
  <p><strong>24</strong> A barrister must not deceive or knowingly or recklessly mislead the court.</p>
</blockquote>

<p>Barristers who break the law become ex-barristers.</p>

<p>I recall this tactic being used in a Perry Mason novel. But even with the flexibility with the law those books had, Mason had the defendant in court although not at the usual place, and had secured the permission of the Judge in advance for this. </p>

<p>I think that deceiving the Court, even briefly and for arguably legitimate reasons, will not go well. Deceiving the witness with the permission of the court might work, but the idea of a deposition with a proper lineup is probably better. Failing that, a lineup in the court might possibly work, with proper preparation, including judicial permission.</p>

<p>The witness would not be regarded as dishonest - they would be viewed as having been tricked. The defendant and defence team would be viewed as dishonest, and could be considered to have fabricated evidence.</p>

<p>The defendant could be regarded as not having attended their trial, and the defence lawyers (since you're spelling "defence" the same way as I do I'll make a leap and say that would apply to both the barrister and solicitor) could be found in contempt of court and prosecuted for perverting the course of justice.</p>

<p>The person who appeared as the defendant could (unless exceptional circumstances exist - for example duress) also be charged with perverting the course of justice.</p>

<p><a href="https://en.wikipedia.org/wiki/Perverting_the_course_of_justice" rel="nofollow noreferrer">Perverting the course of justice carries a maximum sentence of life imprisonment</a>.</p>

<p>There is no legitimate purpose here, and trying something like this would not help the defendant's case. Any defence lawyers involved would not be lawyers for long.</p>

<p>USA answer, may be similar for Common Law Jurisdictions in General:</p>

<p>Generally no, there is no method for this to be practical.  There is trial in absentia which is when the defendant does not show up for a scheduled trial but there is sufficient evidence that it does not matter (remember, the defense does not need to testify at all or call witnesses at all).  If he's going to run and the Prosecutor doesn't need to press the identification issue, the trial is still good to go and may proceed.</p>

<p>Rather, the defendant has the right to examine all evidence against him and question the evidence (including witness testimony) so the Defense should look to show reasons that the defendant was mistaken by the witness.  For example,  the police botched a criminal line up OR the witness had a way of mistaking the defendant.  My Cousin Vinny's court scenes were built on the defendants being mistaken for the guilty party by three eyewitnesses.  Vinny immediately and correctly identifies why they are not reliable and just mistaken (and it should be pointed out,  none of them are out and out lying.  The first under reported the timeline between the defendants entering and leaving the store (5 minutes) but in the interim performed a task that meant it was over 3 times longer than his initial estimate about when the defendants entered the store and when they left (and he admits in direct he didn't see their faces when they left). The second witness had terrible vision and her prescription hadn't been checked in years (it was demonstrated that she couldn't see identifiable details at half the distance she claimed the defendants were at.  The final witness had a lot of obstructions and a very dirty window blocking him from a clear view of the defendants).  Eye witness testimony is notoriously unreliable and these kind of things happen at all times.   Of course, this doesn't crack the case, and Vinny has to figure out how to solve the issue with all three witnesses clearly having eyes on a very distinct car... which is epic in it's own right.</p>
