Evidence and ethics: Litigating in the shadows of the rules

Fordham Law Review

Volumn 76, Issue 3, 2007, Pages 1641-1673

  Colquitt, Joseph A ^a,b  

^a UNIVERSITY OF ALABAMA   (United States)

^b State of Alabama   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 39349099010     PISSN: 0015704X     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (193)

1. Resolution XXXIII, in 2 David Hoffman, A Course of Legal Study 765 (Baltimore, Joseph Neal, 2d ed. 1836).
2. See, e.g., Carol Rice Andrews, Standards of Conduct for Lawyers: An 800-Year Evolution, 57 SMU L. Rev. 1385, 1448 (2004) ("By 2000, most states had adopted some form of the Model Rules ...."). The American Bar Association (ABA) first promulgated standards in 1908. Id. at 1385. Its Canon of Ethics was drafted from the 1887 Alabama State Bar's Code of Ethics. Id.
3. See, e.g., Monroe H. Freedman & Abbe Smith, Understanding Lawyer's Ethics 296 (2d ed. 2002) (noting the inadequacy of rules of ethics and restatements "to establish rules of ethical conduct that are adequate to the special role [of prosecutors] that they so clearly recognize"); Bruce A. Green, Prosecutorial Ethics as Usual, 2003 U. Ill. L. Rev. 1573, 1596 (noting that "[t]he existing provisions of Model Rule 3.8 address five aspects of prosecutorial conduct, but... they impose relatively little restraint on prosecutors and leave much troublesome conduct unaddressed").
4. See, e.g., Freedman & Smith, supra note 3, at 300 ("[Conscientious prosecutors do not put the destructive engine of the criminal process into motion unless they are satisfied beyond a reasonable doubt that the accused is guilty."); Green, supra note 3, at 1588 ("[P]rosecutors are expected to bring prosecutions only when the guilt of the accused is sufficiently certain."); cf. Model Rules of Prof 1 Conduct R. 3.8(a) (2002) ("The prosecutor in a criminal case shall: (a) refrain from prosecuting a charge that the prosecutor knows is not supported by probable cause . ...").
5. See, e.g., Freedman & Smith, supra note 3, at 294; see also R. Michael Cassidy, Character and Context: What Virtue Theory Can Teach Us About a Prosecutor's Ethical Duty to "Seek Justice, " 82 Notre Dame L. Rev. 635, 636 (2006);
6. Monroe H. Freedman, Professional Responsibility of the Criminal Defense Lawyer: The Three Hardest Questions, 64 Mich. L. Rev. 1469, 1469 (1966);
7. Green, supra note 3, at 1596 (stating that "a prosecutor has a responsibility not to mislead the fact finder by casting doubt on the credibility of testimony the prosecutor knows to be truthful").
8. See, e.g., L. Timothy Perrin, The Perplexing Problem of Client Perjury, 76 Fordham L. Rev. 1707, 1710 (2007) ("It is difficult to imagine a more important topic at the very intersection of ethics and evidence than the ethical obligations of criminal defense lawyers when confronted with false testimony from their own client.").
9. See Wilson v. State, 690 So. 2d 449 (Ala. Crim. App. 1995). In the interest of full disclosure, I report that prior to the defendant's trial, I was retained by the defense attorneys to brief them on several anticipated legal issues. I did not represent, counsel, or confer with the defendant in any way; I did not attend the trial; and I never directly or indirectly heard any confidential client communications. I disclose no defense secrets; in fact, I was not exposed to such secrets. In effect, I viewed my role as a "law consultant." See Tanina Rostain, The Emergence of "Law Consultants," 75 Fordham L. Rev. 1397, 1398 (2006) (defining "law consultants," and noting that they decouple their services from the representation of clients).
10. These facts closely track the actual facts from which the scenario was developed. The interracial nature of several adulterous relationships was seen by some observers as a potentially pernicious factor in the Wilson case. See, e.g., Jim Schutze, By Two and Two 56, 254 (1995) (characterizing one of the witnesses, an African-American, who had engaged in extramarital affairs with the defendant, as the State's "biggest gun in the entire trial"); id. at 258 (reciting cross-examination of the witness by a defense attorney: "Does it offend you that [the prosecutor] brought you here all the way from California because he thinks it's important for the jury to see that you are black?"). Although the Schutze book is a true-crime novel, it does provide support for certain factual and procedural aspects of the trial that otherwise are difficult to document at this late date other than by personal memories. Other writers have noted the use of race by attorneys. See, e.g., Aviva Orenstein, Special Issues Raised by Rape Trials, 76 Fordham L. Rev. 1585, 1587 (2007) ("[P]laying upon prejudices [of race or gender bias], particularly those of the American juror, is the trial attorney's bread and butter.").
11. See State v. Alberts, 722 N.W.2d 402 (Iowa 2006); State v. Baker, 679 N.W.2d 7 (Iowa 2004). The facts were modified or embellished as necessary to make the issues in Scenario 2 mirror the issues in Scenario 1.
12. The interracial factor is incorporated to mirror closely Scenario 1, which essentially is drawn from the actual facts of the Wilson case. Other characteristics, such as socioeconomic factors, extensive tattoos, or body piercings could be substituted. The inclusion of such factors is not intended to offend, but to inject a factor that might prejudice a litigant in the minds of some jurors. The defense in the Wilson case argued exactly that point. See supra note 8.
13. See, e.g., People v. Woods, 828 N.E.2d 247, 256 (Ill. 2005).
14. See, e.g., id.; State v. Stevens, 153 P.3d 903, 906 (Wash. Ct. App. 2007) (holding that, "once a defendant enters into a stipulation, he or she waives the right to require the government to prove its case on the stipulated element").
15. See, e.g., Old Chief v. United States, 519 U.S. 172, 186 (1997) ("Old Chiefs proffered admission would, in fact, have been not merely relevant but seemingly conclusive evidence of the element."); Woods, 828 N.E.2d at 256.
16. See, e.g., In re Estate of Moss, 248 N.E.2d 513, 516 (Ill. App. Ct. 1969); 1 Christopher B. Mueller & Laird C. Kirkpatrick, Federal Evidence § 4:17, at 675 (3d ed. 2007) ("Stipulations can be a promising way to eliminate unnecessary risks of prejudice.").
17. See, e.g., United States v. Washington, 705 F.2d 489, 498 (D.C. Cir. 1983) (per curiam) (noting that the proffered stipulation of identity "need not have been accepted by the government"); Espinal v. Arias, 916 A.2d 1081, 1086-87 (N.J. Super. Ct. App. Div. 2007) (holding that the trial court erred by requiring a party "to effectively stipulate to its own expert's credentials").
18. Old Chief, 519 U.S. at 187 (accepting as "unquestionably true" a lower court's observation that a stipulation might '"rob the evidence of much of its fair and legitimate weight'" (quoting Dunning v. Maine Cent. R.R. Co., 39 A. 352, 356 (Me. 1897)). The Court held that "[a] syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it." Id. at 189; see also Washington, 705 F.2d at 498-99.
19. Washington, 705 F.2d at 499; see also State v. Francis, 145 P.3d 48, 65 (Kan. 2006) (noting that "an offer to stipulate by either party to a criminal action need not be accepted by the other").
20. See, e.g., Old Chief, 519 U.S. at 186-87 (recognizing "the familiar, standard rule that the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it," but requiring prosecutors to accept certain stipulations addressing prior criminal convictions); United States v. McCourt, 468 F.3d 1088 (8th Cir. 2006) (holding that the defendant's stipulation to the content of child pornography images did not prevent the prosecution from introducing a number of the video clips into evidence); United States v. Walker, 428 F.3d 1165, 1168 (8th Cir. 2005) ("Old Chief explicitly reaffirmed the rule that under most circumstances the prosecution is entitled to prove its case as it sees fit, and a criminal defendant may not 'stipulate or admit his way out' of the full evidentiary force of the case against him." (quoting Old Chief, 519 U.S. at 186)); Franklin v. State, No. SC04-1267, 2007 WL 1774414, at *11 (Fla. June 21, 2007) (upholding the trial court's rejection of the defense's offer to stipulate prior offenses in a capital murder sentencing proceeding, and permitting the prosecution to present certain details of those convictions through the testimony of witnesses); Francis, 145 P.3d at 65 (noting that "an offer to stipulate by either party to a criminal action need not be accepted by the other").
21. See, e.g., People v. Buck, 838 N.E.2d 187, 200 (Ill. App. Ct. 2005) ("[W]hile the prosecution is not obligated to prove motive, the State may introduce evidence that tends to show that an accused has a motive for killing the deceased."); Gawn v. State, 7 Ohio Cir. Dec. 19, 25 (1896) ("[T]he question of motive necessarily forces itself upon the mind in the investigation of every alleged criminal act.").
22. See, e.g., People v. Thornton, 161 P.3d 3, 38 (Cal. 2007) (discussing the trial court's instruction in a capital murder prosecution that '"[m]otive is not an element of the crime charged and need not be shown'" (quoting Cal. Jury Instr.-Crim. 2.51 (5th ed. 1988))); Belcher v. State, 961 So. 2d 239, 249 (Fla. 2007) (noting that "motive is not a required element of first-degree murder"); Commonwealth v. Colon, 866 N.E.2d 412, 428 n.17 (Mass. 2007) ("The jury need not have found any motive on the part of the defendant in order to convict him of murder in the first degree."); State v. Wyant, 597 N.E.2d 450, 453 (Ohio 1992) ("Motive, in criminal law, is not an element of the crime.").
23. See, e.g., United States v. Russell, 971 F.2d 1098, 1106-07 (4th Cir. 1992) (upholding the admission of extramarital sexual affairs evidence, and opining that the prior bad acts exceptions "are not to be construed narrowly"); People v. Smith, 203 P. 816, 821 (Cal. Dist. Ct. App. 1921) ("No rule is more firmly established than that, upon the trial for murder of husband or wife, evidence tending to show illicit relations of the accused with another is admissible to show lack of love and affection for the defendant's lawful spouse."); Givens v. State, 546 S.E.2d 509, 512 (Ga. 2001) (holding that evidence of a "close relationship" between defendant and a man was relevant to the homicide and therefore admissible); Andrew v. State, 164 P.3d 176, 191 (Okla. Crim. App. 2007) (upholding evidence of defendant's extramarital sexual affairs as "relevant to prove motive"); Commonwealth v. Heller, 87 A.2d 287,289-90 (Pa. 1952) (approving the use of evidence of adultery to show a motive for murder); State v. Johnson, 743 S.W.2d 154, 158 (Tenn. 1987) (upholding admission of evidence of defendant's extramarital affair as tending "to bear upon appellant's possible motive for the homicide and his relationship with the victim"); Reaves v. State, 970 S.W.2d 111, 119 (Tex. App. 1998) (finding "within the 'zone of reasonable disagreement'" and therefore upholding the trial court's ruling that evidence of the defendant's extramarital affair was admissible (quoting Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1991)); Cantrell v. Commonwealth, 373 S.E.2d 328, 337 (Va. Ct. App. 1988) (upholding the admission of sexual relationship evidence as "probative of a motive for the murder"). Even evidence of conduct subsequent to the murder may be admissible. See, e.g., People v. Branion, 265 N.E.2d 1, 4-5 (Ill. 1970) (upholding the admission of testimony about the defendant's visit to an alleged paramour's apartment the day after the homicide "because it tended to prove motive"); State v. Booker, 434 P.2d 801, 807-08 (Kan. 1967) (upholding the use of testimony about the defendant's behavior subsequent to the homicide).
24. One court, though, has noted that "[t]here is a general paucity of cases throughout the country discussing the issue of adultery as evidence of motive to kill one's spouse." Camm v. State, 812 N.E.2d 1127, 1132 (Ind. Ct. App. 2004). Nevertheless, as the Reaves court noted, "In the common experience of mankind, this is an oft repeated motive for homicide." 970 S.W.2d at 118. But cf. Greene v. Commonwealth, 197 S.W.3d 76, 87 (Ky. 2006) ('"Evidence of immorality would not tend to prove a propensity or predisposition to commit homicide.'" (quoting Springer v. Commonwealth, 998 S.W.2d 439, 449 (Ky. 1999))).
25. See, e.g., Camm, 812 N.E.2d at 1127 (reversing defendant's conviction of three counts of murder based upon the court's view that under the facts of the case, the prosecution's evidence of the defendant's adulterous conduct was impermissible character evidence and not proper evidence of a motive for murder); Lesley v. State, 606 So. 2d 1084 (Miss. 1992) (reversing the conspiracy to murder conviction because the trial court erred in permitting the prosecution to present evidence of the defendant's extramarital affairs which the court deemed remote, irrelevant, and prejudicial).
26. See, e.g., Lopez v. State, 200 S.W.3d 246, 251 (Tex. App. 2006) ("Evidence showing motive to commit murder is a significant circumstance indicating guilt, and it is therefore relevant and admissible."); Guevara v. State, 152 S.W.3d 45, 50 (Tex. Crim. App. 2004) ("Motive is a significant circumstance indicating guilt").
27. See State v. Nichols, 689 N.E.2d 98, 102 (Ohio Ct. App. 1996) ("Motive alone is insufficient to convict").
28. See id. ("Motive is a mental state which induces an act; it is a circumstantial fact used to strengthen an inference, drawn from other evidence, that an act was done [by the accused]."); Baker v. State, 97 N.W. 566, 570 (Wis. 1903) ("Motive is the reason which leads the mind to desire that result").
29. See Lesley, 606 So. 2d at 1090 (noting similarly that, "[a]t best, prior extramarital affairs of [the defendant] may have proven her propensity to have another affair").
30. See Fed. R. Evid. 404(b) ("Evidence of other crimes, wrongs, or acts ... may ... be admissible for other purposes, such as proof of motive ....").
31. Id.
32. Id. ("Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith.").
33. See id. Evidence of other crimes, wrongs, or acts... may... be admissible for other purposes, such as proof of motive ... provided that upon request by the accused, the prosecution in a criminal case shall provide reasonable notice in advance of trial, or during trial if the court excuses pretrial notice on good cause shown, of the general nature of any such evidence it intends to introduce at trial. Id.
34. See Fed. R. Evid. 404(a) (stating that, except as otherwise provided in the Rule, "[e]vidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion").
35. See Fed. R. Evid. 404(a)(1)-(3) (stating exceptions to the Rule). Moreover, if character is an element at issue, Rule 404 does not bar its use because the Rule generally prohibits only character evidence offered to "prove action in conformity" with the actor's asserted character or character trait.
36. See, e.g., id. (stating exceptions to the general rule of exclusion); Fed. R. Evid. 405(b) (authorizing the use of specific instances evidence if character is "an essential element of a charge, claim, or defense"); United States v. Franco, 484 F.3d 347, 352 (6th Cir. 2007) (observing that, in a case involving the subjective form of entrapment, "[b]ecause predisposition is relevant to entrapment, such character evidence was an essential element of Franco's defense, and therefore, these specific instances of his conduct were admissible"); World Wide Ass'n of Specialty Programs v. Pure, Inc., 450 F.3d 1132, 1138 (10th Cir. 2006) (noting that "it is well-established ... that the character of the plaintiff in a defamation case is at issue"). For a general discussion on the issue of entrapment, see Joseph A. Colquitt, Rethinking Entrapment, 41 Am. Crim. L. Rev. 1389 (2004).
37. See, e.g., Old Chief v. United States, 519 U.S. 172, 181 (1997) (listing a number of reasons for rejecting character evidence (citing Michelson v. United States, 335 U.S. 469, 475-76 (1948))).
38. Addressing "unfair prejudice" with respect to criminal defendants, the U.S. Supreme Court has stated that the term "speaks to the capacity of some concededly relevant evidence to lure the factfinder into declaring guilt on a ground different from proof specific to the offense charged." Id. at 180.
39. See, e.g., Huddleston v. United States, 485 U.S. 681, 686 (1988) ("The threshold inquiry a court must make before admitting similar acts evidence under Rule 404(b) is whether that evidence is probative of a material issue other than character."). The Court in Huddleston also stated that, "first,... Rule 404(b) [requires] that the evidence be offered for a proper purpose." Id. at 691; see also United States v. Tan, 254 F.3d 1204, 1207 (10th Cir. 2001); United States v. Hill, 249 F.3d 707, 710 (8th Cir. 2001). Although the issue in Hill was the use of prior convictions to prove intent, and in Tan it was prior crimes evidence offered to prove malice, rather than other bad acts evidence addressed to motive, the decision process remains the same.
40. See, e.g., Huddleston, 485 U.S. at 689 ("Evidence is admissible under Rule 404(b) only if it is relevant."); Tan, 254 F.3d at 1207; Hill, 249 F.3d at 710; Reaves v. State, 970 S.W.2d 111, 118 (Tex. App. 1998) (noting that the proffer of motive evidence pursuant to Rule 404(b) "calls for a trial judge to make a rule 401 relevancy determination").
41. See, e.g., State v. Osier, 569 N.W.2d 441, 443-44 (N.D. 1997) (reversing the defendant's conviction based on a finding that "[a]dmission of the niece's testimony to show motive ... cannot withstand scrutiny under Rule 404(b)" and concluding that the witness's "testimony was not relevant to a genuine issue regarding motive, scheme, plan, or any other listed exception under Rule 404(b)").
42. See Fed. R. Evid. 402.
43. See Fed. R. Evid. 401 ('"Relevant evidence' means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence."). State rules define relevance in the same or quite similar language. See, e.g., Ala. R. Evid. 401 (using the same language); Mich. R. Evid. 401 (same); People v. Davis, 371 N.E.2d 456, 460 (N.Y. 1977) (same (quoting Unif. Rule of Evidence 401)). Thus, courts may permit evidence that "tends to show" a fact in issue. See, e.g., State v. Craig, 853 N.E.2d 621, 632 (Ohio 2006).
44. In addition to the low threshold for relevancy, trial judges also exercise broad discretion in determining whether the evidence-including motive evidence-is relevant. See, e.g., Hill, 249 F.3d at 710 (noting that courts "generally review the admission of Rule 404(b) evidence for abuse of discretion"); People v. Norwood, 841 N.E.2d 514, 522 (Ill. App. Ct. 2005) (upholding use of other crimes evidence to show motive, noting that the question of admissibility is "left to the trial court's sound discretion," and upholding the decision to admit the evidence "absent a clear abuse of discretion"); Reaves, 970 S.W.2d at 119 (declining to find abuse of discretion in the admission of evidence of an extramarital affair, and observing that "trial courts are given a limited right to be wrong as long as their decision is not 'arbitrary and capricious'"). Moreover, an appellate court will not overrule the trial court's decision unless the trial court's ruling constitutes an abuse of discretion. See, e.g., State v. Barnes, 657 A.2d 611, 615 (Conn. 1995) ("Every reasonable presumption should be made in favor of the correctness of the court's ruling in determining whether there has been an abuse of discretion."); State v. Stephen F., 152 P.3d 842, 844 (N.M. Ct. App. 2007) (holding that the trial court abused its discretion in barring testimony tending to prove the witness's motive to lie); Craig, 853 N.E.2d at 633 (concluding that the trial court did not abuse its discretion in admitting other bad acts evidence). The court's discretion, though, does not authorize the court to ignore the rules. Thus, although Rule 404(b) states that motive evidence "may... be admissible," that phrase does not establish in the courts the discretion to reject motive evidence. See Fed. R. Evid. 404(b) advisory committee note ("[I]t is anticipated that with respect to permissible uses for such evidence, the trial judge may exclude it only on the basis of those considerations set forth in Rule 403, i.e., prejudice, confusion or waste of time.").
45. See supra text accompanying notes 24-26.
46. See, e.g., Huddleston v. United States, 485 U.S. 681, 691 (1988) ("[Protection against such unfair prejudice emanates ... from the assessment the trial court must make under Rule 403 to determine whether the probative value of the similar acts evidence is substantially outweighed by its potential for unfair prejudice."); United States v. Tan, 254 F.3d 1204, 1207 (10th Cir. 2001); Hill, 249 F.3d at 710, 713; Reaves, 970 S.W.2d at 118 (noting that motive evidence offered pursuant to Rule 404(b) is subject to a Rule 403 inquiry).
47. Fed. R. Evid. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.").
48. See, e.g., State v. West, 149 A.2d 217, 221 (N.J. 1959) (pre-Rule 403 case stating "[t]hat evidence is shrouded with unsavory implications is no reason for exclusion when it is a significant part of the proof').
49. See United States v. Moccia, 681 F.2d 61, 63 (1st Cir. 1982) (Breyer, J.) ("Although... 'propensity evidence' is relevant, the risk that a jury will convict for crimes other than those charged-or that, uncertain of guilt, it will convict anyway because a bad person deserves punishment-creates a prejudicial effect that outweighs ordinary relevance," quoted in Old Chief v. United States, 519 U.S. 172, 181 (1997)). But cf. Greene v. Commonwealth, 197 S.W.3d 76, 87 (Ky. 2006) ("Evidence of immorality would not tend to prove a propensity or predisposition to commit homicide.").
50. See Fed. R. Evid. 404(a) ("Evidence of a person's character or a trait of character is not admissible for the purpose of proving action in conformity therewith on a particular occasion ....").
51. See, e.g., People v. Norwood, 841 N.E.2d 514, 522 (Ill. App. Ct. 2005) (upholding use of other crimes evidence to show motive and noting that the question of admissibility is "left to the trial court's sound discretion," and upholding the admission of evidence "absent a clear abuse of discretion"); Reaves, 970 S.W.2d at 119 (declining to find abuse of discretion in the admission of evidence of an extramarital affair, and observing that "trial courts are given a limited right to be wrong as long as their decision is not 'arbitrary and capricious'"). But see Camm v. State, 812 N.E.2d 1127 (Ind. Ct. App. 2004) (reversing defendant's conviction of three counts of murder based upon the court's view that under the facts of the case, the prosecution's evidence of the defendant's adulterous conduct was impermissible character evidence and not proper evidence of a motive for murder); Lesley v. State, 606 So. 2d 1084 (Miss. 1992) (reversing the conspiracy to murder conviction because the trial court erred in permitting the prosecution to present evidence of the defendant's extramarital affairs which the court deemed remote, irrelevant, and prejudicial).
52. The significance of "playing the race card" has been recognized by a number of courts since it was propelled into prominence in the O.J. Simpson case. See, e.g., F.J.W. Enters., Inc. v. Johnson, 746 So. 2d 1145, 1147 (Fla. Dist. Ct. App. 1999) (noting that "[t]his [the race card] has become a 'buzz word,' since the O.J. Simpson case, indicating that one has unnecessarily and improperly inserted the issue of race into a case"); see also People v. Houston-Irving, No. 035071, 2006 WL 2105875, at *10 (Cal. Ct. App. July 31, 2006) (discussing an argument by counsel specifically accusing the other attorney of playing the race card by accusing a witness "of being a racist"); Calloway v. State, 784 A.2d 636 (Md. Ct. Spec. App. 2001) (discussing final arguments in which both sides addressed the "race card" issue).
53. See, e.g., Old Chief, 519 U.S. at 182-84. As for the analytical method to be used in Rule 403 balancing... a second approach would start out like the first but be ready to go further. On objection, the court would decide whether a particular item of evidence raised a danger of unfair prejudice. If it did, the judge would go on to evaluate the degrees of probative value and unfair prejudice not only for the item in question but for any actually available substitutes as well. If an alternative were found to have substantially the same or greater probative value but a lower danger of unfair prejudice, sound judicial discretion would discount the value of the item first offered and exclude it if its discounted probative value were substantially outweighed by unfairly prejudicial risk.... [A] judge applying Rule 403 could reasonably apply some discount to the probative value of an item of evidence when faced with less risky alternative proof going to the same point.... Id. at 182-83. The Advisory Committee notes to Rule 401 explicitly state that a party's concession is pertinent to the court's discretion to exclude evidence on the point conceded).
54. Id. at 174.
55. Id. at 186-87.
56. See, e.g., United States v. Hill, 249 F.3d 707, 713 (8th Cir. 2001) (concluding that "the rationale for the limited rule of Old Chief disappears" when a stipulation addresses an element of the crime rather than the defendant's criminal status); State v. Ball, 756 So. 2d 275, 278-80 (La. 1999) (stating a number of reasons for distinguishing and refusing to follow Old Chief).
57. See, e.g., United States v. Crowder, 141 F.3d 1202, 1209 (D.C. Cir. 1998) (reviewing Old Chief and holding "that a defendant's offer to stipulate to an element of an offense does not render the government's other crimes evidence inadmissible under Rule 404(b) to prove that element, even if the defendant's proposed stipulation is unequivocal"); see also Hill, 249 F.3d at 713. In Old Chief, the Court noted that, "[i]n sum, the accepted rule that the prosecution is entitled to prove its case free from any defendant's option to stipulate the evidence away rests on good sense." 519 U.S. at 189.
58. See Old Chief, 519 U.S. at 183 ("[A] defendant's Rule 403 objection offering to concede a point generally cannot prevail over the Government's choice to offer evidence showing guilt and all the circumstances surrounding the offense."); Ball, 756 So. 2d at 280 (noting that to force the prosecution to accept a proffered defense stipulation would frustrate the general rule that '"[t]he State cannot be robbed of the moral force of its case merely because the stipulation is offered'" (quoting State v. Watson, 449 So. 2d 1321, 1326 (La. 1984))).
59. See State v. Ferrone, 113 A. 452, 455 (Conn. 1921) ("If the accused be guilty, he should none the less be convicted only after a fair trial, conducted strictly according to the sound and well-established rules which the laws prescribe.").
60. See Handford v. United States, 249 F.2d 295, 296 (5th Cir. 1958) (noting that federal prosecutors bear the dual duties to prosecute zealously and to be fair to the accused); Ferrone, 113 A. at 455 (observing that prosecutors engaged in litigation "should be forceful, but fair"); People v. Pelchat, 464 N.E.2d 447, 451 (N.Y. 1984) (opining that a prosecutor "owes a duty of fair dealing to the accused").
61. See Berger v. United States, 295 U.S. 78, 88 (1935) (observing that federal prosecutors represent the government, "whose interest... in a criminal prosecution is not that it shall win a case, but that justice shall be done"); Ferrone, 113 A. at 455 (noting that prosecutors "seek impartial justice for the guilty as much as for the innocent"); Pelchat, 464 N.E.2d at 451 (noting that prosecutors are "charged with the duty not only to seek convictions but also to see that justice is done").
62. See Standards for Criminal Justice: Prosecution Function and Defense Function Standard 3-1.2(c) (3d ed. 1993) ("The duty of the prosecutor is to seek justice, not merely to convict."); Model Rules of Prof 1 Conduct R. 3.8 cmt. 1 (2002) ("A prosecutor has the responsibility of a minister of justice and not simply that of an advocate."); Nat'l Prosecution Standards Standard 1.1 (Nat'l Dist. Att'ys Ass'n, 2d ed. 1991) ("The primary responsibility of prosecution is to see that justice is accomplished."); see also Berger, 295 U.S. at 88 (observing that "the twofold aim of [federal prosecutors] is that guilt shall not escape or innocence suffer"); Handford, 249 F.2d at 296 (noting that federal prosecutors bear the dual duties to prosecute zealously and to be fair to the accused); People ex rel. N.R., 139 P.3d 671, 683 (Colo. 2006) ("A district attorney is further bound by standards of conduct unique to public prosecutors: her duty is to seek justice, not merely to convict").
63. See Berger, 295 U.S. at 88 (noting that, "while [the prosecutor] may strike hard blows, he is not at liberty to strike foul ones. It is as much his duty to refrain from improper methods calculated to produce a wrongful conviction as it is to use every legitimate means to bring about a just one").
64. See supra note 8.
65. See Baker v. State, 97 N.W. 566, 569 (Wis. 1903). In this case, other bad acts evidence was received by the trial court on the issue of fraudulent intent. The state supreme court, in reversing the conviction, explained, We now come to the errors assigned upon the admission of evidence, which are very numerous, but not more so than is warranted by the extraordinary flights of inquiry in which the trial court indulged the state's counsel. Much of the objected testimony consisted of narratives of conversations with and conduct of the accused on other and remote occasions, so interlarded with gossipy or scandalous suggestion and innuendo as to indicate the purpose of the witnesses, if not of counsel, to degrade and discredit her in the esteem of the jury. Any such attempt on the part of counsel in the trial of any case, but especially of the attorney for the state in a criminal prosecution, is highly improper, and should be promptly checked by the trial court.... It is no more proof of the fraudulent intent than of the other elements of the crime that accused is of loose morals or general dishonest tendencies. Id. at 569-70.
66. See, e.g., Jaunese v. State, 701 N.E.2d 1282, 1284 (Ind. Ct. App. 1998) ("Unfortunately, extramarital affairs are all too common in today's society.");
67. Phyllis Coleman, Who's Been Sleeping in My Bed? You and Me, and the State Makes Three, 24 Ind. L. Rev. 399 n.2 (1991) ("[A]ffairs are extremely common." (quoting Luann Linquist, Secret Lovers, at xi (1989)));
68. Aya Gruber, Victim Wrongs: The Case for a General Criminal Defense Based on Wrongful Victim Behavior in an Era of Victims ' Rights, 76 Temp. L. Rev. 645, 679 (2003) ("Some studies show that today adultery is quite common ....").
69. See, e.g., Jaunese, 701 N.E.2d at 1284 n.3 (citing statistics from articles, including Coleman, supra note 63, and Martin J. Siegel, For Better or for Worse: Adultery, Crime & the Constitution, 30 J. Fam. L. 45 (1991));
70. Vera Bergelson, The Right to Be Hurt: Testing the Boundaries of Consent, 75 Geo. Wash. L. Rev. 165, 215 (2007) (observing that perhaps fifty percent of married adults have committed adultery);
71. Coleman, supra note 63, at 412 (noting that "a majority of married people have affairs"); Siegel, supra at 55 ("Most American marriages include extramarital sex by at least one of the partners. Half of all husbands report having committed adultery ....Somewhere between a third to forty percent of all wives say they have been unfaithful ....");
72. Jennifer A. Herold, Note, A Breach of Vows but Not Criminal: Does Lawrence v. Texas Invalidate Utah's Statute Criminalizing Adultery?, 7 J. L. & Fam. Stud. 253 (2005) ("[S]tudies suggest that nearly fifty percent of married men and women have engaged in adultery.").
73. See Coleman, supra note 63, at 399 n.2; Gruber, supra note 63, at 679 n.161 ("According to one study, approximately 70% of married men cheat on their wives, and 50% of married women cheat on their husbands.");
74. Nehal A. Patel, Note, The State's Perpetual Protection of Adultery: Examining Koestler v. Pollard and Wisconsin's Faded Adultery Torts, 2003 Wis. L. Rev. 1013, 1015 ("The most reputable social science surveys reveal that at least twenty to fifty percent of American adults admit to committing adultery, and some studies estimate the adultery rate to be as high as seventy percent").
75. See Bradford Bigler, Comment, Sexually Provoked: Recognizing Sexual Misrepresentation as Adequate Provocation, 53 UCLA L. Rev. 783, 805 & n.112 (2006) (citing several studies and quoting one source to the effect that "adultery statistics are hotly debated," noting a "relatively high incidence of marital infidelity," and providing conservative estimates).
76. See, e.g., Lynn D. Wardle, Parental Infidelity and the "No-Harm" Rule in Custody Litigation, 52 Cath. U. L. Rev. 81, 93 (2002) ("The best evidence indicates that while the incidence of marital infidelity is much lower than commonly described in tabloids, supermarket check-stand magazines, and television talk shows, it nevertheless occurs in many marriages."). Wardle quotes Tom Smith of the University of Chicago's National Opinion Research Council, as opining that "[t]he best estimates are that about... 15-17% of ever-married people have had a sexual partner other than their spouse while married." Id. at 94.
77. See, e.g., Wardle, supra note 67, at 93 (noting that
78. See Siegel, supra note 64, at 56 (quoting Brian G. Gilmartin, The Gilmartin Report 11 (1978)).
79. See, e.g., Siegel, supra note 64, at 55-56 ("Despite the prevalence of extramarital activity, the vast majority of people criticize departures from monogamy: 'In the latest available survey, 87% said that extramarital relations were "always wrong" or almost always wrong.'" (quoting Lynn Atwater, The Extramarital Connection 15 (1982)));
80. Wardle, supra note 67, at 95 ("Opinion surveys also indicate that even in today's 'liberated' sexual atmosphere, most Americans still consider adultery to be immoral.");
81. Herold, supra note 64, at 253 (noting that "the majority of Americans find adultery morally wrong");
82. Gabrielle Viator, Note, The Validity of Criminal Adultery Prohibitions After Lawrence v. Texas, 39 Suffolk U. L. Rev. 837, 839 n.19 (2006) ("Unless a married person is separated from his or her spouse, nine in [ten] people believe it's always or at least almost always wrong to have sex with someone else." (quoting a USA Today/CNN/Gallop poll) (internal quotation marks omitted)).
83. See, e.g., United States v. Tan, 254 F.3d 1204, 1211 (10th Cir. 2001) (stating that "exclusion of evidence under Rule 403 that is otherwise admissible under the other mies 'is an extraordinary remedy and should be used sparingly'" (internal quotation marks omitted)); Lopez v. State, 200 S.W.3d 246, 252 (Tex. App. 2006) (observing that the "court should favor admission in close cases" when courts weigh evidence pursuant to Rule 403).
84. She also has the option to offer an alternative stipulation of the single witness in lieu of calling that witness, and then persisting with the presentation of other evidence of the defendant's adultery.
85. See Huddleston v. United States, 485 U.S. 681, 691-92 (1988) (noting that the protection against undue prejudice emanates from the availability of a limiting instruction which informs the jury that "similar acts evidence is to be considered only for the proper purpose for which it was admitted"). Limiting instructions are addressed by Federal Rule of Evidence 105. Cautionary instructions are normally given only when requested by a party, and the failure to give limiting instructions sua sponte rarely will be deemed error. See, e.g., Maday v. Pub. Libraries of Saginaw, 480 F.3d 815, 820 (6th Cir. 2007) (stating that, in absence of a request for a limiting instruction, the court reverses only for the "very high standard" of plain error); Ex parte Martin, 931 So. 2d 759, 760 (Ala. 2004) (holding that the failure to give a limiting instruction absent a request did not constitute plain error); State v. Äthan, 158 P.3d 27, 41 (Wash. 2007) (observing that "the failure of a court to give a limiting instruction is not error when no instruction was requested"). Attorneys in the exercise of professional judgment may elect not to request such an instruction for a number of reasons. See, e.g., State v. Wach, 24 P.3d 948, 953 (Utah 2001) (noting that the trial court offered to give a curative instruction, but that the defendant's attorney declined the offer and argued an instruction likely would emphasize the matter to the jury). Yet if the evidence is significantly prejudicial, the court should consider giving a cautionary instruction sua sponte unless the prejudiced party objects. See, e.g., Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007) (observing that "counsel might reasonably conclude that such an instruction might inadvertently call attention to the evidence of prior bad acts"). The failure to give a cautionary instruction sua sponte, though, may be error in some instances. See, e.g., People v. Pichardo, 825 N.Y.S.2d 603, 605 (App. Div. 2006) (referring to the statement of a nontestifying codefendant, the court stated that, "[a]lthough defendant did not request a limiting instruction, we conclude under the circumstances of this case that the failure to give such an instruction is a fundamental error that warrants reversal and a new trial").
86. See Krulewitch v. United States, 336 U.S. 440, 453 (1949) (Jackson, J., concurring) ("The naive assumption that prejudicial effects can be overcome by instructions to the jury, all practicing lawyers know to be unmitigated fiction." (citations omitted)). Nevertheless, the prosecutor might consider a limiting instruction as a tool to mitigate the impact of the motive evidence if she is weighing its impact. See Fed. R. Evid. 403 advisory committee note (noting that, "[i]n reaching a decision whether to exclude on grounds of unfair prejudice, consideration should be given to the probable effectiveness or lack of effectiveness of a limiting instruction").
87. It also should be noted that when attorneys, prosecutors, or judges are assessing the potential prejudicial impact of evidence prior to offering or admitting the evidence, the efficacy of a limiting instruction is difficult to measure in light of the fact that the party against whom the evidence is offered may either choose not to request a cautionary instruction or oppose the giving of such an instruction. See, e.g., Wach, 24 P.3d at 953 (noting that the trial court offered to give a curative instruction, but that the defendant's attorney declined the offer and argued an instruction likely would emphasize the matter to the jury).
88. See Peter W. Agnes, Jr., An Ounce of Prevention Is Worth a Pound of Cure: A Collaborative Approach to Eliminate Improper Closing Arguments, 87 Mass L. Rev. 33, 40 (2002). In another context, then Justice Hennessey of the Supreme Judicial Court observed that courts should be "skeptical as to the effectiveness of limiting instructions" in circumstances in which the evidence has a high potential for unfair prejudice. Yet despite the fact that the problem of ineffectual curative instructions has been known to exist for many years and there is an emerging body of empirical data that indicates that curative instructions do not work, appellate courts continue to presume that curative instructions repair the harm caused by improper arguments. Id. (citing Commonwealth v. DiMarzo, 308 N.E.2d 538, 546 (Mass. 1974) (Hennessey, J., concurring)).
89. See, e.g., Fed. R. Evid. 412(c)(1)(A) (notice requirement); Ala. R. Evid. 412(d)(1) (same); Wash. R. Evid. 412(d)(1)(A) (same).
90. See Fed. R. Evid. 608(b) ("Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness ... may ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness ....").
91. See supra note 10 (identifying the reason for the inclusion of race in the scenario).
92. See Fed. R. Evid. 608(b) ("Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence."). Thus, as described by one writer, Rule 608(b) "leaves the perjury henhouse unguarded."
93. Gerald L. Shargel, Federal Evidence Rule 608(b): Gateway to the Minefield of Witness Preparation, 76 Fordham L. Rev. 1263, 1264 (2007).
94. See supra text accompanying notes 36-48.
95. Prior to the enactment of rape-shield laws, some states permitted criminal defendants charged with rape to produce evidence of the bad reputation for sexual promiscuity of the prosecutrix in an attempt to prove that the victim consented to the alleged intercourse. See, e.g., Knox v. State, 365 So. 2d 349, 350 (Ala. Crim. App. 1978) (discussing the common law and rape-shield statute, and upholding the trial judge's ruling barring the defendant's attempt to bring up "specific acts or conduct of the prosecutrix with third persons").
96. See Fed. R. Evid. 412.
97. See, e.g., Ala. R. Evid. 412; Minn. R. Evid. 412; Tex. R. Evid. 412; Wash. R. Evid. 412.
98. See, e.g., Fed. R. Evid. 412 advisory committee note ("The rule aims to safeguard the alleged victim against the invasion of privacy, potential embarrassment and sexual stereotyping that is associated with public disclosure of intimate sexual details and the infusion of sexual innuendo into the fact-finding process."); United States v. Bordeaux, 400 F.3d 548, 558 (8th Cir. 2005) (stating that "the purpose" of Rule 412 "is to protect the alleged victims of sexual assault from harassment or embarrassment"). Professor Aviva Orenstein describes evidence of a victim's sexual history as "technically irrelevant, but practically explosive." Orenstein, supra note 8, at 1599.
99. Courts view these concerns as legitimate raison d'être for rape-shield statutes. See, e.g., Michigan v. Lucas, 500 U.S. 145, 149-50 (1991) ("The Michigan [rape-shield] statute represents a valid legislative determination that rape victims deserve heightened protection against surprise, harassment, and unnecessary invasions of privacy."); Bloch v. Ribar, 156 F.3d 673, 685 (6th Cir. 1998) ("This interest in protecting the victims of sexual violence from humiliation, among other injuries, has prompted states to pass rape shield laws ....").
100. See State v. Gregory, 147 P.3d 1201, 1215 (Wash. 2006) ("The [rape-shield] statute clearly contemplates that where there is a substantial danger of undue prejudice to the truth finding process, such evidence will be excluded.").
101. See Fed. R. Evid. 412. But in cases in which consent is an issue, evidence that the alleged victim engaged in consensual sexual relations with the accused on other occasions is permissible. Fed. R. Evid. 412(b)(1)(B).
102. See, e.g., Knox v. State, 365 So. 2d 349, 350 (Ala. Crim. App. 1978) (noting that prior to the enactment of a rape-shield statute, criminal defendants charged with rape could offer evidence of the prosecutrix's bad reputation for sexual promiscuity as part of a defense that the alleged victim consented to the intercourse).
103. See, e.g., Fed. R. Evid. 412(b).
104. See, e.g., Wis. Stat. Ann. § 972.11(2)(b)(3) (West 2007) (providing as an exception to the general exclusion of evidence concerning a complaining witness's prior sexual conduct "[e]vidence of prior untruthful allegations of sexual assault made by the complaining witness"). But see Redmond v. Kingston, 240 F.3d 590, 592 (7th Cir. 2001) (addressing the Wisconsin rape-shield statute and stating that "[t]he false-charge 'exception' to the rape-shield statute is not really an exception, but rather a reminder of the limited meaning of 'sexual conduct' as defined in the statute").
105. See e.g., Wis. Stat. Ann. § 972.11(2)(b)(3).
106. See, e.g., Va. Code Ann. § 18.2-67.7B (2004) ("Nothing contained in this section shall prohibit the accused from presenting evidence relevant to show that the complaining witness had a motive to fabricate the charge against the accused."); Wis. Stat. Ann. § 972.11(2)(b)(3) (providing as an exception to the general exclusion of evidence concerning a complaining witness's prior sexual conduct "[e]vidence of prior untruthful allegations of sexual assault made by the complaining witness").
107. See, e.g., State v. Alberts, 722 N.W.2d 402, 410 (Iowa 2006) ("[A] falsity determination simply means the statements are not 'past sexual behavior' within the meaning of our rape-shield law."); State v. Long, 140 S.W.3d 27, 30 n.3 (Mo. 2004) ("Evidence of prior complaints, as opposed to prior sexual conduct, is not rendered inadmissible by" the rape-shield statute); State v. Boggs, 588 N.E.2d 813, 817 (Ohio 1992) ("Because prior false accusations of rape do not constitute 'sexual activity' of the victim, the rape-shield law does not exclude such evidence."); Ginebell v. Commonwealth, 368 S.E.2d 263, 264 (Va. 1988). In the present case, Ginebell does not seek to prove that his daughter has engaged in "prior sexual conduct" or that she has an unchaste character. He seeks to prove for impeachment purposes that his daughter makes false statements concerning sexual behavior. We conclude that such statements are not "conduct" within the meaning of Code § 18.2-67.7, and therefore, the section is inapplicable. Id. Although the Virginia rape-shield statute was enacted in 1981, the Virginia court did not rely on subsection B of the statute, but determined instead that the proffered evidence did not fall within the statute's definition of sexual conduct. See id. at 264. At least one court has noted "the difficulty in determining what sexual behavior is for the purposes of that state's rape-shield law. Alberts, 722 N.W.2d at 408. The Ohio Supreme Court, though, has limited the false claims exception to incidents in which no sexual conduct was involved. See Boggs, 588 N.E.2d at 816 ("False accusations, where no sexual activity is involved, do not fall within the rape-shield statute."). The Boggs court also stated that "[o]nly if it is determined that the prior accusations were false because no sexual activity took place would the rape-shield law not bar further cross-examination." Id. at 818. The focus in such cases, though, should be on the false claim, not on accompanying sexual conduct, if any. Therefore, the exception should apply regardless of whether sexual conduct accompanies the false claim. See, e.g., Clifford S. Fishman, Consent, Credibility, and the Constitution: Evidence Relating to a Sex Offense Complainant's Past Sexual Behavior, 44 Cath. U. L. Rev. 709, 770 (1995) ("A prior false accusation is not 'sexual conduct,' thus the statute should not protect the complainant from exposure of prior lies or falsehoods.").
108. See State v. Barber, 766 P.2d 1288, 1289 (Kan. Ct. App. 1989) ("We are persuaded to join the majority of jurisdictions which have considered the question and hold the rape-shield statute simply does not apply."); Clinebell, 368 S.E.2d at 265. In fact, one court has observed that "[v]irtually all cases considering the issue have found that false claims of prior sexual conduct do not fall within the coverage of rape-shield laws." State v. Baker, 679 N.W.2d 7, 10 (Iowa 2004).
109. See Clinebell, 368 S.E.2d at 265 (observing that in some states "evidence of prior false accusations is admissible to impeach the complaining witness' credibility," and listing fourteen state cases in support).
110. See id. (noting that in some states "evidence of prior false accusations is admissible ... as substantive evidence," and listing five state cases in support).
111. See, e.g., Quinn v. Haynes, 234 F.3d 837, 845 (4th Cir. 2000) (noting that "[t]he distinction between impeachment evidence proving bias and impeachment evidence of general credibility is important," and discussing the difference in permissible proof).
112. See, e.g., id.; State v. Cox, 468 A.2d 319, 322 (Md. 1983) ("We recognize that in cases regarding prior misconduct, the cross-examiner is bound by the witness' answer and, upon the witness' denial, may not introduce extrinsic evidence to contradict the witness or prove the discrediting act."); Boggs, 588 N.E.2d at 816-17 (concluding that prior false claims without accompanying sexual conduct fall outside the state's rape-shield statute and are governed by the state's Rule 608(B), which prohibits the use of extrinsic evidence, and holding that "the defendant will be bound by the answers given by the victim" and "under no circumstances would the defense be permitted to introduce extrinsic evidence").
113. See, e.g., Fed. R. Evid. 608(b). Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness, other than conviction of crime as provided in rule 609, may not be proved by extrinsic evidence. They may, however, in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness (1) concerning the witness' character for truthfulness or untruthfulness .... Id.;
114. see also Quinn, 234 F.3d at 845;
115. Clinebell, 368 S.E.2d at 265 ("Generally ... a witness' character may not be impeached by showing specific acts of untruthfulness or bad conduct").
116. See Quinn, 234 F.3d at 845 (discussing credibility, but noting that "no such limit [against the use of extrinsic evidence] applies to credibility attacks based upon motive or bias."); State v. Barber, 766 P.2d 1288, 1290 (Kan. Ct. App. 1989) (upholding the trial court's explicit negative finding that they had made no false accusation, but stating nevertheless that "[w]e hold that despite the restriction [against extrinsic evidence], in a sex crime case, the victim/complaining witness may be cross-examined about prior false accusations, and if she denies making those accusations, defendant may put on evidence of those accusations"); State v. Long, 140 S.W.3d 27, 32 (Mo. 2004) ("The facts of this case indicate that Long is entitled to an opportunity to establish the admissibility of extrinsic evidence regarding the victim's prior false allegations."); Clinebell, 368 S.E.2d at 266 ("[I]n a sex crime case, the complaining witness may be cross-examined about prior false accusations, and if the witness denies making the statement, the defense may submit proof of such charges."). Because the evidence is being tendered on behalf of a criminal defendant, constitutional law may require its receipt. See Fed. R. Evid. 412(b)(1)(C) (establishing as an exception to the general rule of inadmissibility "evidence the exclusion of which would violate the constitutional rights of the defendant"); Olden v. Kentucky, 488 U.S. 227 (1988) (permitting a criminal defendant to inquire into the victim's alleged cohabitation with another man on the issue of bias).
117. See Fed. R. Evid. 608(b) ("Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness' character for truthfulness,... may ... in the discretion of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness . . . concerning the witness' character for truthfulness or untruthfulness . ...").
118. See supra notes 96-97.
119. See, e.g., Yarborough v. Gentry, 540 U.S. 1, 5 (2003) ("The Sixth Amendment guarantees criminal defendants the effective assistance of counsel."); Strickland v. Washington, 466 U.S. 668, 687 (1984) (establishing a two-part test for assessing ineffective assistance of counsel claims); McMann v. Richardson, 397 U.S. 759, 771 n.14 (1970) (observing that "the right to counsel is the right to the effective assistance of counsel"). Civil litigants may not have the same constitutionally established rights of a criminal defendant, but they should be able to expect effective representation arising from the contractual relationship with counsel.
120. See United States v. Ruiz, 536 U.S. 622, 628 (2002) (noting a criminal defendant's '"fair trial' guarantee"); United States v. Bordeaux, 400 F.3d 548, 558 (8th Cir. 2005) ("The Constitution guarantees every criminal defendant a fair trial.").
121. See Model Rules of Prof'l Conduct R. 1.2(a) (2002) (stating that, with few exceptions, "a lawyer shall abide by a client's decisions concerning the objectives of representation"); Joseph A. Colquitt, Hybrid Representation: Standing the Two-Sided Coin on Its Edge, 38 Wake Forest L. Rev. 55, 62 (2003) (identifying fundamental choices left to the defendant).
122. See Model Rules of Prof'1 Conduct R. 1.2(a) ("In a criminal case, the lawyer shall abide by the client's decision, after consultation with the lawyer, as to a plea to be entered, whether to waive jury trial and whether the client will testify."). For an interesting and thorough discussion of the legal and ethical dilemmas facing counsel for a client who wishes to testify falsely, see Perrin, supra note 6.
123. See Colquitt, supra note 106, at 55 (discussing the roles of counsel and defendants). Of course, the standards of effective representation are relative, and are determined by the facts of each case. Therefore, an attorney's failure to consult with the client in some instances may constitute ineffective assistance.
124. See Model Rules of Prof 1 Conduct R. 1.3 cmt. ("A lawyer is not bound... to press for every advantage that might be realized for a client. For example, a lawyer may have authority to exercise professional discretion in determining the means by which a matter should be pursued.").
125. See Rodney J. Uphoff, Who Should Control the Decision to Call a Witness: Respecting a Criminal Defendant's Tactical Choices, 68 U. Cin. L. Rev. 763, 772 (2000) (noting that neither the Model Code nor the Model Rules "resolve[s] conclusively the specific question of who ultimately controls the decision to call particular witnesses").
126. See id. at 766-67 (explaining the "traditional approach").
127. See Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (noting that "counsel has wide latitude in deciding how best to represent a client"); Taylor v. Illinois, 484 U.S. 400, 418 (1988) (observing that with few exceptions "the lawyer has-and must have-full authority to manage the conduct of the trial"); Scott v. State, 742 So. 2d 1190, 1196 (Miss. Ct. App. 1999) (noting that whether or not to call witnesses is "within the ambit of trial strategy"); Colquitt, supra note 106, at 62-63 (discussing tactical choices left with attorneys); Uphoff, supra note 110, at 776 ("The selection of a witness is a strategic or tactical decision that is only a means to the desired end: winning the lawsuit. Accordingly, such a decision is squarely within the lawyer's province."). Professor Rodney Uphoff has noted that "Supreme Court cases demonstrate ... that the Constitution provides criminal defense lawyers wide discretion over decisionmaking issues ...." Id. at 780. Uphoff has also discussed the control factor at length. In his article, he presented a scenario involving an attorney-client control issue, but his scenario is virtually the reverse of Scenario 2 in this essay. Id. at 76364, 808. In his case, the client wanted to keep his father off the stand and the attorney felt that the father's testimony was important to the defense. In Scenario 2, the opposite is possible: the client may well want the witness to testify, and the attorney may be willing to accept the stipulation in lieu of calling the witness.
128. See Colquitt, supra note 106, at 62-63.
129. See Model Rules of Prof'1 Conduct R. 1.4(a)(2) ("A lawyer shall... reasonably consult with the client about the means by which the client's objectives are to be accomplished ...."); Strickland v. Washington, 466 U.S. 668, 688 (1984) (cataloging as a "basic dut[y]" counsel's obligation "to consult with the defendant on important decisions and to keep the defendant informed of important developments in the course of the prosecution").
130. See Taylor, 484 U.S. at 418 ("The adversary process could not function effectively if every tactical decision required client approval.").
131. Such reasons lead to a version of hybrid representation and perhaps some confusion about who is in charge. This is but one of the reasons why hybrid representation is an option that should be used sparingly. See Colquitt, supra note 106, at 127. Although hybrid representation might be more readily available in extraordinary cases, this likely is not one of them.
132. See, e.g., Taylor, 484 U.S. at 418 ("Putting to one side the exceptional cases in which counsel is ineffective, the client must accept the consequences of the lawyer's decision to forgo cross-examination, to decide not to put certain witnesses on the stand ....").
133. See McMann v. Richardson, 397 U.S. 759, 771 (1970) (stating that "defendants facing felony charges are entitled to the effective assistance of competent counsel"); see also Strickland, 466 U.S. at 692 (holding that to render ineffective assistance of counsel, the attorney's performance must fall outside accepted norms and result in prejudice to the defendant); cf. Jones v. Barnes, 463 U.S. 745, 753 n.6 (1983) ("In any event, the fact that the ABA may have chosen to recognize a given practice as desirable or appropriate does not mean that that practice is required by the Constitution."). Nor does it mean that the Constitution permits the practice.
134. 466 U.S. 668 (1984).
135. Id. at 688.
136. Id. at 692.
137. See id.
138. See id. at 693-95 (demonstrating that prejudice will not be presumed).
139. See Model Rules of Prof'1 Conduct R. 1.3 cmt. (2002) ("A lawyer should... take whatever lawful and ethical measures are required to vindicate a client's cause or endeavor. A lawyer must also act with commitment and dedication to the interests of the client and with zeal in advocacy upon the client's behalf."); Shargel, supra note 80, at 1294 ("It is appalling to render anything less than zealous advocacy to a client, particularly a client facing potential loss of liberty or life.").
140. The view reminds one of the old adage "In for a penny, in for a pound."
141. See, e.g., Bruce A. Green, The Criminal Regulation of Lawyers, 67 Fordham L. Rev. 327, 328 (1998) (noting that, "at least in certain contexts, the principle of zealous advocacy requires lawyers to withhold information that may be harmful to the client's cause").
142. See, e.g., Rakesh K. Anand, Toward an Interpretive Theory of Legal Ethics, 58 Rutgers L. Rev. 653, 665 (2006) (noting that the principle of partisanship "requires a lawyer to act with 'extreme partisan zeal' on behalf of the client and his/her interests");
143. Lee E. Teitelbaum, Ethics, Morality, and Truth-Telling, 2006 Utah L. Rev. 157, 158 (describing partisanship as incorporating "nearly unbounded commitment to a client's interests and nearly absolute sanctity for the attorney-client privilege").
144. See James M. Altman, Modern Litigators and Lawyer-Statesmen, 103 Yale L.J. 1031, 1060-61 (1994) (reviewing Anthony T. Kronman, The Lost Lawyer (1993)).
145. See, e.g., Jack T. Camp, Thoughts on Professionalism in the Twenty-First Century, 81 Tul. L. Rev. 1377, 1381 (2007) ("Today, lawyers often view the duty to represent the client zealously as the paramount objective of the legal profession.").
146. See, e.g., id. at 1381-82 ("Focusing on the duty of zealous representation alone creates a lawyer who is little more than a 'hired gun' and one who does not exercise independent judgment on tactics or goals. The client becomes responsible for the ethical standards to which attorneys adhere.... The professional lawyer has competing obligations that must be considered.").
147. See generally Fred C. Zacharias & Bruce A. Green, Reconceptualizing Advocacy Ethics, 74 Geo. Wash. L. Rev. 1 (2005) (noting the existence of two predominant views of the advocate's role-zeal and personal conscience-and suggesting a third-professional conscience).
148. See, e.g., Monroe H. Freedman, Lawyer's Ethics in an Adversary System 9 (1975) [hereinafter Freedman, Lawyer's Ethics];
149. Monroe H. Freedman, Henry Lord Brougham, Written by Himself, 19 Geo. J. Legal Ethics 1213, 1215 (2006);
150. Marvin E. Frankel, The Search for Truth: An Umpireal View, 123 U. Pa. L. Rev. 1031, 1036 (1975);
151. William C. Heffeman, The Moral Accountability of Advocates, 61 Notre Dame L. Rev. 36, 76 n.80 (1986);
152. Harry I. Subin, The Lawyer as Superego: Disclosure of Client Confidences to Prevent Harm, 70 Iowa L. Rev. 1091, 1170 (1985);
153. Zacharias & Green, supra note 130, at 2 & n.2. Some, though, for the sake of brevity, quote only the first sentence.
154. See, e.g., Geoffrey C. Hazard, Jr., Rectification of Client Fraud: Death and Revival of a Professional Norm, 33 Emory L.J. 271, 280 n.18 (1984);
155. Russell G. Pearce, The Legal Profession as a Blue State: Reflections on Public Philosophy, Jurisprudence, and Legal Ethics, 75 Fordham L. Rev. 1339, 1350 (2006).
156. See, e.g., Camp, supra note 129; Mae C. Quinn, An RSVP to Professor Wexler's Warm Therapeutic Jurisprudence Invitation to the Criminal Defense Bar: Unable to Join You, Already (Somewhat Similarly) Engaged, 48 B.C. L. Rev. 539, 539 (2007) (rejecting Therapeutic Jurisprudence principles and the "'rehabilitative' defense lawyer" in favor of retaining the zealous representation model). See generally
157. David B. Wexler, Not Such a Party Pooper: An Attempt to Accommodate (Many of) Professor Quinn's Concerns About Therapeutic Jurisprudence Criminal Defense Lawyering, 48 B.C. L. Rev. 597 (2007) (answering Professor Quinn and promoting the incorporation of therapeutic lawyering as an "add-on" to other models such as zealous representation).
158. Freedman, Lawyer's Ethics, supra note 131, at 9.
159. See, e.g., Orenstein, supra note 8, at 1603 ("Yet we cannot very well insist that defense attorneys take it easy on rape victims-that would subvert the attorney's duty to zealously represent their clients."); Shargel, supra note 80, at 1294 ("Zealous advocacy means arming the client with every legitimate means of defense."). As a longtime participant in trials, though I do note that sometimes the injection of prejudicial information against one party can have an unexpected and undesired effect, namely that the fact-finder may riposte against the party presenting the prejudicial information because the party is viewed as behaving inappropriately.
160. But cf. Model Rules of Prof 1 Conduct R. 4.4[1] cmt. 1 (2002) ("Responsibility to a client requires a lawyer to subordinate the interests of others to those of the client, but that responsibility does not imply that a lawyer may disregard the rights of third persons.").
161. See, e.g., Orenstein, supra note 8, at 1603 ("[A]lthough cheap shots against the [rape] victim are unfair, unkind, and arguably bad for society, such behavior is to be expected of defense attorneys for whom the freedom and reputation of their clients is at stake.").
162. Ex parte Bruner, 681 So. 2d 173, 182 (Ala. 1996) (Maddox, J., concurring) (noting that, prior to Batson, "a party could exercise a peremptory challenge for a good reason, a bad reason, or for no reason at all"); Wright v. Bernstein, 129 A.2d 19, 24 (N.J. 1957) ("Thus a peremptory challenge can rest on a good reason, a bad reason, or no reason at all.").
163. See Bruner, 681 So. 2d at 182 (Maddox, J., concurring) (observing that prior to Batson and its progeny, attorneys "could strike jurors because of their race, color, religion, sex, national origin, economic status, or eye color").
164. Although the rule was unannounced as to the exercise of peremptory challenges, counsel were on notice of the possibility that discriminatory peremptory strikes might violate constitutional principles. See, e.g., Strauder v. West Virginia, 100 U.S. 303 (1879) (holding that a state violated the equal protection of minorities if it explicitly barred minorities from serving on juries). Although it took the Court many years to apply the principle to the discriminatory use of a state-provided process in a state court, some might opine that it should have been but a short journey.
165. 476 U.S. 79 (1986).
166. See id.
167. See generally J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127 (1994) (extending Batson protections to gender discrimination).
168. See generally Georgia v. McCollum, 505 U.S. 42 (1992) (applying the Batson rule to criminal defense attorneys and defendants); Edmonson v. Leesville Concrete Co., 500 U.S. 614 (1991) (applying the Batson rule to civil litigants; a civil litigant violates the Equal Protection Clause by exercising peremptory challenges in a racially discriminatory manner).
169. See McCollum, 505 U.S. at 57 (concluding that a criminal defendant's rights to counsel, an impartial jury, and a fair trial do not "include[] the right to discriminate against a group of citizens based upon their race"). Some scholars, though, argue that subsequent decisions purportedly applying the Batson mle actually rob Batson and its progeny of much of their legitimate impact.
170. See, e.g., Leonard L. Cavise, The Batson Doctrine: The Supreme Court's Utter Failure to Meet the Challenge of Discrimination in Jury Selection, 1999 Wis. L. Rev. 501, 501 (opining that the Court has been anxious to render Batson as "meaningless, ineffective, and unthreatening as possible," and concluding that the peremptory challenge is "alive and well for those who know how to use it");
171. see also Deana Kim El-Mallawany, Comment, Johnson v. California and the Initial Assessment of Batson Claims, 74 Fordham L. Rev. 3333, 3359 (2006) (discussing recent Batson-challenge cases and describing the Batson framework as "ailing"). Critics argue, for example, that despite the rulings of the Supreme Court, attorneys may effectively continue to discriminate on the basis of race and gender; they just cannot admit doing so.
172. See, e.g., Lonnie T. Brown, Jr., Racial Discrimination in Jury Selection: Professional Misconduct, Not Legitimate Advocacy, 22 Rev. Litig. 209, 246 n.164 (2003) ("In fact, one would be hard-pressed to maintain that the explanations offered by the prosecution in Purkett were anything other than ridiculous, not to mention offensive and insulting."); Cavise, supra, at 538 ("The post-Purkett neutral explanation has, for the most part, been reduced to what one Illinois court has called a 'charade.'");
173. Carla D. Pratt, Should Klansmen Be Lawyers? Racism as an Ethical Barrier to the Legal Profession, 30 Fla. St. U. L. Rev. 857, 886 n.117 (2003) (noting that Batson "is frequently circumvented [by practitioners] through pretextual rationales which" may appropriately be labeled "lies"). In Purkett v. Elem, the Court concluded that, in applying the Batson rule, "the ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike." 514 U.S. 765, 768 (1995). And, in Hernandez v. New York, the Court defined a sufficient ground to support the removal of a protected-class juror as "an explanation based on something other than the race [or gender] of the juror." 500 U.S. 352, 360 (1991). Thus, race- or gender-neutral reasons for removing protected-class jurors became easier to identify, and the burden to show a violation of the constitutional rights of jurors was placed squarely on the shoulders of the objecting party.
174. To the critics, Batson's promise has been eviscerated and zealous attorneys will be able to discriminate, albeit surreptitiously, against
175. They advocate doing so short only, perhaps, of committing a criminal offense (or contempt of court?).
176. Resolution XXXIII, supra note 1, at 765.
177. Zacharias & Green, supra note 130, at 12.
178. See, e.g., id. at 37.
179. Id. at 32 ("Arguably, therefore, the 'professional conscience' upon which Justice Gibson relied embodies professional norms that derive loosely from the lawyer's professional relationship to the court, which is itself committed to promoting justice. The norms have not necessarily been expressed in the law; they are transmitted through professional socialization. Even in the absence of an explicit judicial ruling-like the one that Rush sets forth (i.e., thou shalt not consciously prosecute an innocent man)-lawyers are supposed to know through training and experience what is expected of them professionally and to comport with the professional expectations even in the face of conflicting client demands."(citations omitted)).
180. See id. at 16 (identifying considerations that "justify a lawyer's self-restraint[]").
181. See id. at 10.
182. See id. at 11.
183. See id. at 12.
184. See id. at 54 ("Although the decision should be made by reference to professional interests, the preferable approach in any given case requires weighing various relevant facts in light of the competing interests. The best that a rule can do is to tell lawyers that there is no one correct answer for all cases within the broad category and then leave it to individual lawyers, at least in the first instance, to try to get it right in individual cases.").
185. See Kenneth M. Rosen, Lessons on Lawyers, Democracy, and Professional Responsibility, 19 Geo. J. Legal Ethics 155, 163 (2006).
186. See Orenstein, supra note 8, at 1607 ("Both the Rules of Evidence and the Rules of Professional Conduct are particularly unhelpful in assisting attorneys to confront these problems.").
187. See, e.g., Standards for Criminal Justice: Prosecution Function & Defense Function Standard 3-1.1 (3d ed. 1993) ("These standards are intended to be used as a guide to professional conduct and performance.").
188. See, e.g., id. Standard 3-1.2(b) ("The prosecutor is an administrator of justice, an advocate, and an officer of the court; the prosecutor must exercise sound discretion in the performance of his or her functions.").
189. See, e.g., Old Chief v. United States, 519 U.S. 172, 186 (1997) ("Although Old Chiefs formal offer to stipulate was, strictly, to enter a formal agreement with the Government to be given to the jury, even without the Government's acceptance his proposal amounted to an offer to admit that the prior-conviction element was satisfied, and a defendant's admission is, of course, good evidence.").
190. See, e.g., Strickland v. Washington, 466 U.S. 668, 688-89 (1984) (addressing effectiveness of counsel and stating that "[n]o particular set of detailed rules for counsel's conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.... Indeed, the existence of detailed guidelines for representation could distract counsel from the overriding mission of vigorous advocacy of the defendant's cause").
191. William Simon, though, has opined that we already provide such guidance. See William H. Simon, Ethical Discretion in Lawyering, 101 Harv. L. Rev. 1083, 1131 (1988) (contending that informal professional responsibility norms do provide sufficient guidance to lawyers faced with ethical problems as they try to "think through the issues," but lack "specific instructions designed to make it unnecessary to think through the issues").
192. See Joseph A. Colquitt, Ad Hoc Plea Bargaining, 75 Tul. L. Rev. 695, 776 (2001) (making the same observation in another context).
193. Resolution XXXIII, supra note 1, at 765.