Conduct at Trial

Conduct at Trial

Once the jury is in the box, a different clause of Rule 3.4 takes over. Model Rule 3.4(e) provides that a lawyer shall not, “in trial,” do any of three things: allude to any matter the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence; assert personal knowledge of facts in issue except when testifying as a witness; or state 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 an accused.¹ The words “in trial” mark the stage, as “in pretrial procedure” confines the discovery clause that comes before it.² Everything earlier in this chapter concerned how evidence is gathered, kept, and exchanged. This clause concerns what the lawyer says to the people who must decide.

The clause exists because a lawyer’s words occupy an odd place in a trial. Jurors are supposed to decide from admissible evidence: sworn testimony tested by cross-examination, and exhibits that have passed the rules of evidence. They are routinely instructed that the lawyers’ statements are not evidence, that their own recollection of the testimony governs, and that the law comes from the judge.³ Yet the lawyer’s statements come from the person who knows the case best, unsworn and beyond cross-examination, and no judge has screened them. An allusion to something never proved, an assurance that the lawyer knows what happened, or a declaration that a witness is lying can carry weight the evidence never earned. Each restriction closes a different route by which the lawyer’s voice replaces proof.

Zealous advocacy survives. A lawyer may marshal the admitted evidence, argue what it supports, and ask for a verdict. The clause keeps the lawyer in the role of advocate, which is why its text excepts a lawyer “testifying as a witness”: a lawyer who takes the stand speaks under oath and faces cross-examination like anyone else.⁴ Opposing counsel can object and the judge can rule, but a sustained objection comes after the jurors have heard the remark. For that reason the rule addresses the lawyer before the lawyer speaks.

The three restrictions are best learned one at a time, because each targets a different thing the lawyer might put in the jury’s mind. The first concerns what the lawyer refers to, and it turns on what the lawyer reasonably believes about relevance and admissible support. The second concerns the lawyer as a source of facts. The third concerns the lawyer as a voucher for conclusions about the cause, the witnesses, and the parties. Throughout, keep two questions apart: whether the lawyer breached the rule, and whether the remark justifies a court in disturbing the verdict. They get different answers more often than students expect.

Alluding to Unsupported Matters

The first restriction governs what a lawyer may mention in front of the jury: in trial, a lawyer shall not “allude to any matter that the lawyer does not reasonably believe is relevant or that will not be supported by admissible evidence.”⁵ The verb is allude, which reaches further than assert. A lawyer who never states a fact outright can still plant it with a pointed question, a loaded phrase in opening, or a gesture in closing toward what the evidence supposedly shows. The harm is the same however the suggestion arrives: the jurors now carry something no witness or exhibit established. The measure is reasonable belief, judged at the moment of speaking, so the lawyer need not guarantee how the judge will rule later.

The rules of evidence work by keeping certain matter from the jury altogether, and that filter operates only if lawyers respect it. A lawyer who could mention excluded matter in opening or closing would accomplish what the exclusion was meant to prevent. Jurors are told that counsel’s statements are not evidence,⁶ but the instruction arrives after the words are spoken.

The two speeches a lawyer makes directly to the jury put different questions to this clause. In opening, the lawyer is forecasting proof the jury has not yet received, so the question is whether the forecast rests on a reasonable belief that admissible evidence will support it. In closing, the lawyer is describing a record that now exists, so the question is whether the matter referred to is in that record or is a reasonable inference from it. Counsel may urge inferences liberally from the evidence even when opposing inferences are available; the main limit is that the inference be a reasonable one.⁷ An inference drawn from nothing is an allusion to an unsupported matter.

Reasonable belief produces three situations, and the line among them depends on what the lawyer knew, or could control, when speaking.

• Evidence the lawyer reasonably expects to be admitted may be mentioned, even though the judge has not ruled and may later rule the other way. Lawyers cannot know how every ruling will come out, and a rule that punished each mistaken forecast would stop them from previewing their cases at all.
• Evidence whose admission depends on a condition the lawyer does not control, such as a foundation only an adverse witness can supply, should wait until the evidence is in. If the condition fails, the jury has already heard the reference, while waiting costs little, because the matter can be woven into closing once it is in the record.
• Evidence the court has ruled inadmissible may not be mentioned. After a ruling, no belief that admissible evidence will support the reference can be reasonable, and a hint to the jury is a way of ignoring the ruling.

Control over the condition moved the answer in these scenes. The controller’s testimony rested on a witness the lawyer had secured and a clean foundation, so the forecast was sound even though it failed. The letter rested on the opponent’s cooperation, so describing it was a gamble the jury would pay for if it lost.

Closing argument presents the cleaner violation, because the record then exists and the lawyer cannot claim to be predicting anything.

A breach of the clause and a ground for a new trial are different questions. In Fineman v. Armstrong World Industries, Inc., the court of appeals, reviewing claims of improper argument by counsel, began by recognizing that not every improper remark creates enough prejudice to require a new trial. Its test is whether the improper assertions made it “reasonably probable” that the verdict was influenced by prejudicial statements.¹⁰ In the seminal case, Draper, a combination of improper remarks by plaintiff’s counsel supplied that showing, and a curative instruction delivered a day after the summation did not save the verdict. The conclusion was compelled by the argument as a whole and not by any single instance or type of impropriety. An isolated improper remark, by contrast, will not support a new trial.¹¹

The new-trial test measures what the remarks did to the verdict. The disciplinary clause measures what the lawyer did: whether the lawyer reasonably believed the matter relevant and supportable by admissible evidence when speaking. Its text does not make prejudice to the verdict a condition of the violation.¹² A single reference to excluded matter can therefore be too slight to disturb a verdict and still be a violation. A prompt instruction to disregard may keep the verdict standing, but it does not turn the reference into one the rule allows.

Questioning can raise the same concern, so the clause is not limited to speeches. In Tipton v. Aaron, a custody case, a separate opinion conceded that counsel may have been obliged to elicit prejudicial testimony once, from his own client, to show why the client objected to the appellant’s receiving custody. It saw no reason to repeat the exercise with every other witness except to appeal to what counsel or his client hoped would be a similarly prejudiced attitude in the trial judge. It called that conduct a direct violation of the holding in Palmore and arguably unethical under Rule 3.4.¹³ The opinion is a separate one that cites the rule generally, so it shows how far the reasoning can stretch and does not hold that any particular clause was broken.

Students most often err at the second and fourth steps. Some treat a lawyer’s unsuccessful forecast as misconduct, and others conclude that a sustained objection and a curative instruction erase the violation. The rule looks at what the lawyer reasonably believed when speaking, and the instruction is the court’s remedy for the jury, which leaves the lawyer’s own conduct unchanged.

Asserting Personal Knowledge

The second restriction provides that a lawyer shall not, in trial, “assert personal knowledge of facts in issue except when testifying as a witness.”¹⁵ The first restriction looks at what the lawyer refers to, and this one looks at the source the lawyer offers the jury. A fact in issue is one the jury must decide, and the clause bars the lawyer from vouching for such a fact on the strength of what the lawyer personally saw, heard, or learned outside the courtroom. The lawyer’s own knowledge or belief in the truth or falsity of the evidence is ordinarily not proper argument.¹⁶ A lawyer can offer that knowledge as a direct report of private investigation or as a softer appeal to experience and reputation, and the clause reaches both, because each asks jurors to credit the lawyer’s word in place of the record.

The reason lies in how evidence reaches a jury. Jurors decide on sworn testimony tested by cross-examination and on exhibits that have passed the rules of admissibility, and they are told that the lawyers’ statements are not evidence.¹⁷ A lawyer’s assertion of personal knowledge is evidence in everything but name. It is unsworn, no one can cross-examine it, and it comes from the person jurors may assume has seen the whole file. The roles also pull against each other. The function of an advocate is to advance or argue the cause of another, while the function of a witness is to state facts objectively, and an advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility.¹⁸ A lawyer who asserts facts from personal knowledge in argument occupies both roles at once.

The permitted alternative is argument from the record, and the line between the two turns on where the claim comes from. Counsel may urge inferences liberally from the evidence, even when opposing inferences exist, so long as the inference is reasonable.¹⁹ The commentary adds that counsel should avoid framing argument in terms of personal belief, but that this restriction is leniently applied so long as the lawyer does not suggest knowing something the jury does not.²⁰ An argument that testimony and documents show a fact can be checked by each juror against the transcript and the exhibits, and the opposing lawyer can answer with a different reading of the same material. A claim that the lawyer simply knows the fact can be checked against nothing.

The source of the claim moved the answer. The first lawyer reasoned from exhibits and testimony the jurors had seen, while the second asked them to accept an account that existed only in the lawyer’s head. Two errors follow from missing that. The first is to treat any use of “I” in argument as a violation, when the restriction is leniently applied to phrasing that does not suggest private knowledge. The second is to treat the avoidance of “I” as a safe harbor, since a statement that everyone in the industry knows the owner ignored such warnings carries the same suggestion of knowledge the jury never received.

The exception for a lawyer “testifying as a witness” follows from the reason for the clause.²² What the unsworn assertion lacks is an oath and cross-examination, and a lawyer who takes the stand has both. The facts then reach the jury as testimony that opposing counsel can probe, and the jury can weigh it as it weighs any witness’s account. The exception does not allow a lawyer to supply facts during argument and call them testimony.

Taking the stand has its own cost, because the two roles collide. In Kennedy v. Eldridge, a custody dispute in which counsel was disqualified, the opinion quotes Judge Mize on a confusion that had already surfaced. At an earlier hearing counsel told the court that he does not smoke marijuana and hates cigarette smoke so much that he asks smokers to leave his house. Judge Mize asked whether counsel was then arguing as an attorney, testifying as a witness, making an offer of proof for his client, or perhaps speaking for himself as a witness.²³ The question shows why unsworn assertions of fact by counsel are a problem. Once a lawyer states a disputed fact, no one can tell whether it is argument, evidence, or proof, or how much weight it deserves.

Stating Personal Opinions

The final restriction provides that a lawyer shall not, “in trial,” “state 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 an accused.”²⁵ A personal opinion is the lawyer’s own announced judgment, offered as something the lawyer believes and not as a conclusion the jurors can reach from the evidence. Three of the four subjects concern the outcome (the justness of a cause, a civil litigant’s culpability, an accused’s guilt or innocence), and the fourth, a witness’s credibility, concerns the evidence that produces the outcome. The previous restriction barred vouching on the strength of private knowledge. This one bars vouching on the strength of conviction, and it applies even when the conviction came from the record alone, because the harm lies in what the statement asks the jury to rely on. The standard commentary says the same in a sentence: a lawyer’s personal belief in the truth or falsity of the evidence is ordinarily not proper argument.²⁶

The jury is supposed to decide credibility and guilt for itself, weighing the testimony and exhibits it has seen. A lawyer’s personal assurance invites jurors to rest on trust in the lawyer instead. The assurance is unsworn, no one can cross-examine it, and it carries the authority of the lawyer’s role. The clearest examples involve prosecutors, whose position may lend their assurances extra weight.

The dissent in Darden v. Wainwright offers the sharpest catalogue of what the clause forbids. It set two prosecutors’ closing arguments beside Rule 3.4(e) and parallel standards, among them DR 7-106(C)(4) and ABA Standard 3-5.8(b).²⁷ One prosecutor, White, told the jury: “I am convinced, as convinced as I know I am standing before you today, that Willie Jasper Darden is a murderer,” and added that he would remain convinced for the rest of his life.²⁸ That states the lawyer’s own belief about the guilt of an accused, with no reference to any item of proof, and it asks jurors to accept the conclusion because the prosecutor holds it so firmly. The other prosecutor, McDaniel, said of Darden’s testimony: “If I am ever over in that chair over there, facing life or death, life imprisonment or death, I guarantee you I will lie until my teeth fall out.”²⁹ The remark goes to the credibility of a witness, since the defendant had testified, yet it draws no conclusion from what he said. McDaniel offered a prediction about his own behavior in the defendant’s chair and left the jury to apply it to Darden, so the credibility judgment rested on the prosecutor’s supposed character and not on the record.

These passages come from a dissent, so they show how a dissenting opinion measured the remarks against the rule and do not hold that the remarks violated it. The dissent also faulted McDaniel’s repeated references to Darden as a prisoner on furlough who “shouldn’t be out of his cell unless he has a leash on him,” but it measured those against a different standard, the ABA’s bar on argument that diverts the jury by injecting broader issues or predicting the consequences of its verdict.³⁰ Only White’s declaration of conviction and McDaniel’s remark about lying fall within the personal-opinion clause.

The case also shows that three different questions can be asked about the same words. The dissent faulted the majority for ignoring the professional standards that govern prosecutors and still concluding that the summations did not deprive Darden of a fair trial.³¹ As the dissent describes it, the majority relied on the standard from Donnelly v. DeChristoforo for deciding when a prosecutor’s comments at a state trial render that trial fundamentally unfair.³² A conviction can therefore survive constitutional review of the summation even though the statements are exactly what Rule 3.4(e) describes. The professional rule asks whether the lawyer made the statement, and its text says nothing about what the statement did to the verdict.³³

Civil trials supply the third question, the one a court asks when deciding whether to grant a new trial: whether improper assertions made it “reasonably probable” that the verdict was influenced.³⁴ The summation in Fineman shows the same flaw in softer language. The district court found that plaintiffs’ trial counsel gave his personal opinion as to the justness of his cause and injected his own credibility as an issue. Counsel had told the jurors, “I have a certain calmness about me today because of you, that is because I trust you. . . . I know, I don’t think, I don’t hope, but I just know that you’re going to do the right thing.”³⁵ Nothing in those words demands a particular verdict, yet they present counsel’s confidence in his case as trust between lawyer and jury, which is the substitution the clause exists to stop. The finding also echoes the Kennedy court’s description of an advocate arguing his own credibility.

A lawyer’s statement can thus be tested three ways: by discipline under the rule, by a new-trial standard asking whether the verdict was probably influenced, and, for a state criminal conviction, by a constitutional standard asking whether the trial was fundamentally unfair. The second and third standards require an effect on the verdict or the trial, while the first looks only at the lawyer’s conduct. The usual error is to reason from a surviving verdict back to the conclusion that the lawyer did nothing wrong.

The opposite error treats the clause as a ban on discussing credibility at all. Lawyers may urge reasonable conclusions about credibility, and the familiar arguments that testimony hesitated, that statements varied, or that a witness is related to a party are all proper.³⁶ Lawyers should avoid framing these points as their own beliefs, but that restriction is leniently applied so long as the lawyer does not suggest knowing something the jury does not.³⁷ A stray “I think” attached to an argument that walks through the record differs from White’s declaration of lifelong conviction, which rested on nothing the jury saw.

The basis the lawyer offered for the conclusion moved the answer. The first lawyer pointed to the record and let the jurors reach their own verdict on credibility. The second pointed to the lawyer’s own experience and certainty, which the jurors cannot test.

The error that costs the most points is carrying the step 4 standard back into step 3, so that a verdict surviving review is taken to show that no violation occurred.