Watch this clip from Anatomy of a Murder to see an attorney crossing the legal boundary of a proper cross-examination. Note that one of America’s war heroes and favorite actors is playing dirty.
Model Rule of Professional Conduct 3.04 : A lawyer shall not: . . .
(c) except as stated in paragraph (d), in representing a client before a tribunal: . . .
(2) state or allude to any matter that the lawyer does not reasonably believe is relevant to such proceeding or that will not be supported by admissible evidence, or assert personal knowledge of facts in issue except when testifying as a witness;
It is improper to assert a fact in a question that the lawyer does not have a good faith basis to believe will be supported by the evidence. In State v. Lowe, 843 N.E.2d 1243, 1246, 164 Ohio App. 3d 726, 729 (2005) was faced with a situation where opposing counsel failed to object to such a question and the Ohio Appellate Court held as follows:
“It is improper to attempt to prove a case by insinuation or innuendo, rather than with evidence. Questions that are not based on fact or for which there is no good-faith basis are improper.
“By its nature, cross-examination often involves a tentative and probing approach to testimony given on direct examination. State v. Gillard (1988), 40 Ohio St. 3d 226, 231. Therefore, the examiner need not lay an evidentiary foundation before posing questions upon cross-examination. It is sufficient if there is a good-faith basis to question the witness on the subject.
“Where the good-faith basis for a question is not challenged at the trial level, it is presumed that such a basis exists. ‘Since the prosecutor’s good-faith basis for asking these questions was never challenged, we presume she had one.’”
The lessons are clear. First, don’t ask a cross-examination question that you don’t have a good faith basis to believe will be supported by the evidence. Second, if opposing counsel asks such a question, object.
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