Law Students, Attorneys: Have you ever encountered a strategy in case law

[Mike 03]

or anecdotally where a defense attorney attempted to pressure the Court into making an error in a ruling for the sole purpose that the verdict, on appeal, had to be obviated or vitiated (or whatever the proper term is) due to reversible error?

I've never heard of such a case, but lately I've had occasion to wonder (for reasons not worth going into here) whether this is a practice by some defense attorneys?

If so, is it more common that we might suspect?

Just curious.

EDIT: Dumb typo. Sorry.

[TimesSquareCowboy]

1. I haven't but I wouldn't be surprised. But it's hard to get a verdict overturned for a judge's error

It certainly happens, but the standard of review gives the trial judge a lot of deference.

[Mike 03]

6. Interesting. I was guessing I had asked a stupid questin and the answer would be no, but

thanks for at least affirming that there is a possibility of such occurring.

[AndyfromNC]

2. Never as a first choice

That would never be a first choice or a primary strategy, but if a Judge is going to do something that is tanking your case, a fall back position is to make sure the the error is as obvious as possible and make sure it is on the record. You will never find that in the the reported case, you would have to read the transcript and the side bar transcript, and then would have to read between the lines.

[Laelth]

4. Welcome to DU!

:toast:

:dem:

-Laelth

[Mike 03]

7. Fascinating. Although I have little experience in this areas, I have found sidebars to be one of

the most enlightening aspects of trial transcripts.

Thx for your input

[Laelth]

3. I think that would be unlikely in a criminal defense situation.

I don't do criminal defense, and I haven't heard of any cases of a criminal defense attorney doing what you describe, but, in most cases, attorneys hope the trial judge gets it right. We'd rather not have to appeal. A trial judge error means I must appeal if my client loses, and the other side has a good excuse to appeal if my client wins. It's a lose-lose situation all around.

:dem:

-Laelth

[Mike 03]

10. This post is interesting. So if the defense attorney himself has to make the appeal, it

would be highly unlikely that he would be the one to "pressure" the judge into making a ruling that was unfavorable to his client?

That makes sense.

So, if I were defending person A, and I tried to admit evidence prejudicial to my client, and the judge finally relented and let it in, I would be skating on thin ice, because I was the one who introduced evidence unfavorable to my own client, rather than that the Court granted my motion to permit it into evidence when I asked him/her to?

I had not thought about the fact that the defense attorney remains the defendant's defense attorney beyond the initial trial.

So, it would not be intelligent of me to intentionally screw up in order to confuse the judge to rule in my favor when it harms my client, regardless of whether or not it comprises reversible error.

This is really fascinating.

I'm learning a lot from the legally-minded DUers here.

Shout out to all of you.

[Laelth]

13. You'd have no ground to appeal if you asked the judge to let that evidence in.

In fact, you must object to that evidence being let in in order to preserve your right to appeal. You don't have a right to appeal when the judge does what you ask ... though the other side would have a right to appeal if they objected and the judge overruled them and improperly let the evidence in.

:dem:

-Laelth

[Tangerine LaBamba]

5. When you say

"... attempted to pressure the Court into making an error ... " are you saying that a lawyer would be trying deliberately to get a judge to do something that might be interpreted as reversible error?

The only instance I can think of is - boy, this goes back to the seventies, and I don't even remember the citation - when a Jesuit priest who was also a civil rights lawyer was in trial, IIRC, defending a Vietnam war protester on one charge or another. Nothing very serious, but it went to trial.

This was in Illinois. The priest defense counsel decided to wear his Roman collar for the trial, and the judge ordered him to remove it and to appear in mufti so as not to influence the jurors (this was before jury selection began). The priest appealed it, and it immediately went up to the appellate court which immediately ruled against him. He ended up dressing as a civilian - the way he always dressed.

But, for the trial, he packed the spectator chamber with nuns - in habits.

The jury brought back a "not guilty" verdict...............

[stranger81]

8. I haven't seen this either,

but then again, I do patent litigation and not criminal defense.

[RJ Connors]

9. Like a friend of mine told me a long time ago.

You will never know more about law, and the theory of law, than the day you get out of law school. Then you get to go and learn how the game gets played at the street level.

But yes, your scenario sounds plausible, especially, as another poster pointed out, if your case is tanking anyway.

[Mike 03]

11. Is it fair to say that, as a rule, or in general, the defense is doing its best to get an

acquittal based on the performance of the defense in raising evidence and objecting as necessary to prosecution points and issues, as opposed to behaving as if the Court is unfair, or raising issues prejudicial to his/her own client in the hope of having the case overturned?

I'm hearing, from what you are saying, that in general Defense Attorneys are doing their best to be successful based on selecting a strategy that is effective as they can safely choose to defend their client.

I appreciate the discussion. It is very edifying to say the least, and I tend to give people the benefit of the doubt, especially when his or her reputation is on the line.

[leveymg]

12. Are you talking about a grey-mail case, where there are national security concerns?

Yes, Scooter Libby tried that. Something like it also happened in the AIPAC case, but that was more a matter of the prosecution misapplying a statute, the 1917 Espionage Act, to impose a de facto Official Secrets Act.

Otherwise, how would a defense attorney pressure a court toward a faulty ruling, may I ask?