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Univ. of South Carolina School of Law

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Thursday, February 7, 2008

Evidence And Ethics 9: Joseph Colquitt's Evidence and Ethics: Litigating in the Shadows of the Rules

University of Alabama School of Law Professor Joseph Colquitt's contribution to the Evidence and Ethics Symposium is his article, Evidence and Ethics: Litigating in the Shadows of the Rules.  The article raises a fascinating ethical issue:  What should an attorney do when opposing counsel offers a stipulation, the court finds that the attorney does not have to accept the stipulation, and yet the attorney knows that the evidence he seeks to admit is highly prejudicial.  Professor Colquitt opens his article with 2 intriguing scenarios, both partially based off of real world cases:

     -In Scenario 1, "[t]he socially prominent wife of a well-known physician stands charged with capital murder.  The charge arises out of the brutal murder of her husband in their home by an individual allegedly hired by the wife to kill the husband.  The prosecution asserts that the wife was motivated by her desire to obtain the husband's multimillion-dollar estate and to continue her social liaisons with several men.  Both the husband-victim and the wife are white.  The prosecution will call a former paramour to the stand to testify to the liaisons.  The witness is African-American, and he was married, with children, at the time of his sexual liaisons with the defendant."

Colquitt notes that the prosecution could offer this witness' testimony to prove motive and that if the judge finds it admissible, defense counsel could offer a stipulation that the defendant engaged in several extramarital affairs.  The judge could then find that the prosecution would not need to accept this stipulation, but Colquitt wonders whether it should, noting the highly prejudicial effect of such testimony and the prosecutor's obligation to the public.

     -In scenario 2, "[a] man is charged with rape, based on a woman's allegation that she was raped by an acquaintance during a date.  She reported to the police that she and the man had been dating rather frequently for some period of time, and that the man sexually assaulted her when they returned to her home from a social event.  During an ensuing police interrogation, the accused insisted that the sexual acts were consensual.  He stated that after the sexual relations an argument ensued, and he departed.  Shortly thereafter, she called the police and accused the man of rape.

     To prove that the allegation is false, the defense will call a witness to prove that the prosecutrix made a previous false claim of rape.  Both the current defendant and the prosecutrix are white.  The potential witness is African-American.  He will testify to a similar experience with the prosecutrix when they were dating."

Colquitt notes that if the judge finds this witness' testimony admissible, the prosecution could offer a stipulation that the prosecutrix previously claimed falsely that she was raped by another man.  The judge could then find that defense counsel would not need to accept this stipulation, but Colquitt again wonders whether it should, noting the highly prejudicial effect of such testimony.

After comprehensively analyzing these scenarios in Parts I and II, in Part III Colquitt contends that we should not only "provide counsel with some standards or rules (as we do), but that we also should school counsel that as attorneys they will be called upon to exercise professional judgment, and in doing so, they may have to rely on their professional conscience to identify the appropriate course of action."  I find the points raised by the article to be very interesting and plan on incorporating them into my "stipulation" materials the next time I teach Evidence.

-CM

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