imPeaCHing a Witness Has Limitations
Trial & litigation Section
Chair:MorganStreetman-StreetmanLaw
it is clear that altering
evidence in a case, in
order to zealously
represent a client,
T
he agony and ecstasy
of trial work is what
draws the most
adventurous of lawyers
to make maximum efforts for
clients. However, as lawyers, we
must always remember that we
are constrained by the facts and
the law. In Florida Bar v. Schwartz, 1
the Florida Supreme Court recently
expressed its dissatisfaction with
a lawyer and referee’s analysis of
corrupting evidence in order to
impeach a witness.
Schwartz was retained to
represent a serial felony defendant
and in preparation for trial, he
scheduled a deposition for the crime
victim and attempted to impeach
her memory and credibility by
altering evidence in the case.
Schwartz presented copies of the
original photo lineup to the victim
at deposition, where “the victim
had originally signed her name and
identified the defendant by circling
both the defendant’s photograph
and the designation below it of
subject number five.” Id. at 395.
The Florida Bar charged Schwartz
with a violation of the Rules
Regulating the Florida Bar 3-4.3
and 4-8.4(c), where a “lawyer shall
not engage in conduct involving
dishonesty, fraud, deceit or
misrepresentation,” because
“Schwartz altered the photo lineup
is not covered by the
impeachment rule.
by replacing his client’s image in
one exhibit with the image of an
alternate suspect whom witnesses
other than the victim had identified
as the perpetrator and by changing
the client’s image in the other
exhibit by imposing the alternate
subject’s hairstyle on the client’s
image. Although the images in
the exhibits were altered in this
manner, they nonetheless retained
the circle around subject number
five and the signatures of the
victim and police officer below
the photographs.” Id.
At the disciplinary hearing, the
referee found that Schwartz did not
possess a wrongful motive or intent
to corrupt the discovery process.
However, the Supreme Court
rejected the referee’s findings and
explained that a violation of the
rule barring fraud or deceit requires
that the “the Bar must prove
intent.” 2 However, proving intent
can be satisfied “merely by showing
that the conduct was deliberate or
knowing.” 3 “Therefore, the motive
underlying the lawyer’s conduct is
not determinative; instead the issue
is whether he or she purposefully
acted.” 4
The Supreme Court clarified
that Schwartz’s actions did not
adhere to the ethical rules and
asserted that “[o]ur consideration
of the defense-altered exhibits leads
to the inevitable conclusion that
they are deceptive on their face.” 5
The Supreme Court held that that
the referee’s findings were “clearly
erroneous” and required “a newly
appointed referee for a hearing
limited to a determination of
recommended discipline.” 6 It is
clear that altering evidence in a case,
in order to zealously represent a
client, is certainly not covered by
the impeachment rule. 7 n
284 So.3d 393 (Fla. 2019).
Fla. Bar v. Brown, 905 So. 2d 76,
81 (Fla. 2005).
3 Schwartz at 396.
4 Florida Bar v. Berthiaume, 78 So.
3d 503, 510 n.2 (Fla. 2011); Fla. Bar v.
Riggs, 944 So. 2d 167, 171 (Fla. 2006);
Fla. Bar v. Smith, 866 So. 2d 41, 46
(Fla. 2004).
5 Schwartz at 396.
6 Id at 398.
7 See Florida
Statute § 90.608
(2019).
1
2
Author:
Caroline Johnson
Levine - Bay
Area Legal
Services, Inc.
Government Attorneys Can Join the HCBA at a reduced rate! Visit hillsbar.com.
54
MAR - APR 2020
|
HCBA LAWYER