Testi-Lied

The Rhode Island Supreme Court found that an attorney’s reference that an expert witness “testi-lied” in cross examination violated the prohibition against expressing personal opinions in court and imposed a public censure.

Violation

Based on the facts and evidence presented at the hearing, the board concluded that respondent clearly violated Rule 3.4(e) by stating in the presence of a jury on cross-examination that a witness had “testi-lied.”

Impact

the board found that respondent made no timely, good-faith effort to rectify the consequences of his misconduct and instead persisted in contending that his conduct—causing a mistrial with its impact of time and negative financial impacts upon the judicial system, the parties to the proceeding, and opposing counsel—was appropriate. The board posited that had respondent made a timely, good-faith effort, such as an immediate apology to the trial justice, opposing counsel, and witness, and a suggestion that the trial justice issue a cautionary instruction to the jury regarding the word “testi-lied,” he could have avoided a mistrial, may have avoided a disciplinary complaint and the subsequent proceedings, and could have benefited from a mitigation of the discipline recommended by the board.

The court noted that this was the first case involving a violation of Rule 3.4(e).

Remorse

The respondent’s letter apologized for use of the term “testi-lie” and explained that it was not his desire or intent to cause a mistrial for his client. While the apology to the trial justice was long-delayed, we commend respondent for now taking responsibility for his actions. The respondent has also indicated to the Court that he will never use the term “testi-lie” or the like again.

The court adopted the board’s proposed sanction. (Mike Frisch)