A GOOD FAITH BASIS..........by Steve Duhl 
Thursday, August 19, 2010, 01:12 PM
Posted by Administrator
An important issue relating to lawyer's conduct in the courtroom that doesn't come up much is the "good faith basis" that lawyers need to have before they ask a witness certain questions. The idea is that lawyers are generally believed by judges and juries (really, we are) and that if a lawyer asked a witness:

"How many times have you been convicted of a felony, Mr Jones."

The judge or jury (whichever the trier of fact happens to be) is likely to assume.....no matter what Mr. Jones says......that he is a convicted felon. So, if a lawyer is going to ask:

-About criminal convictions.
-About criminality.
-About drug use. ("You are a heroin addict, right Mr. Jones?)
-About immorality. ("You lie every day, don't you, Mr. Jones? ...and you have 3 wives, right?
-About the witness having done something extremely stupid...

...the lawyer is supposed to have a good faith basis for asking the question. That is, the lawyer is supposed to have a good reason for believing that the truthful answer to the question is "yes".

Lawyers learn this in one of two ways:
-Paying attention in evidence class.
-Asking a witness an objectionable question (this morning, a lawyer asked my client "Do you use drugs?")...without that "good faith basis" and then getting yelled at by the judge.

A good faith basis for asking someone about a criminal conviction probably can only come from having court records indicating a conviction. For drug use, the good faith basis might come from having observed the witness to always seem high. A few months ago, I asked a witness "Is that because you shot yourself in the head?"

At the time I asked the "shot yourself in the head questions", the witness had already testified about mental problems that arose fairly recently and someone had told me that he had shot himself in the head. The judge wouldn't make the witness answer the question...(and the judge was wrong). (On the other hand, the judge knew by my question that he probably had shot himself in the head....so, there wouldn't have been much point in him/her requiring the witness to answer.)

Lawyers who without a "good faith basis", ask questions that....by virtue of the question itself...impugn the integrity of the witness are subject to being sanctioned by the court. And, of if the question is asked in front of a jury...let's say by the prosecutor, the jury ought to be told:

"Ladies and gentlement, the prosecutor, Mr. Smith's, question was improper...he did not have a basis for asking the defendant whether he sold drugs to school children and you must ignore the question." And the jury will think either :
1-The prosecutor, Mr. Smith, is a no-good cheat to have questioned the integrity of that nice criminal defendant and the prosecutor is not worth believing...the jury will then go on to find the defendant not guilty, or,
2-The judge is just telling us that good-faith-basis-thing because of some technical legal rule that we-the-jury don't care about... the defendant did sell drugs to school children (though whether or not he did has nothing to do with the charges in the case we are deciding) and we're gonna go ahead and convict the bastard because anybody who the prosecutor suggests might have sold drugs to school children ought to be in prison whether or not that has anything to do with what he is charged with now.

OK, probably #2.
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