Prosecutor Misconduct No. 1745432235 - 1089695848

In the matter presently before the court, Attorney Hank Brennan, during opening statements to the jury, asserted that the jurors would witness video footage in which a witness identified as Karen approached another party, Nuttall, and stated, “I hit him, I hit him, I hit him.” However, upon actual presentation and review of the complete available video evidence during the proceedings, no such statement is seen, heard, or otherwise evidenced in the footage.

This discrepancy between counsel’s assertion and the actual evidentiary record raises significant concerns and may warrant allegations of attorney misconduct. The types of misconduct that may be implicated in this instance include:

1. Misrepresentation to the Tribunal (Rule 3.3 of ABA Model Rules of Professional Conduct)

An attorney has a duty of candor toward the tribunal. Knowingly making a false statement of fact or law, or failing to correct a false statement previously made, violates this obligation. If it is found that Attorney Brennan knowingly misrepresented the contents of the video, such conduct would fall under this rule.

Reference:

• ABA Model Rule 3.3 – Candor Toward the Tribunal

• In re Discipline of DeRose, 55 A.3d 126 (D.C. 2012)

2. Improper Argument or Misleading the Jury (Rule 3.4(e))

Under the rules governing fairness to opposing parties and counsel, a lawyer shall not “assert personal knowledge of facts in issue except when testifying as a witness” nor “state a personal opinion as to the justness of a cause, the credibility of a witness… or the guilt or innocence of an accused.” If Brennan knowingly claimed something that the evidence does not support, it may constitute a violation of this rule.

Reference:

• ABA Model Rule 3.4(e) – Fairness to Opposing Party and Counsel

• United States v. Young, 470 U.S. 1 (1985)

3. Violation of Ethical Duties of Honesty and Integrity (Rule 8.4(c))

This rule states it is professional misconduct for a lawyer to “engage in conduct involving dishonesty, fraud, deceit, or misrepresentation.” Mischaracterizing evidence in a way likely to influence the jury may fall squarely within this provision.

Reference:

• ABA Model Rule 8.4(c) – Misconduct

• In re Discipline of Attorney XYZ, 770 N.W.2d 831 (Minn. 2009)

4. Prejudicial Conduct Affecting the Administration of Justice (Rule 8.4(d))

Should it be shown that Brennan’s misstatement was calculated or reckless, and designed to improperly influence the jury, such conduct may also be deemed prejudicial to the administration of justice.

Reference:

• ABA Model Rule 8.4(d)

• United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993)

Conclusion

If it is determined that the claim made by Attorney Hank Brennan regarding the content of the video was knowingly false or recklessly made, it would constitute a serious breach of professional ethics. Such conduct could subject the attorney to sanctions, disciplinary proceedings before the state bar, or motions for mistrial or curative instructions. It is essential for the integrity of the legal system that all officers of the court adhere to their duties of truthfulness and fairness, particularly in statements made before a jury.