Lawyer censured for 'testi-lied' remark about witness testimony
The Rhode Island Supreme Court has publicly censured a lawyer in Cranston, Rhode Island, for commenting that an expert witness had “testi-lied,” leading to a mistrial. Image from Shutterstock.
A Rhode Island lawyer has been censured for commenting that an expert witness had “testi-lied,” leading to a mistrial.
Bossian was representing a passenger in an auto accident in a March 2020 trial when he made the comment, according to the Rhode Island Supreme Court.
Bossian began to cross-examine an expert witness whose testimony conflicted with his accident report about a collision happening on the passenger side of a Jeep Cherokee. The expert testified that the collision happened on the driver’s side.
Bossian told the witness that he was going to read from his report.
“Let me read it,” Bossian said. “The record is going to bear out what you testi-lied to.”
“Testi-lied?” the judge said before requiring jurors to leave the courtroom.
According to the Rhode Island Supreme Court, the judge tried to caution Bossian, but the lawyer insisted that his conduct was appropriate and suggested that the judge begin proceedings against the expert for perjury.
The judge declared a mistrial and reported Bossian to disciplinary counsel. In a “long-delayed” letter to the judge, sent after an ethics hearing before the state supreme court’s disciplinary board, Bossian apologized for using the term “testi-lie.” He also wrote that he did not intend or want to cause a mistrial.
The Rhode Island Supreme Court said Bossian had violated an ethics rule barring lawyers at trial from stating a personal opinion as to the credibility of a witness. The matter is the first ethics case in the state involving a sanction for the rule violation.
“While the apology to the trial justice was long-delayed,” the Rhode Island Supreme Court said, “we commend [Bossian] for now taking responsibility for his actions.”
Bossian has also indicated that he will never again use the term “testi-lie,” the state supreme court said.
Another mitigating factor in the misconduct was that Bossian had received no prior discipline in 36 years of law practice.
Bossian told the Providence Journal that he respects the Rhode Island Supreme Court’s decision, but he respectfully disagrees with the state supreme court’s order.
“Supreme court decisions are not final because they are right, they are right because they are final,” he said, quoting a prior Rhode Island chief justice.
He also said he is “sincerely thankful” that he received procedural justice from the current chief disciplinary counsel and her deputy chief.
Bossian told the Providence Journal that the order against him was a case of “first impression.” He also cited two other state supreme court decisions that he thought were at odds with the new decision. In those cases:
- The Rhode Island Supreme Court ruled that a prosecutor’s reference to a witness as a liar did not deprive a defendant of a fair trial. The statement was based on a discrepancy between trial testimony and a prior signed statement. The state supreme court said jurors could draw conclusions about the witness.
- The Rhode Island Supreme Court ruled that a trial judge wrongly granted a new trial based on a lawyer’s “interrogation” of a witness. The questioning was not so prejudicial as to constitute improper conduct, the state supreme court said.