Fraud is hard to prove because of “intentional” component
At best Heinecke would argue that he didn’t intentionally give any false evidence. If a proceeding (or brief) got to that point, thought should be given to arguing that Heinecke’s misrepresentation raises to a level of fraud under contract principles.
The argument goes like this:
In any judicial proceeding, the lawyers and the judge are bound by an oral contract to follow the codes of professional conduct. The oral agreement is basically, that the parties agree to act honestly and in return, the judge agrees to render an impartial decision. Pertinent rules seen below:
Rule 3.3. Candor Toward the Tribunal. (NEVADA RULES OF PROFESSIONAL CONDUCT)
(a) A lawyer shall not knowingly:
(1) Make a false statement of fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
(2) Fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
(3) Offer evidence that the lawyer knows to be false.
Rule 3.4. Fairness to Opposing Party and Counsel. (NEVADA RULES OF PROFESSIONAL CONDUCT) A lawyer shall not:
(a) Unlawfully obstruct another party’s access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value. A lawyer shall not counsel or assist another person to do any such act;
(b) Falsify evidence, counsel or assist a witness to testify falsely, or offer an inducement to a witness that is prohibited by law;
Rule 2.2. Impartiality and Fairness. A judge shall uphold and apply the law, and shall perform all duties of judicial office fairly and impartially. (Nevada judicial conduct code)
Further, under established contract law, there are three forms of misrepresentation:
- Innocent
- Negligent
- Intentional
The remedy for negligent misrepresentation, is rescission of the contract (the judicial decision) and damages.
It could certainly be argued that when the defense put on an expert witness that gave written testimony that was at odds with basic research ethics principles that he himself had taught, that, if not outright fraud, this misrepresentation was gross negligence that was tantamount to fraud under established legal principles and thus the contract requirement of tribunal honesty was breached by the Hikma defense team and the “contract” (decision) should be rescinded and damages awarded.
It is a bit of a stretch, but not as tough as proving what was in the mind of an expert witness when he gave misleading testimony.
