From MN Bench Book - Trial Procedures & Practices for Judges
PROCEDURE & MANAGEMENT METHODS
To prevent jurors from being improperly influenced or prejudiced, evidentiary and procedural issues that arise during the trial must be heard outside of the jury’s hearing, either in a conference in chambers or in a bench conference. The typical bench conference concerns are evidentiary arguments, offers to stipulate, offers of proof, motions, and any sensitive areas of inquiry. If counsel wishes to discuss such a matter, he must first request leave to approach the bench.
DEFENDANT’S RIGHT TO PARTICIPATE
Minnesota courts have never directly addressed this question. Case law does provide that, in the absence of an affirmative request to be present, made by the defendant, the presence of counsel is sufficient. In practice, the defendant rarely makes the request.
Left unresolved is the question of whether an affirmative request must be granted. Pragmatically, it is always safe practice to grant the request, and the only counter-interests are courtroom safety and waste of time. Legally, there is a weak indication that the court must allow it. At the same time, the worst outcome is that the appellate court would review the exclusion of the defendant on harmless error grounds, and that has yet to result in overturning a verdict.
Contrary to federal law and most states, Minnesota statute does not distinguish between conferences of a purely procedural character and conferences of a substantive nature. (Note: it does separate in-chamber discussions regarding matters of law).
As well, when there is a legitimate security concern, the defendant can be restricted from attending bench conferences.
PROCEDURES TO REDUCE JURY HEARING BENCH CONFERENCE DIALOGUE
It is axiomatic that the jury should not hear bench conference dialogues. While not required in many jurisdictions, many judges do record bench conferences. In Minnesota, the trial court has considerable discretion to employ various methods to ensure that the jury does hear the statements made during bench conferences. Most judges instruct the jury at the beginning of the trial that during bench conferences the members of the jury should talk among themselves about anything other than the trial. Judges also instruct juries that bench conferences would be a good time to stand up and stretch. Jurors engaging in either or both of these dynamics are less likely to hear the statements made during a bench conference. For lengthy discussions, the best procedure is to hold the conference in chambers or excuse the jury from the courtroom and hear the arguements in the courtroom. A new method to assist in recording bench conference is to use a small portable FM wireless microphone that via a radio sends the audio portion of a bench conference to dedicated receivers at the counsel table and court reporter’s station.
DENIAL OF ATTORNEY’S REQUEST FOR BENCH CONFERENCE
Under state law, the only valid reason to deny a request for a bench conference is when counsel is making an unnecessary offer of proof—That is, when the substance of the proffered testimony is obvious. As well, if the result of the denial is that the jury is exposed to improper or prejudicial information, beyond harmless error, the judgment can be reversed, so it is best to be cautious when denying a request. It is within the court’s discretion to deny a request for a bench conference if the attorney requested it has abuse the privilege of asking for a bench conference by excessive requests for them. If an attorney requests a bench conference and the reason is not apparent from the stage of the trial and questioning the court should ask the attorney why they are requesting a bench conference, directing the attorney not to go into the specifics of the reason, i.e. Counsel do you have an objection or a motion to make?
- See Minn.R.Evid 104(c): “Hearings on the admissibility of confessions shall in all cases be conducted out of the hearing of the jury. Hearings on other preliminary matters shall be so conducted when the interests of justice require or, when an accused is a witness, and so requests.” See also Minn.R.Crim.P. 26.03, subd. 18(3) which provides the parties the opportunity to object out of the hearing and presence of the jury. NOTE, however, that Minnesota state Civil Procedure does not contain the federal civil rule, Fed.R.Civ.P. 51, which affords the parties a similar opportunity to object outside of the hearing of the jury,
- 51 M. S. A., Civ. Trialbook Section 10(h):
- (1) Arguments: Evidentiary arguments and offers of proof as provided for in section 10(a) of this Trialbook;
- (2) Offers to Stipulate: Counsel shall not confer about stipulations within possible jury hearing, nor without leave of the court when such conference would impede trial progress;
- (3) Requests for Objects: Other than requests to a witness during testimony, requests by a party to opposing counsel for objects or information purportedly in the possession of the opposing counsel or party shall be made outside the hearing of jurors;
- (4) Motions: Motions for judgments on the pleadings, to exclude evidence, directed verdict, and mistrial shall be made and argued outside the hearing of the jurors. If the ruling affects the issues to be tried by the jury, the court, after consulting with counsel, shall advise the jurors. Immediately upon granting a motion to strike any evidence or arguments to the jury, the court shall instruct the jury to disregard the matter stricken; and
- (5) Sensitive Areas of Inquiry: Areas of inquiry reasonably anticipated to be inflammatory, highly prejudicial, or inadmissible, shall be brought to the attention of opposing counsel and the court outside the hearing of jurors before inquiry. A question of a witness shall be framed to avoid the suggestion of any inadmissible matter.
- 3A Minn. Prac., Gen. Rules Of Prac. Ann. § 10 (2007 ed.), subd.(l): “Policy on Approaching the Bench. Except with approval of the court, persons in the courtroom shall not traverse the area between the bench and counsel table, and counsel shall so instruct parties they represent, witnesses they call, and persons accompanying them.” See also 5 Minn. Prac., Methods Of Practice: Civil Advocacy § 3.2.7 (2007 ed.) (“…The attorneys should request permission to approach the bench and talk quietly with the judge when a topic must not be heard by the jury.”)
- “[A] defendant is guaranteed the right to be present at any stage of the criminal proceeding that is critical to its outcome if his presence would contribute to the fairness of the procedure.” Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658 (1987). See also Snyder v. Massachusetts, 291 U.S. 97, 108, 54 S.Ct. 330, 332, 78 L.Ed. 674 (1934) (The right exists “to the extent that a fair and just hearing would be thwarted by his absence.”)
- 49 M.S.A., Rules Crim.Proc., Rule 26.03, subd.(1): “The defendant shall be present at the arraignment, at the time of the plea, at every stage of the trial including the impaneling of the jury and the return of the verdict, and at the imposition of sentence…”
- Also unaddressed is the specific question as to whether a bench conference is even a “stage of the trial” for statutory purposes would be an issue of first impression. (Federal case law exists holding that in-chamber conferences are not a critical stage of the trial, see infra, but that would be overborne by the broader state statutory rule).
- “While it is the preferred practice, a defendant is not required to explicitly affirm to the district court his personal waiver of his due process right to be present at a stage of trial.” State v. Martin, 723 N.W.2d 613, 619 (Minn.,2006).
- “Defendant next argues that his exclusion from bench and chambers conferences violated his right to be present at all stages of the trial. Standby counsel had been appointed as required to ensure defendant a fair trial. Defendant at the outset indicated his desire to have his standby counsel argue motions for him. He makes no claim that his advisory counsel were ill-equipped to handle the bench and chambers conferences or that their participation was unsolicited. Defendant's additional presence at the conferences would not have ‘contribute [d] to the fairness of the procedure.’” State v. Richards, 495 N.W.2d 187, 196 (Minn.,1992). Even if an appellate court were to hold that the defendant must be allowed to attend, the ruling would be reviewed for harmless error, see infra.
- See infra.
- A handful of cases have held that precluding the attendance of the defendant is harmless error, granting a negative implication that the defendant had an initial right to be present; further, none of those cases specifically involved an affirmative request by the defendant. See infra; State v. Richards, 495 N.W.2d 187, 196 (Minn.,1992); State v. Moon, 2006 WL 1984611 (Minn.App.2006); see also State v. Sessions, 621 N.W.2d 751, 755 (Minn.,2001) (“Even if a defendant is wrongfully denied the right to be present at every stage of trial, a new trial is warranted only if the error was not harmless.”).
- “When a defendant is denied the right to be present at a stage of trial, a new trial is not warranted if the error was harmless beyond a reasonable doubt or, in other words, if the verdict was surely unattributable to the error.” State v. Moon, 2006 WL 1984611 (Minn.App.2006); see also State v. Sessions, 621 N.W.2d 751, 755 (Minn.,2001) (“Even if a defendant is wrongfully denied the right to be present at every stage of trial, a new trial is warranted only if the error was not harmless.”); see also State v. Richards, 495 N.W.2d 187, 196 (“Defendant's additional presence at the conferences would not have ‘contribute [d] to the fairness of the procedure.’”).
- State case law does exist holding that the right to participate does not extend to bench conferences regarding purely procedural issues, see State v. Farrar, 271 Minn. 330, 332, 136 N.W.2d 68 (Minn.,1965). Federal law also holds the same, see infra. However, that case law is not controlling, as it considers the right to participate within its constitutional bounds only. The broader state statutory right pre-empts. See State v. Charles, 634 N.W.2d 425, 432 (Minn.App.,2001) (“Under the United States Constitution, a criminal defendant has the right to be present at every critical stage of the criminal proceedings. Minnesota provides a broader right by requiring that a defendant be present at ‘every stage of the trial.’”) (citations omitted.)
- “However this right does not extend to in-chambers arguments on questions of law.” State v. Holmes, 374 N.W.2d 457, 459 (Minn.App.,1985). See also U.S. v. Gunter, 631 F.2d 583, 589 (C.A.Ark., 1980) (“In addition, we would not characterize the in-chambers proceeding at issue as a stage of the trial but as a conference upon a question of law, at which the defendant need not be present.”)
- State v. Richards, 495 N.W.2d 187 (Minn. 1992) (affirming that it was not a violation of defendant’s due process right when he was restricted from bench conferences because of security concerns).
- 11A Minn. Prac., Courtroom Handbook Of Minn. Evid. R 103 (2007 ed.) (c) “Hearing of jury: In jury cases, proceedings shall be conducted, to the extent practicable, so as to prevent inadmissible evidence from being suggested to the jury by any means, such as making statements or offers of proof or asking questions in the hearing of the jury.”
- Minn. Civ. Trialbook Section 10(a) “Argument, if allowed by the court, and any offer of proof shall be made outside of the hearing of the jury and on the record.”
- 50 M.S.A., Rules of Evid., Rule 103(c) COMMITTEE COMMENT—1989: “The rule gives the court the discretion in the conduct of the trial to employ procedures that would minimize the possibility of inadmissible evidence being suggested to the jury.”
- [A] formal offer of proof is not necessary when an objection is sustained to a question calling for an answer which would obviously elicit material and relevant evidence. Linderoth v. Kieffer, 162 Minn. 440, 443, 203 N.W. 415 (1925); see also Patterson-Stocking v. Dunn Bros. Storage Warehouses, 201 Minn. 308, 309, 276 N.W. 737, 738–39 (1937) (“ The record reveals that counsel on both sides and the trial judge fully understood the purpose of the excluded testimony, and a formal offer of proof was not necessary under the circumstances.”); In re M.P.Y., 630 N.W.2d 411, 415 (Minn. 2001) (ruling that an offer of proof was not necessary when the substance of the precluded testimony was made apparent in counsel's opening statement).