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EFFECTIVE COMMUNICATION IN AND CONTROL OF THE COURTROOM - MN Bench Book - Trial Procedures & Practices for Judges
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EFFECTIVE COMMUNICATION IN AND CONTROL OF THE COURTROOM

From MN Bench Book - Trial Procedures & Practices for Judges

A. Use pronoun "I" as well as "the court.
B. Speak in active rather than passive voice. Directs attorneys' behavior rather than requesting it in passive voice.
For example "Please go back to counsel table" which is the active voice expressing direction and command rather than "I would like you to go back to counsel table." Which is the passive voice. This latter phrase expresses desire that attorneys can decide whether or not to comply with. Obviously the attorney(s) will go back to the counsel table but implicitly are doing so of their own volition rather than following the judge's direction.
C. Speak in 1st person rather than third person
For example “I have overruled that objection counsel” rather than “The court has overruled that objection.”
D. Voice level, speak loud, does not drop voice level at end of sentence.
E. Describe internal emotional states when appropriate.
For example; "Counsel your behavior is unacceptable to me,” or “I am concerned about your behavior.”
F. Modulate voice level to express intensity of concern.
G. Maintain eye contact with attorneys, witness and jurors when speaking to them.
H. Limts use of polite speech conventions when stopping behavior or speaking that you want stopped.
For example; Saying "excuse me counsel" when judge wants attorney or witness to stop speaking.
J. Refer to attorneys by:
Name
"Counsel"
Alternates terms to indicate focus on particular attorney.
K. Regulate and controls movement of attorneys in court room.
Communicates rules for requesting permission to approach own and oppossing witnesses.
L. Timeliness.
Begin court at time previously announced.
Limit breaks to time stated.
Goes on bench at announced time even if attorney(s) are not in courtroom unless attorney has contacted judge about time conflict.
Apologizes to jury for delayed start. Does not "blame' attorneys or clerks or staff for delay.
M. Initiate control mechanisms.
Does not wait for an defense attorney to object if inadmissible evidence is being elicited.
Limit direct or cross prior to objection from opposing attorney.
Decision to act in this area is very complex in criminal case.
Limit re-direct or re-cross to scope of prior cross or re-direct.
Indicate to attorney what specific behavior which is unacceptable.
N. Hold bench conference and chambers conference to discuss inappropriate/unacceptable behavior.
O. Inform attorney of consequence of continuing inappropriate/unacceptable behavior.
P: Inform attorney the judge will comment on their inappropriate behavior, if it continues, in presence of jury.
Q. Impose consequence for inappropriate unacceptable behavior.
R. Inform attorney they will be found in contempt for continued inappropriate/unacceptable behavior.
Made outside presence of jury.
S. Hold attorney in contempt and immediately imposes a sanction.
Outside presence of jury.
T. Use body posture and hand gestures to regulated attorney and witness conduct and speech.
U. Monitors own non-verbal communication to limit its effect on jurors. Does not engage in the following behavior(s).
Rolling eyes,
Turning away from witness,
Turning toward a witness who is testifying unless donig so for all witnesses,
Shaking head,
looks away from witness who is testifying,
Raises eye brows in response to a witnesses statement,
V. Know standards for granting mistrial, do not make decision quickly. Do double jeopardy analysis before granting mistrial.
W. Initiate physical separation of attorneys, defendant or parties (separating counsel table) if physical closeness is causing problems.