From MN Bench Book - Trial Procedures & Practices for Judges
The following are called “Judicial Landmines” because if a judge fails to properly address, or implement any one of them the consequences could be mistrial, reversal of a guilty verdict, and in some cases a double jeopardy bar to re-trial.
- 1. Failing to obtain an adequate waiver of 5th amendment rights of defendant.
- This includes failure to obtain specific waiver of right to testify or not testify by defendant.
- 2. Inadequate stipulation of prior conviction or element of charged offense.
- This includes failure to obtain factual basis and waiver of trial rights by defendant. The trial judge should treat a stipulation to a prior conviction or an element of the charge as a plea of guilty to that element.
- 3. Inadequate waiver of jury trial.
- This includes failure to obtain specific waiver on the record of the right by defendant.
- 4. Granting a mistrial over objection of the Defendant if the defendant was not the cause of the proposed mistrial.
- 5. Failure to stop improper prosecutorial final argument.
- 6. Including the name of the defendant on witness list read to jury.
- 7. Failure to or Inadequate advising of dangers of joint representation to joint defendants when two defendants represented by same attorney.
- 8. Inadequate waiver of right to be represented by an attorney when defendant. is proceeding Pro Se.
- 9. Denial of defendant’s right to proceed Pro Se without adequate findings of reason for denial.
- 10. Inadequate waiver of rights and factual basis during guilty plea by pro se defendant.
- 11. Denial of a defendant’s witness to testify because of defendant’s failure to properly notify prosecution of witness name.
- 12. Failure to get an adequate waiver of Crawford/confrontation issues, this includes obtaining an on the record knowingly-intelligent-and voluntary waiver.
- 13. Setting time limits for Voire Dire.
- 14. Not providing defendant with civilian clothing during trial.
- 15. Allowing prejudicial physical evidence to go to the jury.
- 16. Judicial Communication with jury during deliberations without advising defendant of jury question.
- 17. Entering jury deliberation room during deliberations.
- 18. Sexist or biased comments by judge made to staff, attorneys, witnesses, or other person. Engaging in this type of behavior could result in a complaint filed against the judge with the Judicial Standards Board and or a civil law suit alleging a violation of the person’s civil rights.
- 19. There are many other “Judicial Landmines” that a judge should become aware of and avoid "stepping" on.