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Judicial Landmines - MN Bench Book - Trial Procedures & Practices for Judges
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Judicial Landmines

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.